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The time Obamacare’s opponents won by losing

Dylan Scott covers health care for Vox. He has reported on health policy for more than 10 years, writing for Governing magazine, Talking Points Memo and STAT before joining Vox in 2017.

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The following is an outtake from our oral history of Obamacare's near-death experiences.

Randy Barnett is maybe the person who, prior to last month, had come closest to killing Obamacare. He was one of the legal minds behind the Supreme Court case that sought to overturn the law's individual mandate and, by extension, the entire law.

He came up just short, as you probably remember. Chief Justice John Roberts ruled that the mandate was permissible under Congress's constitutional authority to levy taxes. The law stood, was implemented, and still stands today after Republicans failed to repeal it.

Barnett remembered what it was like to watch the decision come down when I called him up earlier this month. He remembered that his mom, like so many other people, was misled by the early news reports that Roberts had struck down the mandate.

But he shared another insight, something he has come to appreciate in the years since:

In a way, Barnett argued, Obamacare's opponents actually won the Supreme Court case.

"It really was a legitimate half-win," he told me.

It comes down to the rationale that Roberts used to justify the mandate's constitutionality — the rationale that actually led to all the confusion about his ruling in the first place.

The Obama administration sought to justify the mandate — the penalty that people must pay if they go without insurance, an essential policy for the law to function — in a few different ways, including:

  • Under Congress's authority to regulate commerce (i.e., its oversight of the insurance industry)
  • Under Congress's authority to levy taxes (i.e., to impose a fine on people for lacking insurance)

(I'm setting aside a third argument for the mandate, under the so-called Necessary and Proper Clause, because this is wonky enough as is.)

During the case, the first argument got all of the attention. Could Congress require Americans to purchase insurance? When the law's opponents portrayed Obamacare as a unique affront to personal liberty, this is what they had in mind.

In the end, though, Roberts upheld the law under the second, far-less-discussed argument: that Congress had the constitutional right to "tax" Americans for failing to purchase health insurance.

But he defaulted to that decision because he actually agreed with Obamacare's opponents on the first point: Congress did not have the constitutional authority to require people to purchase insurance, he ruled.

That's why Barnett claims half a win in the case.

"There was more at stake than Obamacare," he said. "All future purchase mandates" were on the line.

Because Roberts sided with the law's critics on that point in his ruling, any future attempt by Congress to mandate a commodity's purchase could be constitutionally suspect. (Granted, such a circumstance may never come along, but legal theory is important to lawyers, for obvious reasons.)

Limited-government conservatives who were so appalled by the mandate in the first place can claim a big ideological win on that point.

"Normally when you win on the law, you win the case. Conversely if you lose the case, that means you lose on the law," Barnett explained.

"A lot of pressure was on us not to make the Constitution worse than it was when we found it," he continued. "It was not as bad as it would have been if the government’s justification under the commerce power had been accepted."

I thought it was a fascinating wrinkle, one that requires some distance to fully appreciate, and a reminder that Obamacare will leave a huge mark on not only American health care but on constitutional law as well.

Chart of the Day

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If you're reading this, you're okay. Wondering why you weren't supposed to look directly at the sun today? Vox's Brian Resnick explained the medical science well. Check out some super-cool photos of the eclipse here.

Kliff’s Notes

With research help from Caitlin Davis

Today's top news

  • "Republicans Face Looming Deadline on Health Law": “Lawmakers returning to the Capitol from recess on Sept. 5 will have only 12 legislative days to decide whether to pass a bipartisan bill aimed at bolstering the ACA’s markets before insurers must commit to participating in the law’s exchanges in 2018.” —Stephanie Armour and Michelle Hackman, Wall Street Journal
  • "Mitch McConnell acknowledges that path forward on healthcare is 'murky'": "Republicans face a 'murky' path forward on healthcare legislation, Senate Majority Leader Mitch McConnell acknowledged Monday. Having failed before the August recess to pass legislation repealing or altering Obamacare, 'the way forward now is somewhat murky,' McConnell said at a Chamber of Commerce event in Louisville.” —Joseph Lawler, Washington Examiner
  • "With Congress deadlocked, Iowa and Oklahoma seek to reform the ACA through waivers": “Iowa and Oklahoma are about to test the Trump administration's declared commitment to giving states greater leeway in establishing alternatives to the Affordable Care Act's insurance exchanges.” —Harris Meyer, Modern Healthcare

Analysis and longer reads

  • "Past health chiefs: insurance market stability is the goal": “Stability should be the immediate goal, said former Health and Human Services secretaries Kathleen Sebelius, Mike Leavitt and Tommy Thompson. At minimum: Dispel the political and legal uncertainty — fueled by presidential tweets — around billions in subsidies for consumers’ insurance copays and deductibles.” —Ricardo Alonso-Zaldivar, Associated Press
  • "Getting People to Enroll in Health Plans While Trump Attacks Them":“For the law’s first four enrollment seasons, the Obama administration spent heavily on advertising, recruited celebrities like Katy Perry and companies like Uber to spread the word and scrutinized data to pinpoint potential customers. But this year, community-based enrollment groups, known as navigators, may be largely on their own.” —Abby Goodnough, New York Times
  • "Despite providers posting prices, patients still not shopping around for services": “Despite having more financial "skin in the game" than ever, many consumers don't make any attempt to compare prices for healthcare services, a newly released study found.” —Michelle Andrews, Kaiser Health News

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