Obamacare

Understanding the New Obamacare Decision, Texas v. United States: Part I

[A guest-post by Prof. Josh Blackman (South Texas College of Law), a noted expert on Obamacare-related litigation. -EV]

|The Volokh Conspiracy |

Recently a federal district court found that the Affordable Care Act was unconstitutional. The reaction was swift and brutal. One prominent law professor at Harvard described the case as "a political objection in legal garb," and concluded that "there is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress," and uphold the law.

Another Yale law professor likened the decision to the anti-canonical Dred Scott decision, which "distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America's two major political parties was unconstitutional." A Slate columnist wrote that the decision should "force us to reconsider the role of the courts." She added, "perhaps it's an apt moment to re-examine first principles and think about why we believe in the judicial branch in the first place."

That decision, of course, was Florida v. HHS, decided in February 2011. Judge Roger Vinson of the Northern District of Florida found that Congress lacked the power to enact the Affordable Care Act's individual mandate. Further, he found that protections for people with preexisting conditions—known as guaranteed issue and community rating (GI and CR)—could not be severed from the unconstitutional mandate. And, of course, we know that in 2012, the Supreme Court narrowly upheld the ACA.

At times, covering the Affordable Care Act reminds me of the film Groundhog Day: the same script repeats itself over and over again, in slightly differently contexts. I wrote about the history of NFIB v. Sebelius in my first book, Unprecedented. And, in my second book, I wrote about the second attempt to Unravel the Affordable Care Act with King v. Burwell. Now, two years into the Trump Presidency, we are in the third phase of the never-ending efforts to undo Obamacare.

In Texas v. United States, the Northern District of Texas found that the Affordable Care Act (ACA) is unconstitutional. The opinion had two main components. First, because the Tax Cuts and Jobs Act of 2017 (TCJA) reduced the ACA's shared responsibility payment to $0, the mandate to purchase insurance could no longer be saved as a constitutional fundraising tax. Second, he found that the remainder of the ACA could not stand without the "essential" mandate. Therefore, the entire law was set aside.

I agree with the first part of the ruling. Judge O'Connor was correct to find that the individual mandate can no longer be saved. However, I part company on the second part. The court should have only set aside the mandate, as well as the GI and CR ratings. The remainder of the ACA can be severed. I detailed these views in a four-part series on this case (I, II, III, and IV), and in draft article forthcoming in the Texas Review of Law & Politics. (Judge O'Connor cited the latter in FN 34.)

Eugene was kind enough to let me write several posts about this important ruling. This first installment will place Texas v. United States in the context of the past eight years of Obamacare litigation. In many regards, Judge O'Connor's ruling resembles that of Judge Vinson. In both cases, a coalition of conservative Attorneys General filed suit in a favorable division in a favorable district—Pensacola and Ft. Worth, rather than Tallahassee and Austin. And, both judges found that the individual mandate and core provisions of the ACA were unconstitutional. Moreover, both courts declined to issue a nationwide injunction, such that the case could be appealed in the normal course without immediate disruption to the federal government.

However, there are also critical differences. First, Judge Vinson rendered a major constitutional law decision on a question of first impression: could a mandate to purchase insurance be supported by Congress's powers under the Commerce and Necessary and Proper Clauses. The Florida court went out on a limb to find that Congress lacked such a power. This decision was without precedent. Ultimately, his opinion was vindicated by a majority of the Court, but at the time, Professors Tribe and Amar (referenced above) savaged the decision. Indeed, the activity/inactivity distinction remains controversial in constitutional discourse.

In contrast, Judge O'Connor's decision is far less audacious. His constitutional analysis concerning the mandate was supported by a majority of the Supreme Court. Critics can disagree with the factual predicate of his ruling—that the individual mandate survived the TCJA—but his constitutional analysis stands on a firm foundation. Moreover, Judge O'Connor's ultimate conclusion on severability—that the entire ACA must fall if the mandate is unconstitutional—was supported by the NFIB joint dissenters. Assuming the intent of Congress in 2010 controls the severability analysis—I think it does, but the question is closer than many have recognized—Judge O'Connor's sweeping ruling has the foundation of four votes on the Supreme Court.

There is a second critical difference: timing. When Judge Vinson issued his ruling, the Affordable Care Act had not yet gone into full effect. At that juncture, there were some preliminary programs that had been rolled out, and the Administration was preparing to implement the remainder of the law. Seven years later, the ACA has been fully woven into the fabric of the American health care system. Pulling the emergency brake on the entirety of the law would be logistically impossible. For this reason, and many others, Judge O'Connor was prudent not to issue a nationwide injunction, as the states had requested.

Third, the political dynamics are fundamentally different. In 2010, Obamacare's unpopularity, fueled by the surging Tea Party, led to the Republicans winning the House of Representatives, and taking more seats in the Senate. The Republican party quickly coalesced around the legal arguments advanced by Randy Barnett and other members of this blog. In the words of Jack Balkin, the arguments concerning the mandate went from Off the Wall to On the Wall. 2018 is very different. The popularity of the ACA, in particular the GI and CR provisions, is well established. Republican politicians who voted to repeal the ACA struggled to defend their votes during the midterm elections. Many of these members lost their seats, in part at least, due to the efforts to unravel Obamacare. The Republican opposition to the law has faded significantly.

