As ObamaCare nears its eighth birthday on March 23, its opponents still have not given up on their efforts to overturn the law. On both the legal and legislative fronts, the law’s critics are taking action. Is either likely to succeed where previous efforts have failed?

Texas, Wisconsin and 18 other states recently filed a new lawsuit challenging ObamaCare’s constitutionality, based on a fundamental change in the law, to wit, the zeroing out of the tax penalty associated with the law’s “individual mandate,” which occurred when President Trump Donald John TrumpBiden leads Trump by 36 points nationally among Latinos: poll Trump dismisses climate change role in fires, says Newsom needs to manage forest better Jimmy Kimmel hits Trump for rallies while hosting Emmy Awards MORE signed the Tax Cut and Jobs Act into law last December.

ADVERTISEMENT

Since the Supreme Court’s 2012 decision upholding the constitutionality of the law in National Federation of Independent Businesses v. Sebelius rested on the dubious logic of Chief Justice John Roberts that the requirement to purchase health insurance wasn’t really an unconstitutional requirement, but merely a tax, goes the thinking behind this new lawsuit, and now that the tax penalty is gone, so should go the mandate itself. Because ObamaCare has no severability clause, that is, a provision declaring that if one part of the law is ruled invalid, the rest of the law nevertheless remains in place, then once the mandate is ruled invalid, the rest of the law must be ruled invalid as well.

In other words, the plaintiffs are cleverly using the chief justice’s own legal reasoning against him. But the chief justice has already demonstrated the lengths to which he will go to avoid having to declare ObamaCare unconstitutional. What makes the plaintiffs so sure he won’t simply rule that just because the tax penalty has been reduced to zero does not mean that there is no longer a tax penalty, it just means that until a future Congress comes along and raises that tax — something Congresses have been known to do — the penalty is zero? After all, Congress had the opportunity to repeal the provision entirely, and chose not to do so. Ergo, the chief justice might think, it’s still a tax penalty for purposes of defending ObamaCare’s constitutionality.

The plaintiffs may have seen this coming. In their lawsuit, they point out that in the 2012 Supreme Court ruling, defending the mandate as a tax, the majority “concluded that Congress’s taxing-power interpretation was only ’fairly possible’ because the provision at issue raised ’at least some revenue for the government’ … Indeed, the raising of ’at least some revenue’ was ’the essential feature of any tax.’ After all, if a provision raises no revenue, it cannot be said ’to pay the debts and provide for the common defence and general welfare of the United States.’”

But even if that approach works, a Supreme Court decision to overturn ObamaCare is potentially years away. Meanwhile, on Capitol Hill, opponents are girding for battle over the determination of some Republicans to add funding for what are called “cost-sharing reduction” payments and “reinsurance” to the upcoming omnibus spending bill. These Republicans want to add tens of billions of dollars to the funding bill to bail out health insurance companies whose profits have soared since the advent of ObamaCare in 2010.

They’re doing their best to keep it quiet, in hopes they’ll be able to add that bailout money without their own base voters learning of it, the same base voters who believed them when, during the course of four different election cycles from 2010 to 2016, they promised that if they were given power in Washington, they would repeal and replace ObamaCare.

This attempt to add a health insurance bailout to the omnibus spending bill is outrageous. It’s one thing to fail to repeal ObamaCare as you promised. That’s bad enough. Trust me, I hear it from the grassroots all the time. But to then go many steps further in the other direction, and to actually strengthen ObamaCare, by spending tens of billions of taxpayer dollars to bail out already-rich insurance companies? I can think of nothing that would be more of a poke in the eye with a sharp stick.

Voters gave the GOP the majorities in both houses of Congress in 2014 and 2016, and added the White House in 2016. They did that largely because they believed the promises that Republican candidates made to repeal ObamaCare. If Washington under GOP control spends tens of billions of taxpayer dollars to bail out insurance companies and strengthen ObamaCare, voters will rightfully ask, what the heck is the difference between a Democrat-controlled Washington and a Republican-controlled Washington?

Jenny Beth Martin is chairman of Tea Party Patriots Citizens Fund.