Affordable Care Act

BREAKING: District Court Judge in Texas Holds ACA Is Unlawful

A federal district court judge in Texas has accepted a strained and implausible argument that the Affordable Care Act must be struck down because Congress eliminated the tax penalty for failing to purchase qualifying health insurance.

|The Volokh Conspiracy |

This evening, as the Affordable Care Act's enrollment period ended, Judge Reed O'Connor of the U.S. District Court for Northern District of Texas issued his much-awaited opinion in Texas v. United States, concluding that the individual mandate is unconstitutional and that, as a consequence, the entire Affordable Care Act is invalid. This is a surprising result, and one that is hard to justify.

I provided background on the implausible claims behind this suit here and here. Among other things, it's not clear why the states had standing to file their claim, and the argument that the entire ACA must fall because of the individual mandate's alleged infirmity is strained, to say the least, for reasons I outlined with Abbe Gluck in this NYT piece and this amicus brief. I also debated the merits of the case in this FedSoc podcast.

As the foregoing makes clear, I've been highly skeptical of the claims in this case from the beginning. Thus the result in the opinion is surprising—and surprisingly weak. It is, in many respects, the conservative equivalent of so-called #Resistance judicial opinions that have embraced questionable legal arguments deployed to subvert objectionable Trump Administration policies. I would be quite surprised if this opinion survives the inevitable appeal to the U.S. Court of Appeals for the Fifth Circuit, and even more surprised if this result garners the support of more than two justices on the Supreme Court (if the case even gets that far).

The problems with Judge O'Connor's opinion are evident at the outset where he summarizes his conclusion:

Resolution of these claims rests at the intersection of the ACA, the Supreme Court's decision in NFIB, and the TCJA. In NFIB, the Supreme Court held the Individual Mandate was unconstitutional under the Interstate Commerce Clause but could fairly be read as an exercise of Congress's Tax Power because it triggered a tax. The TCJA eliminated that tax. The Supreme Court's reasoning in NFIB—buttressed by other binding precedent and plain text—thus compels the conclusion that the Individual Mandate may no longer be upheld under the Tax Power. And because the Individual Mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause—as the Supreme Court already held

The problem with this analysis is that it's central claim—that "the Individual Mandate continues to mandate the purchase of health insurance"—is false, both in law and in fact. As Chief Judge Roberts explicitly noted in his NFIB opinion, the "only consequence" of failing to obtain qualifying health insurance is paying a tax – a tax which is now set at zero. As Roberts wrote: "Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS." In other words, there is nothing left in the ACA that mandates that people obtain health insurance.

Judge O'Connor is not content to claim the mandate must be invalidated, he goes on to claim that this justifies declaring the whole law invalid because Congress, in 2010, claimed the mandate was essential to the operation of the Act. Yet Congress in 2017 reached a different conclusion when it enacted legislation zeroing out the mandate penalty. The ACA today—the ACA as amended by Congress in 2017—no longer relies upon an enforceable individual mandate to operate because there is none.

Despite this fact, Judge O'Connor concludes that the 2017 Congress's decisions to leave the ACA without an enforceable mandate requires invalidation of the entire law because the 2010 Congress said so. In effect, Judge O'Connor concludes that the 2010 Congress precluded subsequent Congress's from selectively amending the ACA. This would be crazy even if Congress had sought to do this in 2010—it's even more crazy as the 2010 Congress did no such thing.

The weakness of Judge O'Connor's severability analysis becomes even more plain when one unpacks the actions of the two Congresses. Insofar as the 2010 Congress claimed the mandate played an essential role in the operation of the ACA, it was referring to a mandate that was enforced by a penalty. That is, the 2010 Congress believed that imposing a financial penalty on the failure to obtain qualifying health insurance would reduce the number of individuals who failed to comply. As there is no such penalty anymore, it is simply nonsensical to rely upon the 2010 Congress's findings to make judgments about the law as subsequently amended in 2017. The 2010 findings concern a law that, for all practical purposes, ceases to exist. What matters is what Congress did—and what Congress did is create a law that regulates health insurance markets and lacks an enforceable mandate to purchase insurance. This may or may not be good policy, but it is what Congress did, and there's no basis for a district court to undo it.

