Obamacare is unconstitutional, but the Texas judge was wrong to strike it down

In other words, the courts don’t have to guess what Congress meant in December 2017 when they passed the tax law; it’s obvious. They threw out the tax penalty but left the rest of Obamacare intact. They obviously believed the ACA could stand without the individual mandate.

It is clear that the 2010 Congress believed the individual mandate was essential, as Judge O’Connor says, but it’s nonsense to contend that under the new Congress, the individual mandate can be both completely ineffectual and “essential” at the same time. Thus, O’Connor’s ruling was just judicial activism and political hackery.

The Supreme Court is more conservative now, but in 2012, it was Chief Justice Roberts (a conservative), who joined with four liberal justices to save Obamacare. He’s still on the court with four liberals, so the same judges would very likely overrule the severability ruling if the Fifth Circuit doesn’t do it first.