Unless Republicans can agree by Sept. 30, they won’t be able to pass a bill without 60 Senate votes. Here’s a wild idea: Instead of repealing ObamaCare, make it unconstitutional. Recall how the Supreme Court split when it upheld ObamaCare in 2012. What broke the tie was a novel opinion by Chief Justice John Roberts, who upheld the law’s individual mandate by declaring it a tax. The GOP can take advantage of that premise and pass a two-page bill clarifying that Congress did not intend to use its taxing power to enforce the individual mandate and disavows the same going forward. Congress could state that it intends ObamaCare to contain no severability provision—meaning that, as the four dissenting justices agreed in 2012, the entire law must fall if the mandate is unconstitutional.
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