And did I mention standing? The Justice Department somehow neglected to raise standing in its briefing, but Judge O'Connor addressed it nonetheless (as he should have, as Article III standing is jurisdictional). Despite recognizing the need to address standing, Judge O'Connor completely botched the relevant analysis, concluding the plaintiffs have standing to challenge a provision of a law that has no legal effect. Because the law imposes no penalty or legal sanction on failing to comply, there is no injury as required by Article III, let alone an actual and concrete injury-in-fact that is caused by the relevant provisions of the ACA and that can be redressed by this opinion. Judge O'Connor concludes otherwise only by ignoring the actual operation of the law and Chief Justice Roberts' NFIB opinion (quoted above) that makes clear that the ACA's mandate imposed no consequence whatsoever beyond the tax liability that Congress has since erased. Standing requires an actual injury. An unenforced and unenforceable horatory admonition doesn't cut it.

Judge O'Connor's opinion declares the individual mandate to be unconstitutional, and declares the rest of the ACA to be inseverable and invalid—all of it, including those provisions that have nothing to do with health insurance markets. Yet Judge O'Connor has not (as yet) issued an injunction barring enforcement of the law. Rather, his opinion merely purports to provide declaratory relief to the plaintiff states, meaning its immediate practical effect has yet to be determined, though a stay (either from Judge O'Connor or the U.S. Court of Appeals for the Fifth Circuit) seems likely.

As noted above, I do not believe this opinion is long for this world. However superficially plausible the plaintiff states' claims initially appear, they melt upon inspection. The more one digs into them, the less substantial they appear. I expect this to be clear to the Fifth Circuit, and do not believe the states' arguments have much of a chance before the Supreme Court. Indeed, I would not be surprised were this decision to be overturned on standing on appeal, in which case certiorari would almost certainly be denied. Stay tuned.

UPDATE: For more on the opinion, here's a piece I have with Abbe Gluck in the NYT.

SECOND UPDATE: Here's a piece by Nicholas Bagley on the ruling in the Post. He largely agrees with the analysis above.

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  1. The end is nigh for one cynical scheme to coerce Americans into health care arrangements against their will.

    The next cynical scheme is no doubt on deck.

    But maybe SCOTUS will rescue Obamacare so it can go into a death spiral of fewer and fewer people paying higher and higher premiums until all the insurers pull out of it in a couple years.

    1. Americans were coerced into buying health insurance long before Obamacare?it is called the group market brainiac!

      Trump has saved Obamacare out of loyalty to the Kushner family and now Obamacare is more popular than ever even helping a Democrat win in WV which is Trump’s best state.

    2. Open wider, clingers. A single-payer system is going to be a lot for some of you to swallow, but at least you have had at least a half-century of swallowing liberal-libertarian progress to prepare you for it.

  2. Thank God Trump is president because he will never allow Obamacare to end thanks to the Kushner family being heavily invested in Obamacare through Oscar Health. Democrats got very lucky the actual Republicans that ran in 2016 were so unpopular that a Jim Webb Democrat like Trump could win the nomination.

  3. Great case of an unexpected decision! However, given it is Texas, I presume anything can happen. See Y’all on appeal, that too will be an opinion to await. Best, Darren Chaker

  4. The ACA required people to purchase medical insurance. And the government can’t require people to purchase things (except auto insurance???) But the Supreme Court decided that it didn’t really require anyone to purchase anything. The ACA was a “tax.” And taxes are OK!

    But, unlike most taxes, you have to explicitly sign up for the ACA to pay that tax. Which you’re required to do. And if you decide to not pay that tax?you’re fined. Which is a tax on not paying a tax. While you have the option of not paying income taxes by not having any income, not paying auto insurance by not having a car or not paying property tax by not owing property, you’re only option to avoid the ACA tax is to not exist.