Fourth, we have very different executive branches. The Obama Administration was singularly focused on defending the ACA at every juncture. First under the leadership of Deputy SG Neal Katyal (then-SG Elena Kagan wanted nothing to do with the case), and later with Donald Verrilli at the helm, the administration mounted a coordinated effort to save the law. Now the situation is quite different. Then AG Sessions declined to defend the constitutionality of the mandate, and concluded that GI and CR cannot be severed.

Fifth, we have very, very different Presidents. President Obama viewed the ACA as the cornerstone of his domestic legacy. President Trump, in contrast, has targeted the repeal of Obamacare since he was on the campaign trail—but not really. He still favors protection for pre-existing conditions and other popular aspects of the law, but he opposes the unpopular aspects. Shortly after the decision, President Trump issued two celebratory tweets that maintain this ambiguous posture.

Obamacare bad. Pre-existing conditions good.

The sixth difference may be the most important. Had the Supreme Court set aside the ACA in June 2012, there would have been zero political appetite to restore the law in any regard. Republicans would have claimed the decision as a political victory, and moved on. Perhaps Mitt Romney would have won the election—we may never know.

2019 is every different. If the Supreme Court were to hold that the law's GI and CR provisions were unconstitutional, I suspect that Congress would re-enact those provisions with broad bipartisan support. There is no constitutional problem with Congress enacting these standalone insurance reforms, without the mandate. Indeed, to avoid any disruption, the Supreme Court could delay its ruling by a single tax year to give Congress a chance to act. (Justice Alito floated this option during oral arguments in King v. Burwell.)

Moreover, states can enact their own GI and CR provisions as a fall back in the event that Texas is victorious. Many states already have restrictions that are more protective of those under the ACA. Finally, unlike with King v. Burwell, where states were at risk of losing millions in federal funding, here the states can be proactive and ensure no gaps in coverage. In other words, now that Congress zeroed out the penalty, the political fallout from a decision declaring that GI and CR were also unconstitutional would likely be short-lived.

Seventh, in 2012, we had no idea what the Roberts Court would do with the ACA. However, NFIB told us what the Justices thought of the constitutionality of the mandate. And, recent reporting about the case suggests that Chief Justice Roberts was willing to set aside the mandate, as well as the GI and CR, but could not persuade Justice Kennedy to follow along with this narrower path. Now, Justice Kennedy is gone, and he is replaced by Justice Kavanaugh, who—based on the earliest of lights—may have a stronger respect for stare decisis than did his predecessor.

It is not unthinkable for a majority of the Court to hold that the predicate of the saving construction no longer holds—the exaction does not raise revenue. Therefore, the GI and CR provisions cannot be salvaged. This sort of decision would reaffirm the Commerce and Necessary and Proper analysis in NFIB—an important rule I agree with. Moreover, that ruling would demonstrate the saving construction was a proper application of the judicial role, rather than an ad hoc exception to avoid a politically unpopular ruling. (Six years later, I have come to grips with the bulk of the saving construction, but still cannot accept the Chief's analysis of direct taxes.)

In future posts, I will break down the technical details of Judge O'Connor's 55-page opinion. Here, my sole aim was to place this decision in the broader context of the ACA litigation, which I have been carefully covering for nearly 8 years.

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92 responses to “Understanding the New Obamacare Decision, Texas v. United States: Part I

  1. “Activist” judges are all right as long as they agree with your opinions.

    Protecting DACA is all right, but ruling against ACA is apparently evil.

    1. Funny, I was just wondering where all the liberal law professors now decrying this activist judge were when the Supreme Court decided Roe v. Wade, or Obergefell, or when the Hawaii District Judge struck down Trump’s so-called “muslim ban”, even though his action was specifically contemplated by and authorized under the INA. Apparently, it only counts as judicial activism when it reaches a result they don’t like. Don’t these law professors understand that the rank hypocisy simply makes them look like complete tools? That it destroys their credibility?

      1. How do you assess the credibility of right-wing law professors, in particular the Conspirators during the time of Trump?

        1. By the quality of their arguments, the same way I assess everyone else.

  2. “That decision, of course, was Florida v. HHS….” Excellent and amusing way to start the blog post, seriously.

    Regarding the issue of taxes v. fines, it’s only a matter of time before judges start using CJ Roberts’ argument as precedent. Once the Excessive Fines Clause is applied against the states, federal judges can start striking down state taxes as excessive. Or maybe they’ll wait a few more decades before they start doing that, out of judicial modesty.

    It will be interesting to see what he Fifth Circuit does in this Texas v. U.S. case. The majority in NFIB wanted to let Congress do its will, and I think the will of Congress was to render at least the GI and CR provisions invalid without expressly repealing them (which would have required more votes in the Senate). Congress and the President will probably patch things up unless SCOTUS screws up again.

    1. Strictly speaking, I think Roberts’ argument doesn’t work that way. He ruled that a penalty, explicitly described as such by Congress, was a “tax” if that was the only way to save its constitutionalty.

      So, rather than allowing the excessive fines clause to be applied to taxes, it saves absurdly high fines FROM the excessive fines clause, by redefining them to be taxes instead.

      1. A tax is not a fine. A tax is levied against everyone who fits a particular criteria when they are not breaking the law. A fine is levied against a particular person for breaking the law. Paying taxes is a civic duty; paying fines is a punishment.

        There can be a gray area when it comes to tax penalties. Also, from an economic standpoint, both taxes and fines can be viewed as modifying incentives.

