Affordable Care Act

Court Stays Ruling Invalidating the Affordable Care Act Pending Appeal

In the midst of the holidays, Judge O'Connor paves the way for an appeal of his decision concluding all of the ACA is unlawful, while further demonstrating the weakness of his initial decision.

|The Volokh Conspiracy |

On Sunday evening, Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas took action to facilitate the prompt appeal of his decision in Texas v. U.S. that the so-called individual mandate is now unconstitutional (due to the lack of a tax penalty enforcing it) and the entire Affordable Care Act is likewise invalid because it is inseverable from the mandate. He issued a final judgment on this claim and an order staying the judgment pending appeal.

The order was accompanied by an opinion in which Judge O'Connor reiterated the legal analysis underpinning his decision. In the process, Judge O'Connor offered further evidence of the weakness of his analysis, particularly with regard to standing. Setting aside any procedural questions about Judge O'Connor's latest actions, I believe this opinion illustrates why the U.S. Court of Appeals for the Fifth Circuit should dismiss this case on standing grounds.

In his opinion, Judge O'Connor endeavors to explain why he does not believe the intervenor states will succeed in challenging his decision. This is because the likelihood of success on the merits is one element in the required analysis for whether to issue a stay. This portion of his opinion would seem to be unnecessary, as it can be assumed that a judge believes his or her decision is correct and will be affirmed. Judge O'Connor nonetheless spends twenty pages defending and reiterating the conclusions of his prior decision—and repeating many of the mistakes I've previously identified.

As standing is a threshold inquiry, the balance of this post will focus on Judge O'Connor's expanded standing analysis, which is no better than the standing analysis in his prior opinion, and is directly contrary to applicable precedent (including those cases Judge O'Connor cites throughout the course of his opinion).

The central problem plaintiffs face in Texas v. US is that they face no consequences from failing to comply with the ACA's minimum coverage provision. There is no penalty, financial or otherwise, from the failure to comply, nor do the plaintiffs allege any. This means that they cannot satisfy the requirement that they have suffered an actual or imminent injury-in-fact that is concrete and particularized.

Judge O'Connor attempts to get around this problem by arguing that denying standing "would run headlong into the well-established doctrine that individuals need not first disobey a law to earn standing to challenge it." There is such a well-established doctrine but, contra Judge O'Connor, this applies where there is an actual threat of prosecution or some other legal or practical consequence from failing to comply with the challenged law, and this point is made abundantly clear by the cases Judge O'Connor cites in the accompanying footnote.

The first case Judge O'Connor cites on this point is Steffel v. Thompson, 415 U.S. 452 (1974). As Judge O'Connor claims, this opinion explains that an individual is not required to disobey a law before challenging it, but this is because (as the Steffel court explained) an individual need not "first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights" (emphasis added). Key to the Steffel court's analysis is that the petitioner would expose himself to an actual threat of prosecution by violating the law in question. Under the ACA, however, there is no such threat for there is no threatened consequence from failing to acquire a qualifying health insurance plan, nor do the plaintiffs even attempt to claim otherwise.

The second case Judge O'Connor cites in this footnote, Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017) makes the point even more explicitly—and in the precise portion of the opinion Judge O'Connor cites. In Gee, the Fifth Circuit noted "the well-established principle that a threatened injury may be sufficient to establish standing." This is absolutely true. An imminent injury, so long as it is concrete and particularized, is sufficient under Article III—but there must still be an injury. As Judge O'Connor notes, Gee goes on to explain that plaintiffs "need not wait to file suit until PPGC is forced to close its doors to them and all other Medicaid beneficiaries." Yet this is solely a question of timing—whether the plaintiff needs to wait to be harmed before filing suit—and in no way substantiates the claim that an individual may have standing to challenge a law, the violation of which threatens no consequences whatsover.

There are similar problems throughout Judge O'Connor's analysis. For instance, he later claims that plaintiffs have suffered a "constitutional injury" because the law is imposing an unconstitutional obligation upon them, and that this is sufficient to satisfy Article III. Yet Judge O'Connor fails to cite a single case in which the "constitutional injury" constitutes no more than an allegedly unconstitutional government action divorced from any practical or legal consequence for the plaintiff. Rather, the cases Judge O'Connor cites in support of this claim involve laws that imposed some adverse consequence upon those who failed to comply, whether a tangible regulatory burden or denial of a concrete government benefit or a threat of sanction. Moreover, as case after case Judge O'Connor cites makes clear, the actual or threatened imposition of such sanctions is key to the standing analysis.

