In Reply to: Obamacare dying?? posted by Bruce(OR) on December 14, 2018 at 23:54:11:
Nobody seems to have noticed the elephant in the room. The Jobs and Tax bill did two things wrt the ACA:
By the time this Distruct court ruling is reviewed by the 5th Circuit the Individual Mandate and the $0 tax penalty will no longer be a part of the law. The mandate itself, the alleged tax defect, and the severability issue will have been resolved by GOP lead congressional action. I am not a lawyer but that generally renders the complaint moot. Consequently I don't think it will require any exercise in judicial activism to simply dismiss the complaint.
The upper court could of course decide to consider the opinion set forth by Judge O'Connor that a tax that does not generate revenue can not be fairly read as a tax. That might have bearing as precedent on future legislation that implements a $0 tax penalty. But regardless of how they decided that issue it would not alter the fact that the ACA as currently instantiated is now free of that defect.
In other words I don't expect an ACA that as of January 1 no longer contains an individual mandate and attendant penalty to be struck down by a higher court. Most especially the US Supreme Court where the 5 justices that have rejected all previous challenges are still sitting.