        1. The law in question actually calls it a “penalty”. Repeatedly.

          1. And? That is just wording the emphasizes the incentive effect all taxes and fines have.

            If I don’t contribute to my 401(k), I am penalized because the government will take more of my money in the form of taxes. What something is called is not as significant as the structure of the thing. Everyone who makes the perfectly legal choice to not contribute to their 401(k) is penalized in the form of higher taxes. In contrast, if you illegally park your car, that is a fine. If you do that too many times, maybe your car will eventually be towed and you will face more heavy consequences.

            A tax is a payment for legal activity. A fine is a payment for illegal activity.

            1. Your attempted distinction doesn’t define disjunct classes. It’s illegal not to have ACA-compliant health insurance. The fine for not doing so was $695/yr. But Roberts ruled that the “penalty” was also a tax. So, if you draw the Venn diagram, some fines are also taxes.

              It’s settled law, so far as I understand it, that a primary purpose of revenue-raising is central to the distinction. But that means Roberts got it wrong.

              Well, he did.

              1. But we all know that fines often have as their primary purpose as revenue raising too.

                Witness the speed traps in small towns.

                It is not and was never considered illegal to not have health insurance. Speeding is illegal. Even if some police officers only enforce this law not because of public safety, but to line the pockets of local governments.

              2. “It’s illegal not to have ACA-compliant health insurance.”

                You have written this a number of times, and it is not correct. You can refrain from having health insurance, pay the penalty (or tax or fee or fine or whatever you want to call it), and be entirely and completely compliant with the ACA. And after Jan. 1 2019, the penalty will be $0.00.

    2. “I think the will of Congress was to render at least the GI and CR provisions invalid without expressly repealing them (which would have required more votes in the Senate).”

      This a completely nonsensical statement. If you don’t have the votes, then by definition, that is not the will of Congress. The will of Congress is what it has the votes for.

      If a minority of members of Congress want a law to pass and a majority want it to not pass, the will of Congress is what the majority wants.

      1. Yes, the *desire* of one Party may have been “…to render at least the GI and CR provisions invalid without expressly repealing them,” but the *will* of the Congress, as expressed by passed legislation, was to reduce the Individual Penalty to zero.

      2. Without the IM the GI/CR provisions must, absent greater infusions of tax dollars than Congress will yet provide, result in a death spiral. But I agree that it’s not the business of courts to fix the unwillingness of Congress to recognize that the world is round and not flat.

  3. The problem with leaving the mandate on the books even if there is no penalty is that it still leaves room for mischief by unethical prosecutors and bureaucrats.

    It’s not hard to imagine a federal prosecutor charging someone for violating the ACA in conjunction with another federal law which criminalizes otherwise legal conduct in furtherance of breaking any other law.

    For instance if I’m an insurance agent selling non-ACA compliant policies. I’m I committing a wire conspiracy by inducing someone to drop their ACA plan by pointing out that by not providing all the ACA mandated coverage they could save money?

    I’ve heard of less tenuous theories offered by prosecutors and upheld by judges.

    1. But, per NFIB, you aren’t breaking the law by not having the specified coverage.

      If you’re paying the tax that results, which is now zero, you are in full compliance with the law.

      1. But they changed it so it isn’t a tax, so NFIB no longer controls how the mandate is interpreted. Now you are violating the law, not accruing a tax.

        1. At that outset the ACA exempted some people from the penalty while not exempting them from the requirement to maintain coverage including people who can not afford coverage, people with incomes below the federal income tax filing threshold, members of Indian tribes and people who had hardships which prevented them from obtaining coverage.

          I believe according to your argument, all of these people who chose not to obtain coverage have been violating the law from the outset. That strikes me as rather odd.

    2. Lots of unconstitutional laws are left on the books because they are not enforced so no one has standing to challenge them.

      In fact, depending on what “on the books” means, the statutes are often left literally “on the books” even after they are ruled unconstitutional.

      The mandate (apart from the penalty) is not law.

      1. According to the still-controlling SCOTUS ruling the mandate is most definitely good law. And it will remain law. but not necessarily enforceable law, as long as it remains on the books.

  4. Legislators work on a bill, trade bits and pieces, and compromise on a single law, which is voted on and signed as a single entity.

    For a judge to allow parts of the law to continue while other parts are voided is for the judge to erase all those negotiations and compromises. That is activist judge-made legislation of the most contemptuous arrogant sort imaginable.

    No law should be severable.

    1. But wouldn’t a judge just be undoing all unconstitutional negotiations compromises that went into it?

      Isn’t that what judges are supposed to do?

      Doesn’t SCOTUS do this kind of often as part of their job (as they see it)?

      1. A judge is supposed to reject laws that are unconstitutional, yes, but only by voiding the entire law. Anything piecemeal is alternative legislation. Same as the President having an all-or-nothing part — veto or sign. The President does not have a line item veto — why should judges?

        1. Some laws have explicit severability provisions.

          Practicalities: If some provision of a multi-thousand page Omnibus is deemed unconstitutional you propose to defund the entire government?

          1. Damn straight. Why should government be immune from consequences?

            If they want to avoid that, don’t put all their eggs in one basket.

            Why the devil would anyone want to make it easier for government to avoid accountability?

    2. If by “law” you mean “bill,” then are you arguing that the TCJA should be struck down as unconstitutional?

      If by “law” you mean something other than “bill,” then your first sentence is not true. The current health care law was *not* voted on and signed as a single entity.

      1. “Bill” before it is signed into “law”.

        The President doesn’t have a line item veto. Why shoudl judges have one?

        1. This might be an argument for a different scenario. But you understand that the Affordable Care Act and the Tax Cuts and Jobs Act are two different bills, right?