Judge O'Connor later writes:

The Intervenor Defendants argue the Individual Plaintiffs cannot plead a constitutional injury (or any justiciable injury, for that matter) because the Individual Mandate no longer compels compliance. . . . But standing analysis and merits analysis are fundamentally separate inquiries, and this line of attack conflates them. That is, it rests on the premise that written law, like § 5000A(a), is not binding—which is one of the Intervenor Defendants' premiere merits arguments in this case.

Judge O'Connor is correct that standing analysis and merits analysis are separate, but he completely confuses what is required to establish standing. At the standing stage, plaintiffs must show that they have suffered or will suffer an injury. At the merits stage, they must show that the action causing the injury is unconstitutional. What this means is that the Texas plaintiffs need not show that they are unconstitutionally mandated to purchase insurance in order to show they have standing, but they are absolutely required to allege some actual consequence of their failure to comply with federal law, if not a financial penalty or legal sanction, something that is concrete and particularized to them. That the same fact is relevant at both stages—that the ACA imposes no legal or financial consequence on the failure to purchase insurance—is immaterial.

Under Judge O'Connor's approach to standing, anytime anyone thinks that federal law requires them to do something they would rather not do, they have standing to bring suit in federal court. Perhaps this is how standing should work, and perhaps plaintiffs should not be required to identify any tangible consequence that could befall them should they not comply with federal law, but that is not how decades of Supreme Court and Fifth Circuit precedent have understood the relevant inquiry.

The remainder of Judge O'Connor's analysis repeats the errors of his initial opinion, so I won't reiterate them here. Suffice it to say that now that Judge O'Connor has paved the way for an appeal, I do not expect his analysis to survive.

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60 responses to “Court Stays Ruling Invalidating the Affordable Care Act Pending Appeal

  1. I can’t help but think (and this is not my area of expertise so I welcome correction) that standing is pretty watered down already, so O’Conner’s decision isn’t a big deal. If environmental groups have standing to sue in federal about EPA land use policies using the amorphous grounds of standing being the injuries to visitors to national parks not seeing the estimated appropriate amount of old growth timber, then the reputational effects of not paying a non-existent fine should be standing.

    I appreciate Adler’s intellectual consistency though.

    1. Standing wasn’t watered down in Lujan. But the injury in EPA cases (could you cite the one you have in mind?) is an at least alleged physical injury somewhere, rather than plaintiff’s voluntary compliance with a law that has no penalty. It will be difficult for SCOTUS to articulate a standing analysis that permits this new class of cases (“constitutional injury”).

      More importantly, the plaintiffs can’t win on the merits, since the standing problem is nearly identical to their merits issue. If they aren’t compelled, there’s no mandate. If there’s no mandate, there’s no need to sever anything. The law ceases to have any constitutional problem.

      1. The standing issues I’m speaking about with forest management plans were in cases like
        Sierra Club v. Marita

        My understadning is that standing got so watered down in these types of cases that the courts allowed for the Sierra Club to sue on behalf of visitors to parks. Entire history of the litigation, favorably written, from the winner’s point of view at Justice.gov

        I understand more now the circular logic involved with the decision. Thanks.

        1. I’ll need help with how Marita lines up with the facts in your OP. That had to do with imminence of injury, not the injury itself. I don’t see that it’s hard to show that the Sierra Club has an actual interest in the use and management of federal lands. You framed it in trivial terms (“amorphous grounds of standing being the injuries to visitors . . . not seeing the estimated appropriate amount of old growth timber”) but any injury suffices, no matter how trivial you might think it. And the Court has to assume the truth of the injuries asserted. In Marita, Sierra Club was alleging direct organizational standing.

          You seem to be thinking of representational standing, which still only allows the organization to bootstrap onto at least one of its member’s injuries. But that wasn’t at issue (so far as I can tell) in Judge O’Connor’s opinion. The plaintiffs asserted direct standing. This case is about broadening the injury-in-fact entirely to cover voluntary compliance with the law.