    The ACA doesn’t affect me cuz I got VA medical, but forcing people into things isn’t the American way. Some people just want to live their lives and be left alone. It may not be in their best interest, but it’s their choice.

    1. The Militia Act of 1792 enrolled every free able-bodied white male into the militia and required them to provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder.

      If the government can require you to own a weapon and be ready for war, it certainly require you to have health insurance.

      1. The Constitution includes language about the militia just like it includes language about slavery so even if those two things seem incompatible with the Constitution they are constitutional. That said the government could rationalize forcing Americans to buy health insurance as part of its militia and impressment power so people are healthy enough to fight a war.

    2. “The ACA doesn’t affect me cuz I got VA medical, but forcing people into things isn’t the American way.”

      You mean like forcing people to pay the taxes that fund the VA?

      1. I don’t force anyone to pay the taxes that fund the VA and I don’t support forcing anyone to pay the taxes that fund the VA.

        Do you support forcing people to pay the taxes that support things that benefit you? Regardless. You still benefit from the taxes they pay. You don’t pay to maintain the roads by yourself, or to support the police and fire departments. When you call 911 the dispatcher doesn’t ask for a credit card number.

        So don’t act like I’m imposing on you.

        1. So don’t act like I’m imposing on you.

          If that is what it takes to make your parasitism tolerable for you, go for it.

          1. Arthur is now on record calling veterans “parasites”.
            (Dig, Lazarus, Dig!)

          2. Members of the military work for the government in exchange for a package of pay and benefits. One of those benefits is VA coverage.

            You consider that to be parasitism. I somehow doubt you feel the same towards as example public union member’s retirement benefits…

          3. Very disappointed in you for this comment, ALK. Thought better of you. Perhaps the 0137 time of your post explains.

            1. ALK is fairly clearly mocking LiborCon, not actually calling them a parasite.

              There’s a fairly common pattern on the right where any Government benefit they get is earned and justified, but any benefit gotten by someone else (particularly visible minorities) is parasitism.

              I mean just look at how LiborCon’s ending paragraph:
              “The ACA doesn’t affect me cuz I got VA medical, but forcing people into things isn’t the American way. Some people just want to live their lives and be left alone. It may not be in their best interest, but it’s their choice.”

              That’s not far off “Keep your government hands off my Medicare”.

        2. “I don’t force anyone to pay the taxes that fund the VA and I don’t support forcing anyone to pay the taxes that fund the VA.”

          Well now that I’ve told you that the VA is funded by taxes, and taxes are forced payments by the government, are you going to stop using VA services?

    3. The tax is 0. If there’s no penalty you’re not actually forced.

      And assuming the analysis was correct, that the zero’ing out of the mandate (making it not a tax?) meant it was unconstitutional, then why does the ACA become unconstitutional? Why not the gong show of a tax bill that zero’d out the mandate in the first place?

    4. There were a number of options to avoid the ACA tax, to include… not having enough income.

      (That isn’t offered as a defense of the individual mandate or the tax penalty for not complying with it. I’m just replying to the point you were trying to make.)

  5. Why didn’t the Republican Congress exempt all health insurance from taxes, leveling the playing field for employer and non-employer provided health insurance and creating a true insurance market? Maybe the bipartisan Congress can do that.

  6. Peter Suderman, elsewhere on Reason summarises Adler’s point on severability and intent thus :

    last year’s Congress told us quite clearly that they did believe the law could stand on its own without a mandate penalty. We don’t have to guess at the intent of the Congress that modified the law, because they told us quite clearly that they believed that the rest of the Affordable Care Act could stand in the absence of a tax penalty.

