THE NEWS-SENTINEL EDITORIAL: Congress, not court, should kill Obamacare; judge’s ruling likely to be overturned

Repeal and replace Obamacare! Repeal and replace Obamacare!

For eight years of Barack Obama’s presidency, Republicans fought his Affordable Care Act with repeal votes and lawsuits, declaring that the law was a dangerous government takeover.

Well, we haven’t heard that mantra much lately.

When the late renegade Republican John McCain killed the GOP’s best chance at repealing the law in a Senate vote in 2017, many Republicans gave up on their crusade. And after losing control of the House to Democrats in the midterm election last month, GOP leaders now seem to be taking a very different tack.

Senate Majority Leader Mitch McConnell (R-Ky.) said in a Washington Post story the day after the Nov. 6 election, that rather than trying to overturn the law, lawmakers should address the flaws in the ACA “on a bipartisan basis.”

But Friday, District Judge Reed O’Connor issued a ruling in Texas that would, if upheld, completely eliminate Obamacare, which has twice been sustained by the Supreme Court.

A key part of the ACA signed into law in 2010, was that people must have health insurance or pay a penalty. The Supreme Court upheld that individual mandate in 2012, when Chief Justice John Roberts, who claimed that the individual mandate fell under the Commerce Clause, cast the deciding vote saving the law. Congress reduced that penalty to zero in tax legislation it passed in 2017, which President Trump signed. So in January, there will no longer be a penalty for not purchasing health insurance.

Led by Texas Attorney General Ken Paxton, 20 states argued that since Congress got rid of the penalty for not having health care insurance in the tax bill, Roberts’ reason for upholding Obamacare does not apply.

Judge O’Connor agreed, saying the elimination of the penalty made the health insurance requirement unconstitutional. Since the mandate could not be separated from the rest of the law, he reasoned, the whole ACA should be struck down.

We agree with the opinion expressed in the National Review Monday that “Congress should not have enacted the law over public opposition in 2010; the Supreme Court should have struck it down in 2012; the Court should have stopped the Obama administration from rewriting the law to give it a broader reach in 2015; and Congress should have replaced the law in 2017.”

But while we might be expected to rejoice in O’Connor’s decision, his ruling is likely to be overturned on appeal. And the truth is, the fate of Obamacare should not have been left to the courts in the first place. Congress should have done the deed in ending a bad law. But now, having lost the House in November’s election, chances of repealing the law are slim and none.

And, as the National Review points out, the GOP, through O’Connor’s ruling, has a new excuse to “continue not working on health care.”

Sen. Ben Sasse (R-Neb.) wrote in a Wall Street Journal op-ed column in September that both Republicans and Democrats must stop leaving it to other branches of government “to avoid responsibility for controversial and unpopular decisions. … We need a Congress,” he says, “that writes laws, then stands before the people and faces the consequences.”

Republicans may have lost their opportunity, though, to repeal and replace Obamacare any time soon. And watch for O’Connor’s ruling to die on the vine.

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