          1. Let me clarify something. The court found standing for some individual plaintiffs. There probably were entities asserting representational standing, but since the court only needs to find one plaintiff with direct standing to proceed, that wasn’t adjudicated (so far as I can tell). In any event, even the watering down of representational standing requires an injury-in-fact affecting some person in the world, so it really doesn’t alter standing generally, just who may assert it.

            1. Thank you for taking my flippant comment so seriously, I had not thought about the specific issue in those cases in as much depth, and I defer to your judgement on the distinction.

              Taking a step back, I’m looking at how the expansion of standing has allowed courts to play a larger role in the political system than they otherwise would have. We are closer that we realize to a point where standing itself is not even an issue, as long as their is an amorphous claim to an injury. The idea really took off with the book “should trees have standing”, that is, that the environment should be granted legal rights. SCOTUS narrowly didn’t go for it, and the issue continually comes up. This is why, to me at least, the monkey selfie case was so interesting.

              1. “…as long as their is an amorphous claim to an injury.”

                I would make it harder for plaintiffs to establish standing because I think the Supreme Court has gone too far. I support judicial minimalism. I agreed with Scalia in Lujan. To the extent others think the environment should have adjudicable rights in federal courts, I obviously disagree.

                1. While I do agree with Lujan, it seems that Congress should have (in the many years since) taken note and amended the ESA to either ratify the decision statutorily or provide an alternative.

                  After all, the ESA is entirely a creature of Congressional will.

    2. “the reputational effects of not paying a non-existent fine should be standing.”

      Respectfully, WHAT reputational effects of not paying a non-existent fine?
      As was recently re-affirmed, tax records are private, not public, documents. How does John Q. Public know that Jane Doe didn’t pay the non-existent fine for not carrying health insurance? I mean, unless he asks her?

      1. Nevermind, just an idea not thought fully through. Happy new year.

    3. In those sorts of cases, particularly NEPA cases, standing is facilitated by the enactment of statutes that authorize suit and that create statutory rights, the violation of which may satisfy the injury requirement. Moreover, as even Scalia acknowledged in Lujan, the existence of such procedural rights reduce the burden of showing immediacy and redressability too. In this case, of course, there is no statute creating the sorts of procedural rights that could aid the plaintiffs, so they can’t avail themselves of these precedents.

  2. I, for one, look forward to having this principle applied to other taxes.

    Does your state have a sales tax? Does it exempt certain goods from taxation? Well, then, the taxation is unconstitutional because there’s no penalty for not paying the tax on the non-taxed goods. Does your state income tax have a 0% bracket? Out goes the state income tax. Does your state have a program that allows historic or economically-desirable projects to receive a temporary 0% property-tax rate? Well, then, out goes the property tax, too.

    I know what you’re thinking… They’ll have to raise the entire state budget by actually writing tickets to the approximately 99% of Americans who exceed the posted speed limits on the public roadways. But, if they’ve ever offered an amnesty on arrest to get people to pay their fines…

  3. Cue the n-dimensional pretzel vendors ready to explain all this away.

  4. Sometimes it takes a judge to do a member of Congress’ job.

    1. 2019 is off to a fine start when we are already down one person who might otherwise whinge on and on about “legislating from the bench”.

  5. Prof. Adler makes a powerful case against allowing standing. However I believe the rest of Judge O’Connor’s decision, which I have read, is absolutely right – IF one can believe the statements made by the ACA proponents when it was enacted. I am eager to see the intervenors go to the 5th Circuit and, if the standing hurdle is overcome, argue that their view of the ACA mandate and language was a Big Lie that the Court needs to reject. I am troubled that there seems to be no way, according to Prof. Adler, to get the constitutionality of the ACA before a Court, because no one is threatened by a non-mandate with a zero penalty.

    1. I would be troubled as well if the constitutionality of the ACA hadn’t already been before SCOTUS.

      1. The chicken and egg problem, then, is that the ACA was unconstitutional with the mandate, which got changed to tax with Roberts saving construction, and now the tax is zero.

        1. It’s turtles all the way down. The mandate needed a savings construction to turn it into a tax–because the mandate impermissibly regulated economic inactivity (the decision to not purchase insurance) beyond what the Commerce Clause allows. Ok, it’s a tax. But then Congress repeals the tax, meaning it can’t be a tax. But for the same reason that it isn’t a tax, it isn’t a mandate. If it’s not a mandate, it doesn’t need a savings construction turning it into a tax at all.