          1. And …..? The second did not repeal the first; both still stand. If Congress wants to modify their own law, that’s their business. It is not the President’s; he has no line item veto. It is not the judges’; they similarly should not be able to wield a line item veto.

            1. Interesting theory. Fortunately that’s not the way it works.

      2. The issue is whether parts of the ACA should be severed by the judge and allowed to continue after the TCJA modified the IM penalty in the ACA so as to render the IM clearly unconstitutional. The constitutionality of the TCJA is not at issue.

  5. “2019 is every different.”

    It’s a typo, obviously. But not sure what it was supposed to say…I can’t tell from the context. Is it just supposed to say, “2019 is different.”???

    1. It’s probably meant to say “very,” but since we can’t determine his intent, we should throw away the entire post, effective one month from now (to give him a chance to repost it with the error corrected).

    2. Just remove the first “e”.

  6. I question the presumption that Republicans struggled to maintain their seats for voting to repeal the ACA.

    1. Agreed. People vote for a multitude of reasons. Claiming anything is the but for is usually silly.

      1. Because we can’t actually know anything, right:

        For example, does anyone other than yourself exist? Perhaps everyone else if just a figment of your imagination.

        Actually, no, it is not silly to attribute cause-and-effect. Even though we are often dealing with probabilities and uncertainties. It sounds as though you don’t count anything as knowledge unless it is more or less absolute.

        1. You could make just as compelling a case the losses were because the GOP didn’t fully repeal the ACA. They won in 2010, 2012, 2014, and maintained their majority in 2016 by promising repeal.

          They lost seats when they failed to deliver by repealing and replacing.

          1. Well, if the GOP had repealed the ACA and actually replaced it with something better, I would have voted for them too.

            But the fact is, the idea of taking away people’s healthcare and replacing it with nothing did not help them. That was a factor.

            Another factor is simply the fact that a Republican was President. Even popular presidents tend to see their party lose seats in a midterm. Because when a political party is in power, people start to see the downsides of their promises as well as the upsides. Promises are so much more beautiful on the campaign trail when politicians talk about the benefits, without mentioning the costs.

            1. Repealing the ACA in its entirety without any replacement would NOT, in any rational sense, be “taking away people’s healthcare.” That was always nothing more than a silly, dishonest canard used to dupe the idiots into believing that they needed government to control healthcare. It would have simply made people responsible for acquiring their own healthcare. It would have eliminated the government using economically incoherent tricks to force young healthy citizens to subsidize everyone else’s health care, to force males to subsidize the healthcare costs of females, to force the responsible citizens to subsidize the illegal drug users who needed rehab and mental health services. In other words, it was a disguised income and wealth redistribution scheme which only made healthcare much more expensive for everyone who was not a parasite living on the government teat.

              Was healthcare way too damned expensive before Obamacare? Hell, YES! But that was precisely BECAUSE of way too much government interference in the market for healthcare, NOT the result of too little regulation.

              1. parasite living on the government teat.

                This is my favorite mixed metaphor ever. I hope DjDiverDan compliments nursing mothers by saying “you’ve got a very cute parasite there.”

              2. “Repealing the ACA in its entirety without any replacement would NOT, in any rational sense, be ‘taking away people’s healthcare.'”

                Fewer people would have access to healthcare in the REAL WORLD. Therefore, it would take away people’s healthcare.

                If you take a person who can’t AFFORD healthcare, and you say, I am not really taking away your healthcare, I am just saying you have to pay for it yourself when you KNOW that this person cannot AFFORD the healthcare, you are IN FACT, taking away their healthcare.

                Why is this a hard concept for you?

                1. Sure, fewer people would have access at a subsidized price. As you recognize.

                  It’s not a hard concept: You’re not telling them they can’t have it. You’re telling them they have to pay for it themselves.

                  They can’t afford it? Yes, I could easily believe that. But the answer to that is some combination of voluntary charity and explicit, on budget welfare programs, not ordering private industry to provide the insurance below cost.

                  Some people can’t afford food. We don’t order grocery stores to sell the food to them at a loss.

                  Some people can’t afford cars. We don’t order car dealerships to sell them cars at a loss.

                  Why should health care or insurance be different. You want the government to subsidize health insurance for some people? Fine, make the case for it. Don’t just order insurance companies to sell polices at a loss.

            2. ===Another factor is simply the fact that a Republican was President.===

              Not to defend Trump, but he did say he’d sign anything the (Republican) congress sent him. This one is all on the party proper.

  7. And yeah, I think my sarcastic comment above expresses what I think about this ruling. Yes, the mandate is unconstitutional now that the tax is zero. But when Congress set the tax to zero, they ratified the severance of the mandate from the GI and CR provisions.

    In fact, the mandate itself (“you must have insurance”), as opposed to the tax (“if you don’t have insurance and have too much income you are subject to this tax”), has always been unconstitutional. It wasn’t explicitly ruled so in NFIB, but it wasn’t really explicitly upheld in NFIB either. The way I read NFIB, Roberts implicitly ruled that the mandate itself was severed from the tax.

    1. If you read it that way you were hallucinating. Roberts did not in the slightest indicate that the mandate was unconstitutional.

  8. Dumb question. I haven’t read the language of the 2017 amendment. But everyone describes it as “zeroing out” the penalty/tax. Given that originally the claim of the government was that you were compliant if you purchased insurance OR paid the penalty/tax, doesn’t that still hold?