    Suderman may be misstating Adler’s argument, but on its face this is simply untrue. Congress didn’t tell us anything in 2017 about its general intentions towards the ACA. What we have here is an inference that because Congress only troubled to reduce the penalty “tax” to zero, it intended to keep the rest of the ACA afloat. There are, of course, different inferences that could be drawn – eg that Congress intended the ACA to die but chose poison rather than a stab to the heart. Or that Congress intended that another’s hand (ie the judiciary) should appear to be wielding the murder weapon (much closer to reality, IMHO.) Or that “Congress” had no single collective intent and different congresscrutturs intended different things. Either way the “Adler” argument, if that is what it is, is greatly weakened by the falsity that Congress stated its 2017 intentions towards te ACA clearly. It didn’t – it said nothing on that subject.

    1. Congress severed the mandate by passing a law that severed the mandate, and not a law that ended the whole ACA. So I dunno what sorta logic gets you to Congress’s intent is that the mandate isn’t severable.

      1. “severable” is a legal concept, not denoting whether it is technically possible to snip a clause out of a law (or contract) but whether the legislature (or the contracting parties) intended the post snip remainder to have effect or not. Consequently what we are discussing is Congress’s “intent” as to the post snip remainder. And contra Suderman Congress expressed no intent in 2017 regarding the post snip remainder. Any Congressional intent has to be inferred, it cannot be read directly from anything Congress said in 2017.

        And as I said, a variety of inferences could be drawn, and I am certainly not lawyer enough to conclude on what is the best legal inference about Congressional intent (which is in any event merely a legal fiction, Congress having no single “mind.”) One possible inference is that Congress intended to keep the balance of the ACA, but just with a mandate with a penalty set to zero. Another is that it intended no change to irs original finding that absent a mandate penalty the ACA as a whole should not stand.

        I don’t object at all to a conclusion that the best inference from Congress’s action in 2017 is that Congress intended the ACA to continue without the mandate, It’s a perfectly plausble inference. What I’m objecting to is the false statement that Congress stated this clearly in 2017, when in fact Congress said nothing about it.

        1. It’s extermely plausible that Congress–being the institution it is–meant the post-snip parts to remain in effect.
          The idea of having one’s health care paid for by someone else is sufficiently popular that most legislators would be loathe to vote against it.
          So, they do it by stealth–they take out the funding mechanism and watch the thing die of neglect.
          Legislation repealed; everyone has clean hands.

        2. Another is that it intended no change to irs original finding that absent a mandate penalty the ACA as a whole should not stand.

          I do not see how that is a plausible reading of the law Congress passed.

          1. Well according to the judge, the reading is easily explained. Congress did not amend the ACA. It would be strange for the courts to infer that the later Congresses are busily intending new things about old statutes that they don’t amend, and hoping that the courts will give effect to these new, unstated, intents.

            I suppose that inferring new intent from Congressional lethargy would be logically consistent with a “living constitutionalist” approach to statutory construction, but – and this is of course the problem with living constitutionalism itself – the question is, how is the judge to distinguish, honestly, between the new Congress’s unspoken new intent, and the judge’s own policy preference ?

            1. Under your logic, Congress intended this result, despite their continual failure to attain this result directly?

              Your jab at living constitutionalism rings pretty hollow if you use it to act as the principleless strawman you posit.

              1. I don’t believe Lee is arguing that the 2017 Congress intended to repeal the ACA. He is instead arguing they intended to have 1) a mandate, 2) a zero-dollar penalty for not complying with the mandate, and 3) the ACA invalidated in the event the mandate was invalidated.

                1. I don’t think that’s quite what I’m arguing. I’m trying to report, as best as I can, what I understand to be the judge’s reasoning. Which is that the 2017 Congress did not amend the ACA, and that consequently using the Adler insistence on measuring Congress’ intent by reference only to what Congress actually did the 2017 Congress cannot be said to have intended anything about the ACA by what it did to a different law.

                  The only intent that the 2017 Congress revealed by its action was the intent to cut a tax. (Actually several taxes.)