          1. I think you have it right (love the turtles analogy)

            “Perhaps this is how standing should work, … but that is not how decades of Supreme Court and Fifth Circuit precedent have understood the relevant inquiry.”

            Well, they got it wrong. Way past time to overturn the precedent.

            The nut is that it is NOT a matter of whether you have to pay a penalty or not, but whether the ENTIRE law is an unconstitutional intervention, since it’s prolific regulations impact every individual who does buy insurance. That IS an injury.

            1. By that standard the regulations in place prior to the ACA are also unconstitutional because everyone was impacted.

              1. And, of course, whatever the judge inflicts upon us AFTER the ACA is also unconstitutional.

                Oops.

              2. I do think the prior regulations were unconstitutional, but the issue here is merely the matter of standing.
                Anyone injured by any law should have standing, whether or not they can make the case that the law is unconstitutional is a different matter.

            2. “…but whether the ENTIRE law is an unconstitutional intervention…”

              I think the standing has to be tied to the alleged unconstitutional aspect of the law. Hypothetical: Person A challenges provision of Patriot Act that allows warrants to issue with a lower threshold than probable cause. Person A hasn’t been injured by that policy; no warrant issued against Person A under that provision. Rather, Person A was arrested under a different provision that required probable cause for a warrant to issue. Person A couldn’t use the unconstitutionality of one provision of the law to save themselves from the unconstitutional provision, unless the latter harms them.

              “…prolific regulations impact every individual who does buy insurance…”

              Yes but Congress is allowed to do that. No one has suggested that Congress can’t constitutionally, for e.g., regulate the price or terms of health insurance contracts under the commerce clause. The constitutional argument is that Congress can’t mandate the purchase of health insurance products as part of its commerce clause power.

          2. NToJ,

            Assuming you are correct, then it must follow that the five groups of people who have always been subject to a $0 “tax” have been in violation of the law (a legal mandate to carry insurance) from the get-go if they chose not to carry insurance. That strikes me as absurd.

            But for the same reason that it isn’t a tax, it isn’t a mandate. If it’s not a mandate, it doesn’t need a savings construction turning it into a tax at all.

            I don’t think that is quite right. Instead, for the same reason it isn’t a tax, it logically can’t be a mandate (to avoid the above absurdity). However as a matter of statutory interpretation, you still need a savings construction so the law is not read as a mandate – just a different construction from that used in NFIB. In particular, it should be construed as a choice to carry insurance or suffer no consequences at all. And, “Congress does not require an enumerated power to declare that Americans must either do X or else not do X and suffer no consequences.”

            1. The absurdity, if I read you right, derives from your blowing off the fact that the ACA actually does mandate that you buy the insurance.

              Literally, it states that, “(a) Requirement to maintain minimum essential coverage
              An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.

              THAT is the law, the legal mandate, which didn’t exist prior to the ACA being enacted. It hasn’t gone away just because the penalty for violating it has been reduced to zero. And it doesn’t give you a choice, it orders you to comply. “Shall”, not “may”.

              1. The absurdity, if I read you right, derives from your blowing off the fact that the ACA actually does mandate that you buy the insurance..

                The absurdity derives from the holding in NFIB: “if someone chooses to pay rather than obtain health insurance, they have fully complied with the law.”

              2. Brett, you keep repeating that, and it still isn’t true. Yes, part (a) reads as you quote. That is the first option. But then there is part (b), which gives an individual the option of paying the fee (or penalty or tax) and that individual would be in full compliance with the law, even though they do not have qualifying health insurance coverage.

              3. “THAT is the law, the legal mandate…”

                You’re wrong about this for reasons others have already pointed out. But what do you think is the consequence of you being right? SCOTUS would throw out (a) and keep the rest of the law. Since the mandate already lost all its teeth by Congress, there’s nothing SCOTUS can do to further weaken the mandate.

            2. “That strikes me as absurd.”

              Me too. I don’t understand your argument. I do not follow the “it must follow” part of what you are saying. In my view, the people excepted were never in violation of the law. The appropriate reading of the original law was that it was never a mandate for those people–hence them being treated as “exceptions”. It shouldn’t matter whether the law excepted them from the payment portion or excepted them from the mandate portion, the effect is the same and the judiciary. And I did not understand Sebelius to relate to the excepted classes, but maybe I’m wrong.