    As for whether it can still be a tax, I’m at a disadvantage here since I never thought it could be in the first place but does a law under the taxing power have to “raise revenue.” The code is riddled with tax breaks and credits that do the very opposite of raising revenue.

    And I’ll wait to hear the explanation why the 2010 finding is relevant because I admit I lean towards Adler’s view that it’s not.

    All that said I also agree with Professor Adler that the states don’t have standing. And given that there is no consequence for not having insurance I don’t think anyone does.

    1. “…does a law under the taxing power have to “raise revenue[?]””

      The IM penalty is explicitly a penalty, not explicitly a tax. To be viewed as a tax its purpose must be to raise revenue. That is, independently of the NFIB opinion, settled law. If it’s zero it remains a penalty but can no longer be a tax. So Robert’s anyway crappy 2012 argument for why the 2010 individual mandate is constitutional now utterly fails. But that is still the controlling opinion on the 2010 mandate, which has not been changed (only the penalty amount has), so of course the 2012 opinion is relevant to that point. That the tax law contains provisions that don’t raise net revenue is neither here nor there unless they too unconstitutionally coerce behavior.

  9. I don’t think that, even before 2017, the federal individual mandate was essential to GI and CR (or, a fortiori, to less related provisions in the ACA) once it was decided by Roberts and NFIB dissenters that the federal government lacked authority to impose a mandate under the Necessary and Proper Clause.

    First, let’s assume that the federal government can enact GI and CR. Not everyone would agree as an original matter, but there’s a Supreme Court decision from the 40s that supports the conclusion.

    Second, let’s assume that Congress in 2010 did view an individual mandate as essential to GI and CR. (A stronger claim here would be that Congress not only did view an IM as essential but that it would have been unreasonable to view it as inessential. I don’t think this stronger claim changes my bottom line, but it makes the reasoning more complicated.)

    Third, Congress thought (and I agree) that, given the first two points, the N&P clause gave it authority to enact a federal individual mandate. Let’s call that the “strong N&P” version of the Constitution.

    Fourth, the Chief Justice and four dissenters in NFIB said that Congress lacked authority under the N&P clause to enact an individual mandate (the “weak N&P clause”).

    1. Under the weak N&P clause version of the Constitution, there will be situations where Congress has authority to enact provisions A and B, which, however, will not work well (or will affirmatively cause mischief) unless provision C — which only the states can enact, is also enacted. Under that version, either Congress lacks authority to enact A and B (even though there may be an affirmative authorization in Art. I) or it can enact A and B and in effect leave the states constrained to enact some version of C (depending on their judgment whether C is necessary given A and B). I think the latter is the better view of the consequences of a weak N&P clause, though I don’t like the choice (I’m a believer in the strong clause version). I concede that here things might work out relatively well, as different states could experiment with whether or not to enact IMs and how strong the IMs are.

      1. Depends on how bad (and what the nature of) the mischief that is affirmatively caused by provisions A and B without C is.

        If A and B without C violates individual rights, or are coercive in a way that violates state sovereignty, then A and B without C is unconstitutional.

        But in any case, that’s not the argument made in Texas v. United States. The argument being made is that though A (GI) and B (CR) and C (the mandate) and D (the tax) was constitutional, A and B and C but not D is not, and that striking down C cannot be down without striking down A and B.

        (Personally, my position is that C is unconstitutional; that C can be struck down without striking down A or B or D; that NFIB implicitly, though not explicitly, struck down C without striking down A or B or D; and that Congress recently removed D leaving A and B and the unconstitutional and unenforcible C.)

        1. “If A and B without C violates individual rights, or are coercive in a way that violates state sovereignty, then A and B without C is unconstitutional.”

          I was taken as implicit (though I didn’t make it express) that, by saying that Congress had power to enact A & B, it would follow that neither or both violated individual rights (no one, as far as I know, argues that CR and GI violate individual rights). I am similarly implicitly assuming that C does not violate individual rights. Some may argue that the IM does so, but that wasn’t the argument that the Chief Justice and NFIB supporters accepted.

          I think that, if the version of the Constitution we live under is that of what I called the weak N&P clause, then it follows (as the least bad conclusion, albeit maybe not the only possible one) that it doesn’t violate state sovereignty to let Congress enact A&B with the expectation that States will, to some or even a great extent, feel pressured to enact C. That’s part of what it would mean for the Framers to have decided (if they did) to divide authority between the two levels of sovereigns by giving Congress powers in some instances to enact laws while withholding the authority to enact the measures necessary to make them work. I agree that that’s at least a somewhat troubling consequence of the weak N&P clause version of the Constitution, but, as noted, I don’t think that interpretation is correct.

          Thanks for reading my comment!

          1. My pleasure!

            I guess I’m having trouble seeing what the A, B, and C would be, because if A and B are GI and CR, and C is the individual mandate, C absolutely is not necessary or essential. But if A and B were something else (like Medicaid expansion), maybe there is a C which, if present, would render A and B constitutional, but without C would be unconstitutional.

            As far as whether or not GI and CR without the mandate does violate individual rights, I can’t discount the possibility that someone will come up with a winning argument that they do, but the only arguments I can think of that they do would involve some serious overturning of precedent.

            On the main point though, there’s a fine line between pressuring states to enact C and coercing states to enact C. The latter is unconstitutional. But if C is an individual mandate, I don’t think Congress is doing *either*. We don’t have to have an individual mandate. In fact, we *shouldn’t* have an individual mandate.

