This Week in Congress: Hearing Edition

While there may not be that much excitement on the floor, the House of Representatives will hold a number of significant hearings this week. The House Intelligence Committee will hold its first hearing of the year, but you won’t find out much about it because the hearing is closed to the public. In violation of House rules, the Committee leadership announced the hearing would be closed instead of holding a public vote on whether to close the hearing.

The House Judiciary Committee will hold a hearing on gun safety, by which they mean making law-abiding citizens less safe by taking away our guns. The Oversight Committee will have a hearing on the parts of H.R. 1 strengthening the ethics laws governing the executive branch. This is the second mini-series of hearings on H.R. 1, the campaign reform bill that would require groups like Campaign for Liberty to disclose the names of our supporters to the government. The House Committee on Natural Resources will hold a hearing on climate change, laying the groundwork for cap-and-tax and other green new deal policies. Finally, there will be three hearings on ObamaCare. The Appropriations Committee will hold a hearing on oversight of President Trump’s executive orders changing Obamacare — changes that have given individuals more choices and control over their health care so of course ObamaCare supporters hate them. The Education and Workforce Committee will hold a hearing on the problems faced by workers with pre-existing conditions. Those pre-existing conditions will also be the focus in the Energy and Commerce hearing on Texas v. Azar, the court case where a judge ruled ObamaCare unconstitutional. The House rules package allows the Speaker to intervene in the case to defend ObamaCare. Speaker Pelosi might not want to waste her time. The judge in the case based his decision on Congress’s dropping of the tax penalty to zero in the 2017 tax reform bill. The judge found that without the mandate, the rest of the law is null and void.

While I agree ObamaCare is unconstitutional, I also agree with those, including many opponents of ObamaCare, that this decision is flawed and is likely to be overturned. First of all, Congress did not repeal the individual mandate. Instead, they set the penalty to zero. There is nothing stopping a future Congress from increasing the penalty.

Secondly, while the individual mandate is one of the pillars of ObamaCare, it is a stretch to say the law — including the subsidies, Medicaid expansion, and other tax increases — falls because the individual mandate is no longer being enforced. Congress has never expressed any intent to have the entire law voided if the individual mandate was repealed.

Thirdly, the Supreme Court — particularly Chief Justice John Roberts — has twice talked themselves into mental knots in order to save ObamaCare so why would they reverse course now?

For more on this see Case Western Reserve School of Law Professor (and one of the driving forces behind the King v. Burwell litigation challenging ObamaCare) Jonathan Adler here.