              “…you still need a savings construction so the law is not read as a mandate…”

              Sure, we’re saying the same thing. I don’t view the “savings construction” as being a matter of constitutional moment; it’s not a savings construction to construe a statute that carries no penalty as a non-mandate, that’s just ordinary rules of statutory construction. But even if the law were less clearly not a mandate, the judiciary would still be obligated to interpret it as a non-mandate. Whether that’s because of a savings construction or just an ordinary construction is of no moment, the result is thes ame.

          3. For what might already be the one millionth time this year, “the tax was not repealed.” The tax is set at $0.00. You are still required to purchase insurance, but there’s no consequence to not purchasing insurance. Besides bankruptcy, chronic untreated disease, and death, I mean.

    2. “I am troubled that there seems to be no way, according to Prof. Adler, to get the constitutionality of the ACA before a Court, because no one is threatened by a non-mandate with a zero penalty.”

      Well, if no one is threatened by a non-mandate with a zero penalty, in what sense is there a constitutional harm that needs to be corrected by the courts? If there are other provisions of the ACA that are unconstitutional and harming people, they can be challenged. But the mandate was critical to the Commerce Clause argument the first time around, and now there’s no mandate. But if there’s no mandate, how can there be a Commerce Clause (broccoli mandate) argument?

      1. Would you like a pretzel?

      2. ” the mandate was critical to the Commerce Clause argument the first time around, and now there’s no mandate. But if there’s no mandate, how can there be a Commerce Clause (broccoli mandate) argument”

        They didn’t repeal the mandate… they set the tax to zero. So, when, eventually, the D’s capture control of Congress again, and reset the tax back to, say, $1.50 or $10,000 or whatever, the judge’s decision is moot, and the entire ACA springs back to life again, just as it was last week.

        1. The worst parts of the ACA are still in place: The bar on charging for pre-existing conditions, the mandated free coverage of this and that. The parts of the ACA that turn private sector health insurance into an entitlement program run by insurance companies under legal threat.

          Remember, the mandate was included because it was understood that THOSE provisions would destroy the health insurance industry, if there wasn’t something forcing people to buy insurance even if it was a bad deal.

          All repealing the penalty did was convert the death spiral into a death power dive.

          1. There are several problems surrounding healthcare in a private market. One of them is that people who need healthcare often don’t have the opportunity to shop for what they need, thus defeating “the market”‘s magic powers to fix problems. Then, the people who need healthcare often have health problems which keep them from working, and earning enough money to pay for healthcare.

            So, the wise thing to do is to recognize that free-market capitalism is poorly suited to healthcare and look for another framework to apply it, OR simply write off anyone who gets sick, and any dependents they might have had. People who aren’t and have never been sick sometimes like the latter. Sure, those people might get sick and die, but I’m not one of them so that’s their problem.

            If you accept that healthcare is (and should be) treated differently from the rest of the broader economy, you reach different conclusions than if you blindly insist that free markets solve all problems, like someone who passed econ 101 but never moved on to second-year courses.

            1. “If you accept that healthcare is (and should be) treated differently from the rest of the broader economy…”

              It would be fairer to Brett’s position that healthcare is a finite resource and markets are generally more efficient at allocating a finite resource than central planning. I think he’s probably right. But the market does not allocate sufficient resources to keep my conscience clear, at least with respect to healthcare. So we have to centrally plan a solution that will probably cost more than a market solution that won’t ever materialize. Not unlike for national defense.

          2. Sounds like Brett is admitting he just wants another bite at the apple, procedures bedamned.

          3. “All repealing the penalty did was convert the death spiral into a death power dive.”

            Is this Republicans’ sales pitch for 2020? “Vote for us, we intentionally tanked the spiraling health insurance market so we could backdoor a political promise we couldn’t accomplish with all three branches of government!”

            At any rate, the “worst parts” of the ACA per you are also the most popular. For the last twenty years Republicans have been incapable of enacting unpopular but necessary laws or repealing popular but bad laws. So whenever they cut taxes they also increase spending. They don’t want a mandate necessary to fund the ACA, but they want to keep the worst parts of it because the people want them. The ACA is a train wreck but at least the Democrats had the stones to enact an unpopular mandate to try and get it to work.