            1. Your comment suggests an interesting point. I wonder if it counts for something in the severability analysis that the States, all of which could have enacted an IM ever since NFIB, have not done so. Doctrinally, I’m not sure how to get to state inaction couting; the two boxes seem to be either the intent of Congress in 2010 about severability or the intent of the 2017 Congress. But, I dunno, maybe we could intuit a bit outside the boxes and consider the inactions of state legislatures as data points reflecting considered legislative judgments (granted, not a legislative judgment of any Congress) that, in light of eight years of experience, GI and CR are workable without an IM after all.

              1. The severability of what, exactly?

                Are we supposed to guess what the Congress in 2010 intended about the severability of the individual mandate *with the penalty set at $0*? Because that’s what’s getting struck down, if anything.

                I can come up with so many ways of interpreting this such that Texas loses, and none where Texas wins.

                1. It’s clear that the 2010 scheme depended on coercing the young and healthy to subsidize the old and unhealthy and that without the coercion the scheme must fail. Maybe making paying for the health care of the former through third party insurance unavailable unless they overpay for it (which requiring GI and CR makes inevitable) would be sufficient coercion even without the penalty, particularly if enough tax dollars are devoted to subsidies, but I see no reason or basis for the judge to make this decision. If Congress wants a constitutional ACA let it pass one.

      2. Congress has authority to enact provisions A and B, which, however, will not work well (or will affirmatively cause mischief) unless provision C — which only the states can enact,

        Under your “weak” version the N&P clause seems useless. It sounds like such an interpretation only authorizes Congress to do things that are already authorized elsewhere in the Constitution.

        That can’t be right. The clause must authorize other actions.

        1. Some versions might be weaker (or stronger for that matter) than others. Suppose that Congress has independent authority to enact A and B, that it lacks independent authority to enact C, that C is necessary to make A and B work, and that it is proper at least in the sense that some sovereign could enact C (if only the States), so that, for example, C does not violate individual rights.

          The strongest version of the N&P clause would be that Congress can enact C. The weakest version is that Congress cannot enact C. There could be ranges in between where the answer is “it depends” on, well, who knows?

          I’m either for the strongest version or an intermediate version strong enough to allow the IM (given how seldom the question comes up, there’s probably not much daylight between an intermediate version that strong and the strongest version.)

          Whether the Chief Justice and the NFIB dissenters meant to adopt the weakest version or an intermediate version in the weaker end of the range I don’t know. If the latter, the N&P clause would still do some work.

          1. I think it would e easier to discuss this if we had something a bit more concrete. What do you consider to be a “C” that would fall somewhere on your spectrum?

            1. A could be guaranteed issue, B could be community rating, and C could be the Individual Mandate.

          2. “I’m either for the strongest version or an intermediate version strong enough to allow the IM”

            A version where “necessary” means completely unnecessary.

            Well, that’s *almost* the one we have.

        2. The problem with interpretation of the necessary and proper clause is all the emphasis is on necessary, with almost no thought given to proper.

          For instance I’m sure Congress and FDR actually thought it the Agricultural Adjustment Act was necessary to address what they mistakenly thought was a supply problem. And the court upheld them in Wickard, but didn’t give much thought to whether it was proper to prevent someone from feeding his own wheat to his own cattle.

          1. The courts have transformed it from a “necessary and proper” clause to more of a “convenient and, eh, whatever” clause.

            1. Brett, not a jab, just curious – is your issue with McCulloch, or just the more commonly inveighed upon Wickard?

      3. I may be missing the point, but I don’t think it’s simply a matter of whether Congress has the power to enact A and B with or without C, but whether, even if it has the power, that is what it has chosen to do.

        Suppose Congress enacts a Bill – The Donald Act – to construct a wall along the US-Mexico border, raising a special $30 billion tax on internet retailers to finance the project and specifying that the construction contract must be awarded to PJSC VV Putin, a Russian Corporation. And that each of the three provisions – the wall, the tax and the contract are not severable, ie Congress explicitly does not want one or two of them to proceed without the others. And let us stipulate that not only is the law constitutional in toto, but that each of the three legs would have been, individually, be constitutional if enacted separately.

        And halfway throgh the construction of the wall Congress passes a new law forbidding any Russian coroporation from doing business in the United States. The new law, as it applies to Russian corporations doing business in the US is straightforward – they must stop.

        But what other – legal – implications are there for The Donald Act ? The question is not whether Congress could originally have passed the wall and the funding without the Russian construction but since it did not do that, what is to happen to the wall in the light of the later Congress’s forbidding of Russians doing business in the US ?

        1. Seems simple enough.The wall doesn’t get built unless Congress passes a law allowing the contract to be awarded to a different firm.

          1. So you’re not buying the idea that the later Congress must be presumed to have new intent as regards The Donald Act – specifically that the requirement for VV Putin to build the wall has become severable – on account of its later Act banning russkies ?

            1. If the new law doesn’t exempt the old, and is enacted in general terms, it overrides the old law. It’s as simple as that; They don’t have to have though about that specific implication, it’s enough that, as enacted, it has it.

  10. What is missing from this list of differences is that the mandate as it exists today is not the one at issue in NFIB. Arguing that a majority of the Court found the old mandate unconstitutional – rather stupidly IMO – does not mean they would rule the same on the current toothless version.

    Look, this whole thing – “penalty,” “tax,” whatever is legalistic BS being used to promote the partisan political cause of killing Obamacare.

    If the government can reduce your taxes for doing something then it can increase them for not doing something. It’s the same damn thing, no matter what Randy Barnett says.