                  So we learn nothing about the ACA from Congress’s 2017 action. It remains exactly as it was pre 2017, Congressional intentions and all. Hence the judge reverts to what Congress and SCOTUS have already told us about the ACA – that

                  (a) the mandate is only constitutional if it is supported by a tax generating penalty; and
                  (b) if it has to be struck out as unconstitutional, then it is not severable from the rest of the ACA

                  1. As to the actual intentions of the actual congresscritturs who zeroed out the penalty, I’m pretty confident that there were :

                    (a) some who thought it might kill the ACA without having to find 60 votes in the Senate
                    (b) some who thought that the ACA would sail on unaffected
                    (c) some who wanted to boast of the death of the penalty, for electoral purposes, whatever might happen to the ACA, and
                    (d) some who thought about it not at all, but simply did what they were told by Ryan and McConnell

                    consequently “Congress’s intent” is a phantasm.

                    But that’s politics, not the law. So I don’t know whether it is legally correct to conjure a phantasmagorical intent from the aether or not. And if so, which of (a) to (d) should be selected, if any.

                  2. Given that Judge O’Connor wrote, “TCJA […] amends 26 U.S.C. ? 5000A(c),” I find it highly unlikely he thinks the 2017 Congress did not amend the ACA.

                    1. Yes, I overlooked that line. So I need to amend my attempted summary of the judge’s view to :

                      “Which is that the 2017 Congress did not amend the ACA, at all, except for zeroing out the penalty, and that consequently using the Adler insistence on measuring Congress’ intent by reference only to what Congress actually did, the 2017 Congress cannot be said to have indicated anything about its intent for the ACA, except that it wanted the penalty to be zero.”

    2. As stated in his amicus brief, Adler argues:

      By expressly amending the statute in 2017 and setting the penalty at zero while not making other changes, Congress eliminated any need to examine earlier legislative findings or to theorize about what Congress would have wanted. Congress told us what it wanted through its 2017 legislative actions?”One determines what Congress would have done by examining what it did.”

      1. And in fairness, here is how Judge O’Connor reacted to Adler’s argument:

        But consider what Congress did not do in 2017?or ever. First and foremost, it did not repeal the Individual Mandate. […] Intervenor Defendants’ argument that the 2017 Congress manifested an intent of
        severability is therefore unavailing. […] Secondly, the 2017 Congress did not repeal 42 U.S.C. ? 18091

      2. Adler’s argument elides two different things :

        (1) what Congress intended by leaving the rest of the ACA alone when it reduced the mandate penalty to zero and
        (2) what Congress would have meant if it had enacted the ACA without a mandate

        He is pretending that what Congress did was (2), when in fact what it did was (1)

        In the second case there’s no severability question to consider, because there’s nothing severed. In the first case something originally claimed to be essential has been removed, without comment on what is left.

        If I buy my son a car, let him drive it for a couple of months and then remove one of the wheels and replace it with a pile of bricks, my intent in removing the wheel is obscure. It is at least far from obvious that I intend for him to continure to drive it as best he can with three wheels. It is at least possible that I no longer want him to drive and I have selected a more economical, or perhaps, more artistic way of conveying that than by torching the whole car.

    3. Congress’s ‘Intent’ is provided solely by result of Congress’s ‘Vote.’ When they want to change that intent, they can change the legislation and vote again.

      Which is what they did, with the result that the ACA remains in place without an individual penalty for ignoring its individual mandate.

      That’s what Congress passed; that’s what Congress intended.

      1. Sure, but that doesn’t answer the question of what the courts should do with the ACA now. We can conclude that Congress, by its deeds, may be presumed to have intended the survival of an ACA with an individual mandate, but with that mandate unsupported by a penalty.

        If such a mandate is unconstitutional, and therefore the courts are required to strike it, the courts have to conclude whether merely to strike the unconstitutional mandate, or to strike the whole Act, or to take some middle course. Congress has by its actions told the courts that it intends there to be an Act with an unconstitutional provision in it. The courts job is to say “sorry boys, you can’t have that.” But Congress hasn’t told them, either in words, or by its legislative action, what to do with the partly unconstitutional law. Congress could have provided an explicit severability clause, or an explicit non severability clause. But it didn’t. The question is open. An intention needs to be inferred, it is not explicit in Congress’s words or deeds.