            1. It WAS working, and that’s what scared the R’s.

              They tried the “slap your opponent’s name on it and wait for it to fail” approach, and… alas for them… the expected failure didn’t materialize, so the net effect was they’d slapped their opponent’s name on something the people liked. Oops.

              Then, they had enough votes to repeal it, but literally nothing better to offer. So they TALKED a lot about “repeal and replace”, knowing that Obama was going to keep scotching the repeal part and they’d never have to produce the “replace” part.

              Then Trump got elected, and talked about signing the repeal bill as soon as it got to him.
              Crud. Now they NEED the replace part, and haven’t got anything. Which led to them trying the repeal now and eventually replace option, which failed.

              So they went with “sabotage and run away” and then tried to reclaim the popular parts of the law they (very effectively) tied to Obama’s ankles.

    3. As a candidate Obama vociferously opposed the individual mandate along with most of the liberals. Obama only agreed to it because Gruber explained to him that the CBO exaggerated its impact with respect to enrollment numbers, and red state Democrats believed the individual mandate would appeal to their more conservative constituents. Just as Trump’s irresponsible travel ban rhetoric should be dismissed so should Obama’s rhetoric with respect to the individual mandate should be dismissed.

    4. We had all of these three-legged stool arguments.

      But there is not any huge conceptual difference between a bonus and a penalty. For most people, the ACA includes a bonus for signing up, namely, subsidies for health insurance. Such subsidies would tend to make buying health insurance an expected winner, assuming “ordinary” risk.

      The idea behind a penalty being necessary had to do with the adverse selection problem, noting that a few very sick people are behind a hugely disproportionate amount of health spending. So, the expected value of health insurance might still be negative for certain people (especially healthy young people) absent a penalty, absent much more generous subsidies.

      But here is the flaw with that argument. Most people don’t actually perform such expected value calculations, not even implicitly. The reason that people buy insurance often comes down to “peace of mind” and “one less thing to worry” about rather calculations like expected value. To put it another way, if gambling corporations can convince people to make “bad bets” because people think “gambling is fun” then so can insurance companies. However, there is another motive to buying insurance, that is being relieved of the cognitive burden of such expected value calculations altogether. It is completely rational too. Thinking about a topic, at least if you do it well, takes energy. That energy might be spent better on some other endeavor that is more enjoyable and more profitable to think about.

      1. The Exchange pools devolved too quickly into expensive Medicaid for those not subsidized for the penalty to have ever had a positive impact. I blame Republicans and their irresponsible rhetoric as to why the Exchanges have been suboptimal so the existence of the individual mandate is why the individual mandate failed to have a positive impact.

        Going forward Democrats should follow the path Republicans have tread with Medicare Part D?just pass important legislation and worry about paying for it later because taxes are always going to be unpopular but free stuff is generally popular!

      2. “The reason that people buy insurance often comes down to “peace of mind” and “one less thing to worry” about rather calculations like expected value.”

        That’s a pretty broad generalization.

        Why do people have car insurance? 1. The bank that fronted them to money to buy the thing demands that the car owner carry sufficient insurance to make good on the loan if it is damaged before the loan is fully paid. 2. The bureaucrats down at DMV ask for proof of insurance when it’s time to register or re-register the car or re-license the driver, and 3. The cop that pulled them over asked for license, registration, and proof of insurance, and when they didn’t have that last one the traffic court judge told them to go get some.

        Why do people have health insurance? 1. The union demanded it. 2. Declaring bankruptcy to get out of your medical debts only works once, twice tops.

        1. “That’s a pretty broad generalization.”

          Your counterexamples are about third-parties “incentivizing” people to purchase insurance. But such heavy-handed incentives is not necessary when people buy insurance voluntarily.

          My generalization is that, when people voluntarily pay for insurance, it is often motivated by managing their psychological condition rather than expected value calculations. For, example, people buy insurance for “peace of mind” and so that they have “one less thing to worry about” more than they do because they have done some sort of financial calculation involving expected returns or present value of future streams of income calculations.

          If you think about it, the argument that the whole system will collapse without an individual mandate is based on the idea that “rational, profit-maximizing” healthy individuals will decide that buying health insurance, even heavily subsidized health insurance, is just not optimal. But, on the whole, I would say that people are less “calculating” than that. By less calculating, I do not mean that they make decisions less based on their self-interest, but that literally, they calculate less. Optimization problems take a lot of mental energy to solve, and if you have the ability to solve such problems well, it will often be that there are better uses of your time anyway.

