A Federal District Court judge for the Northern District of Texasruled the Affordable Care Act(ACA) unconstitutional on Friday night.  Judge Reed O’Connor, a George W. Bushappointee, wrote that “[the] Individual Mandate can no longer be fairly read as an exercise of Congress’s Tax Power and is still impermissible under the Interstate Commerce Clause—meaning the Individual Mandate is unconstitutional.”   

Because the Supreme Court in 2010 allowed the individual coverage mandate to stand as a tax, and Congress reduced the tax to zero in 2017, Reed argues, the entire law violates the Constitution since Congress has no power to require coverage except as a tax.  Democrats will of course appeal this decision and may have the stronger argument.  The ruling ignores the fact that Congress simply changed the tax rate – the tax itself remains in place.  Until outright repeal, the law still rests on exercise on the power to tax even as Congress exercises its discretion by applying a zero rate.  It’s also not clear that the entire law fails without the mandate.  The US Supreme Court will of course adjudicate this question – and when it does all eyes will turn to Gorsuchand Kavanaugh.

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