UNDONE: THE NEW CONSTITUTIONAL CHALLENGE TO OBAMACARE

• Published in: Texas review of law & politics Vol. 23; no. 1; pp. 1 - 51
• Main Author: Blackman, Josh
• Format: Journal Article
• Language: English
• Published: Austin University of Texas, Austin, School of Law Publications, Inc 01.10.2018
• Subjects: Patient Protection & Affordable Care Act 2010-US; Provisions; Supreme Court decisions; Tax cuts; Tax returns; Uninsured people; United States > US; Texas
• ISSN: 1098-4577; 1942-8618

Texas's challenge to the constitutionality of the individual mandate is likely to succeed on the merits. [...]the Attorney General's decision not to defend the constitutionality of the mandate was reasonable. [...]the mandate, along with the ACA's guaranteed-issue and community-rating provisions, should be blocked. Congress made express statutory findings about the importance of the mandate as part of its "constitutional" findings.29 Specifically, Congress concluded that the "individual responsibility requirement," that is the individual mandate, was "essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold. [...]5000A(d) exempts three classes of people from the individual mandate: (a) those with religious-based conscious objections or members of health care sharing ministries; (b) aliens who were not lawfully present; and (c) those who were incarcerated.33 These three categories of people were not "applicable individual [s]" for purposes of 5000A(a), and thus were not subject to the law's requirement to maintain "minimum essential coverage.