          That said, once a year, during open enrollment, people are basically forced to become calculators. Many people, I would bet, don’t do a great job.

          1. “My generalization is that, when people voluntarily pay for insurance”

            The pool of people who voluntarily pay for insurance is rather small. When push comes to shove, insurance is the first thing over the side of the boat, unless something nails it down (and sometimes even then.)

            People don’t have liability insurance on their houses because it’s the right thing to do. They have liability insurance on their houses because without it, they can’t get a mortgage. The don’t have liability insurance on their cars because they rest better at night knowing that if they cause an accident, at least the poor victim can get their medical bills paid. They have insurance on their cars because without it, they can’t get license plates.

            Health insurance is even further outside… most people don’t buy health insurance. They get it from work, so the business is the customer, not the individuals insured.

            Now, if you limit your inquiry to the range of households where all the necessities are covered by current income, then looking into the mindset of buyers is reasonable. But America includes households where people are choosing between insurance and electricity, or insurance and food. In those households, what is the logic for keeping insurance? Yes, it’s better in the long run to have insurance when you need it… but if you can’t survive the short-term, the long-term isn’t even hypothetical.

            1. “The pool of people who voluntarily pay for insurance is rather small.”

              Depends what you mean by small. Pre-ACA about 15% of the population was uninsured. Even if you exclude publicly covered (Medicaid/Medicare/etc.) people, the majority of Americans were voluntarily purchasing health insurance before the ACA was enacted.

              1. “the majority of Americans were voluntarily purchasing health insurance”

                The majority of Americans aren’t voluntarily purchasing health insurance now. Their employers are, for the most part involuntarily buying it. Originally, unions demanded it, then non-union shops had to follow suit to get good candidates, and finally, ACA started requiring employers to do so.

                When I say the pool of people who voluntarily pay for insurance is small, I mean that it is small.

          2. “Rational, profit-maximizing” is a subset of “rational.”

            There is nothing irrational about about buying insurance even if you are not required to. Risk aversion is perfectly sensible (in some situations), not some psychological aberration. If you have a mortgage your lender, like mine, almost certainly requires you to carry homeowners insurance. Would you go without it if they didn’t? I wouldn’t.

            Rational economic behavior is about preferences, not money.

            1. “There is nothing irrational about about buying insurance even if you are not required to.”

              Depends. Can you afford BOTH gas AND car insurance? Both food AND car insurance? If the answer to either question is “no”, you are forced to make a choice. Choosing not to eat for six months so you can have car insurance is… irrational, yeah. That’s a word for it.

              The pool of pure, 100% voluntary insurance is a very small one. There’s catastrophic illness insurance, and life insurance, and, um…

              Do I pay my car insurance bill? Yeah. I can afford it. But I didn’t until I was 25. Do I carry a full “replacement value” policy on my almost-20-year-old truck? No, I don’t.

  6. Quite frankly this is the last gasp effort at Obamacare repeal because Trump’s reforms have strengthened the Exchanges and Medicaid expansion has proven to be a great issue for Democrats.

    I think it is pretty obvious that Trump has been able to stabilize the ACA when Obama wasn’t is because Josh Kushner is giving Trump very good advice. So Kushner has a real world perspective whereas all of Obama’s health insurance advisors were from the academic world. So Obamacare’s success is actually proof that sometimes business experience trumps political experience. pun intended 😉

  7. IMHO, denial of “standing” is nothing but judicial cowardice, especially when in reference to whether a power exerted by Congress conforms to those granted by Article 1, Section 8.
    The Constitution is a check on the power of the central government, and any exertion of a power should have to be defended by that body, not have to wait for someone to have “standing” to challenge it.
    Since the SCOTUS has set itself up as the arbiter of Constitutionality, it should have to give its approval of every piece of legislation that emerges from DC before it is imposed on the citizens.

    1. “Since the SCOTUS has set itself up as the arbiter of Constitutionality”

      The idea that the Supreme Court is the arbiter of constitutionality was actually controversial. Marbury v. Madison was not an obvious decision, and much of the analysis and logic was pretty strained to actually achieve the result in question. John Marshall setup the whole thing so that he could declare a statute unconstitutional, but there was no chance of defiance, since he gave the government, rather than Marbury, the “win.”

