‘Clearly Unconstitutional’: 2 Justices Issue Dissent in Supreme Court’s Obamacare Ruling

Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer, and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch, and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington on April 23, 2021. Erin Schaff/Pool/AFP via Getty Images

Justices Samuel Alito and Neil Gorsuch dissented from the Supreme Court’s decision to uphold the Affordable Health Care Act, or Obamacare, describing the mandate as “clearly unconstitutional.”

The Supreme Court ruled 7–2 that the plaintiffs, 18 Republican-led states, lacked the standing to challenge the federal health care law. The states had wanted the Supreme Court to overturn the law because its “individual mandate” was set to zero by former President Donald Trump, saying that the entire law was unconstitutional.

The Department of Justice under former President Donald Trump backed the Republican-led states in urging the justices to strike down the law. The Biden administration doesn’t support the previous administration’s argument.

Justice Stephen Breyer wrote the majority opinion. He was joined by Justices Sonia Sotomayor, Elena Kagan, John Roberts, Clarence Thomas, Amy Coney Barrett, and Brett Kavanaugh.

But Alito, in his dissent (pdf), described “today’s decision is the third installment in our epic Affordable Care Act trilogy,” and he added that the decision “follows the same pattern as installments one and two. In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.”

“Texas and the other state plaintiffs have standing, and now that the ’tax' imposed by the individual mandate is set at $0, the mandate cannot be sustained under the taxing power,“ he wrote. ”As a result, it is clearly unconstitutional, and to the extent that the provisions of the ACA that burden the States are inextricably linked to the individual mandate, they too are unenforceable.”

The justice added that the Supreme Court was “presented with the daunting problem” of defining the “individual mandate,” which the same court redefined (pdf) in 2012 as a “tax.”

The lower courts mostly sided with the Republican states but agreed to delay enforcement while the appeals process continued. Defenders of Obamacare, which comprised about 20 Democrat-led states and the House of Representatives, also had appealed to the Supreme Court.

“Can the taxing power, which saved the day in the first episode, sustain such a curious creature? In 2017, Congress reduced the ’tax' imposed on Americans who failed to abide by the individual mandate to $0,” Alito noted. “With that move, the slender reed that supported the decision ... was seemingly cut down, but once again the Court has found a way to protect the [Afforable Care Act].”

“Instead of defending the constitutionality of the individual mandate,” he added, “the Court simply ducks the issue and holds that none of the Act’s challengers, including the 18 States that think the Act saddles them with huge financial costs, is entitled to sue.”

Barrett’s support for the mandate appears to contradict arguments that were foisted by Democrats during her Supreme Court confirmation hearings last year. They had claimed that she would join the other conservative justices in striking down Obamacare, leading to calls from top congressional Democrats and progressives to “pack,” or expand, the Supreme Court.

Thomas, considered among the most conservative justices, wrote in a concurring opinion that the plaintiffs in the case hadn’t shown they were injured by the individual coverage mandate and therefore, wouldn’t give them the standing to file the lawsuit. As a result, according to him, he joined the majority.