  7. I alao enjoyed Suderman’s headline about a “Texas” judge handing down this ruling. I guess that’s as close as you can get to “partisan redneck” without offending the Chief Justice’s amour propre.

    1. The law school the judge attended is one step above Cohen’s law school.

      1. A decade as an AUSA. 4 yrs on the US Senate Judiciary staff.
        He’s got a helluva better resume for his job than Obama did for his.

        1. Obama was the second-least qualified President of the last decade.

  8. “Yet Congress in 2017 reached a different conclusion when it enacted legislation zeroing out the mandate penalty. The ACA today — the ACA as amended by Congress in 2017 — no longer relies upon an enforceable individual mandate to operate because there is none.”

    Adler neglects to consider “nudges”, which are accepted policy tools nowadays. Many people avoid deliberately breaking laws, regardless of how light the penalties for lawbreaking. The 2017 Congress’s decision to employ a nudge as the mandate does not necessarily imply that Congress no longer views the mandate as essential. Rather, Congress, apparently, believes that the psychological harm from lawbreaking is sufficient to allow the rest of the ACA to work. Unfortunately, the Commerce Clause does not give Congress the power to impose psychological harm to compel people to buy health insurance. Because Congress was relying on that power to get the rest of the ACA to work, the rest of the ACA must also be struck down.

    1. But according to the Supreme Court (in NFIB v Sebelius), not complying with the individual mandate is not breaking the law so long as you pay the tax which is due as a result. If someone pays the tax due (which would now be zero) rather than have insurance, they are in full compliance with the law.

      The only thing that would be unlawful is not having insurance AND not paying the tax due as a result.

  9. I’m reminded of the Lautenberg amendment, where Congress enacted a law, and snuck into it was a provision depriving of their 2nd amendment rights any American who had previously been convicted of a “domestic violence” crime.

    And the courts rejected the idea that this violated the ex post facto clause, because supposedly depriving somebody of their 2nd amendment rights wasn’t a punishment.

    Isn’t it the case that a future Congress could condition some other horrific non-punishment on past failure to comply with the mandate? And, that being the case, you can’t really say today that failure to comply with the mandate is free of consequences. It might be, it might not, depending on future actions of Congress.

    Mind, the root evil here is the Court not taking the ex post facto clause seriously, but still, they don’t, and so the reasoning seems sound to me.

  10. I don’t actually think this follows. The 2017 Congress may have decided the individual mandate was not essential to the legislative scheme, however, that theory can be constitutionally invalid. For instance, it may have become more obvious over the past 6 years that the entire regulatory scheme is one in excess of the Congress’s commerce clause powers, or significant parts of it are, thereby creating an entire scheme of unconstitutional unseverability, mandate or no.

  11. Let’s get this straight.

    The mandate was essential to the ACA in 2010, but as soon as the mandate was defanged in 2017, it became non-essential?

    Congress passed ACA with the mandate as an essential part.

    There needs to be something beyond a hand-wave to explain why it suddenly became non-essential later.

    1. Adler’s argument is the actions of the 2017 Congress (zeroing out the penalty while leaving the rest of the law in place) tell us what they wanted, and thus we don’t need to ask why they think the mandate is no longer essential.

    2. It’s the fact that the Supreme Court is said to already have held the mandate unconstitutional in NFIB. O’Connor accepted that in his opinion.

      But maybe that argument needs more attention (from Adler and others) given how convoluted the Court’s path was in NFIB to upholding the penalty (but not the mandate qua mandate). There are any number of scholars and politicians who may believe the Court didn’t really hold the mandate unconstitutional.

      Consider: “On the Commerce Clause and Necessary and Proper Clause issues, the direct legal effects are complex and likely to be disputed. The strongest argument for a Commerce Clause holding postulates that NFIB has stare decisis effects in cases in which another individual mandate (relevantly similar to the mandate in the ACA) is enforced by a criminal penalty?or other penalty that could not be fairly characterized as a tax via a saving construction.”