      The next time a federal statute was declared unconstitutional, it was Dred Scott. First of all, it took more than 50 years for there to be a second case where a federal statute was declared unconstitutional. So, that shows how the Supreme Court’s role with respect to deciding constitutionality with respect to the other branches is not actually obvious. Second of all, the outcome of this case puts the wisdom of viewing the Supreme Court as the final arbiter into question. As in Dred Scott, bad Supreme Court decisions can cause the whole system to go off the rails. Rather than resoling conflicts, Supreme Court decisions can create them or exacerbate them.

      1. (cont.)

        “it should have to give its approval of every piece of legislation that emerges from DC before it is imposed on the citizens.”

        This might make sense if the system had been designed to require the Supreme Court’s blessing. But, as explained above, that is not how the system was designed, or at least, so it seems. The Supreme Court has no role in pre-approving legislation; its constitutional authority is to decide “cases and controversies.” I should point out that even this point is far from entirely obvious. Thomas Jefferson, on behalf of the George Washington administration, submitted questions to the Supreme Court on the proper meaning of a treaty with France, which the court declined to answer on the ground that there was no case or controversy.

        Your point does point to a puzzle. If the Supreme Court is the final decider of what legislation is constitutional, wouldn’t it make more sense for them to pre-approve legislation rather than for the whole process to take years to see how their “input” and often ideologically-motivated “opinions” about Constitutionality will play out? And doesn’t this whole arbitrary system of severability analysis, with its unpredictable outcomes, suggest that the judiciary’s view of itself as having an elevated and final role above the other branches might be a source of instability and embarrassment, just as it was in Dred Scott?

    2. “IMHO, denial of “standing” is nothing but judicial cowardice…”

      It’s judicial deference to a coordinate branch, which is itself constitutionally mandated.

      “…and any exertion of a power should have to be defended by that body, not have to wait for someone to have “standing” to challenge it.”

      There’s no need for you to wait. The Constitution gave you non-judicial remedies. Congress enacted the law you’re complaining about.

      “…it should have to give its approval of every piece of legislation that emerges from DC…”

      That was one proposal floated at the time of ratification, but it was abandoned in favor of Article III’s cases or controversies limitation. You can read more about that here.

  8. The comments on this series of posts by Adler are really remarkable.

    Alas, poor Pre-WaPo-VC! I knew him, Horatio.

  9. However Congress controls the “tax” of the mandate; which means that a future Congress could once again change the “tax” of the mandate. Hence people do have standing against a future harm. Either the mandate is a tax or it is not a tax.

    1. In the future, Congress could do anything. The fact that a hypothetical future Congress might do something unconstitutional doesn’t give you the right to challenge laws as they are right now.

      In the future, the 16th amendment might be repealed by amendment. Therefore, I shouldn’t have to pay income tax now.

  10. I got an argument in favor of standing.

    Asserting that someone is breaking has broken the law is defamation per se. Why? Not because the specific crime is odious ? indeed, that is what per se means in this context: the court does not inquire what public response to the accusation actually is; all that matter is the nature of the accusation. Just being called a law-breaker is considered an attack on one’s reputation.

    The defanged ACA still has one tooth left: if you fail to get compliant health-care, it calls you a law-breaker. You have suffered defamation but, unless you have standing, you have no recourse in law.

    Imagine the Texas legislature passed a law saying in relevant part “Jonathan H. Adler is a criminal.” All of Dr. Adler’s friends, colleagues, and family read about the law and correspondingly lower their opinion of him. It’s obviously a bill of attainder. Would he have no standing to sue, on the grounds that the law merely defames him, and does not “punish” him?

    1. “The defanged ACA still has one tooth left: if you fail to get compliant health-care, it calls you a law-breaker. You have suffered defamation but, unless you have standing, you have no recourse in law.”

      “It” calls you a law-breaker? “It” has no mouth to call anyone anything, and “It” has no motor neurons to take any action at all.

      If you fail to obtain requisite insurance AND fail to pay the tax of $0, you are a law-breaker. If you don’t pay your income taxes of $0, or your property taxes of $0, or your sales taxes of $0… so what?

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