    1. Ah. But Randy Barnett’s imagination is the law. And yours is not.

      Bow down to your ruler, peasant!

    2. You seem to have lost the thread. Whether the government can tax you for not buying insurance is no longer the issue. Roberts said the mandate was Constitutional because the enforcement mechanism (“penalty”) was a tax. It’s no longer a tax, so the mandate is unconstitutional, by his plain language. No, there is no “new mandate”, only the penalty has changed.

      1. Of course it’s no longer a tax. It’s no longer anything, since it doesn’t existent.

        How a non-existent thing can be either Constitutional or not is a mystery to me.

        Are unicorns unconstitutional?

    3. You just seem to have a different view of the people’s relationship to the government than Barnett.

      You hold the view the Federal government can order us to to just about anything it wants to. Barnett doesn’t find that power in the constitution.

      1. That isn’t even the issue at bar, though, is it? We’ve been around about that enough even I’m tired of it…well, that’s not true. But I’d like a dedicated thread.

        Anyhow, isn’t the issue here not about the government’s ambit but rather separation of powers and the operation of severability?

      2. You hold the view the Federal government can order us to to just about anything it wants to.

        No. I have the view that the federal government can use the tax code to reward certain behaviors and that that the Obamacare penalty was logically indistinguishable from the many ways the tax code already did that.

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  12. “which I have been carefully covering for nearly 8 years”

    As Trump would say: Sad!

    Dedicating yourself to warping the law for political ends is, I suppose, one way to try to gain much more influence than you could get by ordinary means of political participation.

    In the long-run, partisans who succeed in warping the law for political and ideological ends in order to avoid the impact of democracy are not likely to enjoy the unintended consequences. Just recall Dred Scott. In that case, Justice Taney thought he was doing the right thing with as much conviction as those who now would like to deprive people of basic healthcare, an entitlement to which, was democratically chosen.

    The real reason the ruling here will not be upheld is the same reason that the original challenge to the ACA failed. It will not be viewed as politically feasible by the judges who make the decision. The decision here to not sever the rest of the ACA from the now non-existent individual mandate is, of course, completely imaginary. But so was the so-called activity/inactivity distinction. Both ideas came from the minds of ideologues. And to some extent, that which we call “law” is merely the privileging of some imaginations over others in a non-democratic manner. In this case, the political imprudence is so clear, that Judge O’Connor fellow ideologues are already objecting. But O’Connor’s decision is no more a product of a fevered imagination than was the activity/inactivity distinction.

    1. “As Trump would say” is not a compelling argument.

  13. Another dumb question from me. If the issue is zeroing out the tax why isn’t the constitutional infirmity simply the change the TCJA made and therefore the proper ruling is that the amendment was unconstitutional, not the mandate itself? That would make the proper remedy to go back to pre-amendment state with whatever the dollar figure was as the tax/penalty. It seems that a proper remedy goes back to the constitutional (at least in SCOTUS eyes) status quo.

    1. That was “addressed” in Josh Blackman’s article (which the opinion basically just incorporated, with a cite). You see, Congress has the power to cut taxes, so clearly there can’t be any infirmity with the tax cut bill. (After all, that would involve a judicial remedy that went after a conservative policy goal, and we can’t have that.) In addition, the parties to the case are not asking the court to strike down the tax cut bill, so the court needs to be modest, and (wait, double checking…) strike down the entire ACA.

      If you think I am kidding about my characterization of these “arguments”, here are the quotes:

      “But here, the Plaintiffs challenge the original statute, not the TCJA. Nor would it make
      sense for them to challenge the TCJA?Congress has plenary power to lay and repeal taxes, as the
      Intervenor Defendants argue.”

      “Because of how Texas structured its challenge, the district court is presented with a narrower menu of options with respect to severability. No one?not the Plaintiffs, not the Intervenors?has challenged the constitutionality of the TCJA. Federal courts lack a roving license to flip through the U.S. Code with a red pencil to void one statute in order to save another. Invalidating the 2017 tax cut is simply not an option in the Texas litigation because it has not been challenged.”

    2. Of course, if a conservative entity sued arguing (say) that a tax on firearms was unconstitutional, such a challenge would obviously be thrown out, because “Congress has plenary power to lay and repeal taxes.” I would certainly not presume to suggest that the judge would treat legal arguments going after conservative policy goals any differently than arguments going after liberal policy goals.

      The judge also complains that his hands are tied (too bad so sad), because Texas isn’t challenging the tax cut bill. Yet the judge right above says that it would make no sense for Texas to challenge this bill, because it is a bill that repeals a tax. Obviously whether Texas challenged the bill would not affect the court’s analysis (given that the court just said that such a challenge would fail), so it is a bit strange why the Court brings up the point at all.

      Yet if we ignore that and take this argument seriously (I know I know… just bear with me for a minute), the court seems to be saying that a particular plaintiff’s failure to identify the correct remedy means that it has no choice but to go with an incorrect (and facially absurd) remedy that the plaintiff did identify. The court surely has no power to throw the case out for want of a non-frivolous legal argument (perhaps allowing a new suit that actually identifies the correct remedy).

  14. How much longer do conservatives figure they can forestall single-payer health care in the United States?

    If they have a different aspiration, why aren’t they trying to devise and implement something better?

  15. I expect we will see a hundreds of blog postings about: Is the Individual Mandate a mandate if the penalty is zero?

    It’s still a mandate.

    The actual penalty has nothing to do with it.