      “How NFIB v. Sebelius Affects the Constitutional Gestalt,” by Larry Solum, 2013

      The lacking clarity is a problem that leaves us dancing on the head of a pin. If the Court did strike down mandate qua mandate, do we impute that knowledge to Congress when it eliminated mandate in 2017? Do we try to avoid the 2017 intent issue as O’Connor does? If Congress acted without knowing the mandate was dead must the whole law fail? It’s a knot I’ve not worked out.

  12. “Judge O’Connor concludes that the 2010 Congress precluded subsequent Congress’s from selectively amending the ACA.”

    1. Weird. The rest of my comment disappeared. But I suppose I need not elaborate anyway.

  13. I fully understand that courts have come up with ways to allegedly “save” parts of legislation by excising the unconstitutional text but keeping the remainder. That said — I find somewhat astounding that this particular bill, as wide-ranging as it was, was drafted without a severability clause, a clause which is routinely included in tens of thousands of ordinances and bills, local to state as well as federal, for decades. One could rationally believe that the exclusion of such a standard clause, in a major piece of legislation, was intended for a reason.

  14. ACA is terrible policy and I think you’re right.

    O’Connor recognizes SCOTUS held mandate unconstitutional: “a majority of the Supreme Court found the Individual Mandate is unconstitutional under the Interstate Commerce Clause, and even the four Justices not reaching that conclusion recognized it as the holding of the Court.” (pp.6-7)

    Yet he proceeds as if doing it for the first time. Discrepancy is most glaring in analysis of 2017 congressional intent. As you observe, Congress was legislating on the background of the Supreme Court ruling AND with the oft-referenced awareness of the significance the penalty.

    I think it wrong for O’Connor to treat reconciliation as significant for purpose of intent. Congress follows all manner of arcane rules. If judges spelunk into procedures to dismiss or determine intent that leads to mischief.

    I don’t think standing is forestalled. O’Connor has a point about not conflating injury-in-fact with merits, and about moral force of law.

    NFIB is wrinkly enough I think a merits analysis is warranted.

    Trickier is whether the 2017 law means parts of the ACA conceded to depend on penalty are severable. Did Congress really understand what it was doing in light of the NFIB decision? Arguably not. Only that the penalty wasn’t necessary. Or does a judge preserve those parts of the law considered unworkable absent any kind of mandate/penalty?

    1. I think it wrong for O’Connor to treat reconciliation as significant for purpose of intent. Congress follows all manner of arcane rules.

      I don’t think O’Connor would say that’s what he was doing. As I read it he was saying that reconciliation was relevant to what Congress could do with the votes available and so, which is the important thing, to what it actually did – ie amend a tax rule rather than amend the ACA itself. ie I don’t think he’s deducing Congress’s intent from the procedure, he’s answering the Adler amici’s insistence that Congress’s intent is plain from what it did (in 2017) by emphasing what it was that Congress actually did in 2017 (because it could) and what it didn’t do (because it couldn’t.)

      He’s saying “OK, let’s look at what it did since you insist that Congress’s intent is plain from its action. What it did was amend a tax law. It had the votes to do that so that’s what it did. It didn’t have the votes to amend the ACA. So it didn’t amend it.

  15. It’s pretty heartwarming to see even strident commenters on the right make admissions against interest in this case.

    1. Unintentionally? Or deliberately?

    2. It’s pretty comical to see commenters who imagine that strident left-wing blogger Adler is “on the right”!

  16. Now the question is whether the Department of Justice will a) defend the law, b) not defend the law but at least appeal the ruling and ask the court to appoint an amicus to defend it, or c) neither defend the law nor appeal the ruling.

  17. If federal judges who don’t like what the current Congress can simply ignore it and decide things based on what past Congress said, can the political branches who don’t like current judicial opinions simply ignore them and base their actions on past opinions they like better?

