In 2010 a Democratic majority passed the Affordable Care Act.  Its legislative objective was to”increase  the number of Americans covered by  health insurance and decrease the cost of health care.”   A key component of the act required most Americans to maintain “minimum essential health coverage.  Failure to do so would result in a penalty to be paid ”to the Internal Revenue Service with an individual’s taxes and shall be assessed and collected in the same manner” .

Two years later the Affordable Care Act, often called Obamacare, was challenged by twenty-six states and the National Federation of Independent Business(National Federation of  Independent Business v. Sebelius) on  grounds the individual mandate  was unconstitutional.    Speaking  for a majority, Chief Justice John Roberts, concluded the individual  mandate maybe upheld as the power of Congress to tax.


Republicans, who had not supported passage of Obamacare in 2010, were not happy with this constitutional victory for the Obama administration. Senator Jim DeMint,of South Carolina said today’s ruling does not make Obamacare “any less dangerous to our nations’ health.”  Senator Marco Rubio of Florida declared “they are going to take away your refund, they’re going to increase your fees, they’re going to come after you.”  There was a persistent legislative campaign by Republicans to repeal Obamacare.  Reportedly,  a total of fifty(50) Republican attempts to repeal  Obamacare between 2010 and 2014. Each measure met with failure.  On November 7, 2014 the Supreme Court agreed to hear the case of king vs.Burwell.   At issue in this case was a ruling by the Internal Revenue Service that  the federal tax credit was “available to all financially eligible Americans, regardless of whether they purchased insurance on a state-run or federally-facilitated Exchange.”  King challenged the ruling on the grounds that the Affordable Care Act “authorized tax credits only for individuals who purchased insurance on state-established Exchanges.”  On June 25, 2015, Chief Justice Roberts, once again defended the Affordable Care Act: tax credits were available to “individuals in states that utilize a federally-facilitated Exchange and the  text of the Affordable Care Act “is considered as whole , tax credits must be available to all qualifying citizens in every state.”  To rule otherwise, said  Roberts  “would disrupt the interlocking reforms Congress put in place to  achieve the law’s goal of affordable health care for all Americans.”

Here is the is the problem confronting Congress. Since the Affordable Care Act has been upheld by two Supreme Court decisions and historically what the Court rules becomes the law of the land, how can budget constrictions  in the House and Senate repeal a law of the land? For decades, Supreme Court decisions have not been overturned except by a constitutional amendment or amendments.  It took three amendments(13th,14th and 15th) to over turn the 1857 Dred Scott decision.  A Supreme Court decision (Brown vs. Board of Education) overturned the 1896 separate but equal Plessy decision.

Recently, Donald Trump, whose veracity is often questioned,  said if necessary he would use executive decision to repeal Obamacare.  Both Trump and Congress have missed a valuable lesson in constitutional history.

To the millions of American on Obamacare and worried about its future under Republican rule, unless there is a successful challenge to the two Supreme Court decisions making Obamacare constitutional,  remind Congress that Obamacare is the law of the land. Attempts to dismantle or cripple Obamacare will be in defiant of the law. Congress is your government and the right to petition gives you the power to make Congress accountable for its actions.

Sherman Jackson, Ph. D. American Constitutional History and Law  Professor Emeritus Miami University

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