    When I’m driving, and if I see a traffic sign “Do Not Enter”, I don’t look up the penalty and then decide whether to enter or not. If it says Do Not Enter, I take it as legally mandatory and find another way to go. If the penalty were zero I still would feel obliged to obey. This is what law-abiding people are taught to do.

    The Individual Mandate is like that traffic sign.

    Furthermore, even though disobeying the mandate by itself carries no penalty, might not it cause you to be penalized more for disobeying some other part of the law?

    Can anybody be really sure that an overzealous prosecutor will never argue that you should be denied bail or probation for some minor violation because, having already violated the Individual Mandate, you are now a second-time offender should not be considered a law-abiding person? And that an overzealous judge, who was a prosecutor himself for 10 years before recently becoming a judge, won’t agree?

    And finally, if in a conversation with the FBI you deny having violated the law recently, but you didn’t abide by the Individual Mandate, isn’t it possible that they will accuse you of lying? And if that risk forces you to say that you did violate the law by disobeying the Individual Mandate, then how is it not a mandate?

    1. Based on the government’s contentions during the original litigation as long as you pay the penalty you are fully compliant with the law. Assuming that is still true, nothing has said differently, If the penalty is 0 and you pay the 0 you are compliant. At least that is just as likely a reading as saying you violated the law.

      Your parade of horribles then are nothing. Any competent judge would ask if this is the case before making a judgement one way or the other.

  16. (A mandate with no attached penalty for violating it is no “mandate” at all, but people conflate the mandate and the penalty, as will I, though I think my meaning is clear.)

    The consensus of legal commentators I’m seeing is, “The mandate is unconstitutional, but the rest of the law can survive.” Well, why didn’t the Supreme Court just say that in NFIB, rather than torture words to declare it a “tax”?

    Since the passage of the ACA, both sides have argued (or, more precisely, presumed) that the mandate was an essential and inextricable part of the law, perhaps the most essential. It is (supposedly) the funding mechanism for the law. Is it so unreasonable to argue that if the funding mechanism for a law is found unconstitutional, that Congress would want the rest of the law to survive? (In fact, under the reconciliation process, the Congress COULD NOT have passed the ACA without the penalty offsetting costs.)

    As the elimination of the penalty in the 2017 tax cuts was debated, Democrats argued it would kill the ACA. President Trump enthusiastically concurred. But now the penalty is gone, and, all of a sudden, it’s no big deal. In sum, I would not be so certain that this decision will not ultimately be upheld.

    1. You argue that the mandate was essential because it was “the funding” mechanism of the ACA. While it was intended to raise significant revenue, there were a lot of other funding sources in the ACA (e.g., the tax on tanning salon services) and a lot of cost-savings provisions (e.g., some of the Medicare provisions); there were a lot of costs to the feds in the ACA (Medicaid expansion, e.g.); and there were a lot of regulatory provisions that wouldn’t have had a big fiscal impact on the federal budget either way. As a mechanism for funding the ACA, the IM small beer, and the funding going away shouldn’t make it inseverable from, say, changes to the Black Lung program that the ACA made.

      Others argue that the mandate that everyone get acceptable insurance or pay at tax penalty is inseverable at least from the guaranteed issue and community rating provisions since it was feared that the risk pool would grow progressively less healthy without a mandate and that the insurance market would enter a death spiral. Whatever may have been the view in 2010, we have two more recent data points: First, states, which have always been free to enact IMs if insurance rates (which they also regulate) get out of hand, have not found it necessary to do so. Second, Congress in 2017 repealed the IM’s penalty yet retained GI and CR, which implies that Congress as a body — whatever the diverse views of some of its members — has legislated GI and CR without a federal IM.

  17. Josh is an idiot.

    The Supreme Court already found (to cheers of progressives nationwide) that the requirement to purchase insurance was integral to the ACA. They found that, despite the clear wording to the contrary, although the government could not legally compel you to purchase something, the FINE was actually a TAX and so it was ok. So any legal penalties were for the failure to pay a tax.

    As soon as the tax was reduced to zero, the legal penalties were not longer to enforce a tax, but rather to compel purchase of insurance, something the Supreme Court had already precluded in it’s verdict.

    So, the Supreme Court already found the mandate could not be severed from the balance of the ACA, AND the Supreme Court already found the mandate allowable only because the enforcement was enforcement of a tax. So when the mandate has no tax, the enforcement is unconstitutional and it can’t be severed from the ACA, so the entire ACA is therefore unconstitutional.

    Logic, try it some time.

    1. See, this is where the fun is.
      By most accounts of separation of powers, severability is a question of Congressional intent, not judicial intent. Usually it comes up when a part of a law is held unconstitutional.

      But in this case, the issue is that part of a law was repealed by Congress. So! Does that mean Congress must by implication intend severability, else they would have killed the entire law? Is Congressional intent even the correct question to ask? What of the remedy?

      Fun stuff.

    2. If the mandate is still a mandate, then why isn’t the tax still still a tax?

      I mean, if in whatever universe you live in you can call something that has absolutely no penalty attached a government mandate, you can just as well call a zero tax a tax.

      It’s absurd on its face. If the penalty had been lowered to say, ten cents, the law would be just fine. But make it zero and the law becomes a gross unconstitutional imposition on the public.

      I do agree that Josh is an idiot.

  18. I would hope that the constitutional authority of the legislative critters is not limited by their random choice of different words like “penalty,” “tax” or “surtax.” It seems like we have a surplus of pedants on the federal bench these days.

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