    If the judiciary shows no respect for a representative branch of government changing its mind after elections, why should the elected branches of government show any respect for the changes of opinion of an unelected judiciary.

    Also agree that Congress is entitled to decorate its statute books with whatever hortatory advice it cares to give Americans about how to live their lives. And as long as there are no legal consequences for not following that advice, it’s none of the courts’ business if they do. No legal consequences, no standing.

    1. As Josh R has pointed out Judge O’Connor did not say the 2010 Congress’ intent should trump the 2017 Congress’ intent. He said that insofar as he was required to construe the ACA in the light of the intent of the 2017 Congress, he could only conclude that it was the same as that of the 2010 Congress, since the 2017 Congress had not amended the ACA even to the extent of a syllable.

  18. I’d just like to add, en passant, that this case where it appears that some attempt to divine that fictional construct “Congressional intent” may be unavoidable, the text having failed to provide an unambiguous answer, demonstrates the lunatic folly of choosing “intent” above “text” as your primary rule of interpretation.

    The horror of descending into the fantasy world of the collective intent of a couple of hundred individual congresscritturs, even on an occasional basis as a tiebreaker, is bad enough. Imagine having to do it every time !

    1. Adler counters that the text provides an unambiguous answer.

      1. I’m not sure he does, at least if we’re going on his NYT article. No actual text is referenced. Instead he seems to be arguing that Congress’s intent is clear from what it did – ie zero out the penalty. But whether that inference is right or not, it doesn’t arise from an analysis of the text of the amendment zeroing out the penalty.

        1. That sounds right. Adler argues that Congress’s actions of setting the penalty to zero combined with leaving the rest of the law alone tells us with no further analysis they intended to have a non-operative mandate together with the rest of the law. The counter argument is we can’t tell if the 2017 Congress thinks there is a difference between a non-operative and invalidated mandate without further analysis.

  19. Article I, Section 1 of the Constitution states: “All legislative Powers herein granted shall be vested” in Congress. But as Prof. Adler’s NYT column with Prof. Gluck notes:
    “Still, Judge O’Connor wrote that we cannot divine the intent of the 2017 Congress because Congress didn’t have the votes to repeal the entire law but wished it could.”
    To uphold Judge O’Connor’s decision–to vindicate the plaintiffs–would thus be to give effect to the wimpiness of Congress, not its “Powers.” What a crock.

    1. But as Prof. Adler’s NYT column with Prof. Gluck notes:
      “Still, Judge O’Connor wrote that we cannot divine the intent of the 2017 Congress because Congress didn’t have the votes to repeal the entire law but wished it could.”

      Except that’s not what Judge O’Connor wrote, it’s Adler and Gluck’s sarcastic gloss on what Judge O’Connor wrote. Which was that Congress, not having the votes to amend the ACA, did not amend it. It amended what it did have the votes to amend – the tax law – by cutting a tax. Consequently if, as invited by Adler and his chums’ amicus brief, O’Connor is to divine Congress’ 2017 intent from “what Congress actually did” in 2017, what Congress did was to eliminate a tax, and that – a tax cut- was therefore Congress’ intent duly divined, acording to the method advocated by Adler and chums’ brief.

      Congress having declined to do anything to the ACA in 2017 cannot (according to the Adler injunction “divine intent from what Congress did”) be presumed to have formed some new, post 2010, intent for the ACA.

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  21. With “libertarians” like Adler in their ranks, it’s easy to see why the libertarian movement has generally acted to swell the size of government rather than to shrink it.

    “Under current doctrine, in order to show standing the plaintiff must have suffered a concrete and particularized injury-in-fact that is fairly traceable to the challenged action.”

    That particular “doctrine’ is conspicuously not adhered to by the great many federal judges who keep intervening in immigration and environmental matters against the Trump administration. In fact in general it is fair to say that “standing’ is usually used as a legal weapon against the right, who mysteriously never seem to have ‘standing” while liberal plaintiffs with far less grounds to file law-suits are invariably granted it.

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