Affordable Care Act

Justice Department Revises Its Position in Texas ACA Case

The Trump Administration has decided that the Affordable Care Act should be voided in its entirety.

|The Volokh Conspiracy |

Last year, the Department of Justice turned heads when it refused to defend the constitutionality of portions of the Affordable Care Act and argued that the courts should invalidate key portions of the law. In a brief filed in Texas v. United States, DOJ accepted the argument made by several states that the so-called "individual mandate" was rendered unconstitutional when Congress zeroed out the tax penalty used to enforce it. More surprisingly, DOJ argued that the mandate's constitutional infirmity also required invalidation of the ACA's insurance market reforms—guaranteed issue and community rating. In a ruling last year, a federal district court agreed that the penalty-less mandate is unconstitutional and that (as a consequence) the entire ACA must fall.

Under questioning at his confirmation hearing, Attorney General William Barr pledged to reconsider the DOJ's position—and reconsider the federal government's position AG Barr has certainly done. According to a letter filed today with the U.S. Court of Appeals for the Fifth Circuit, DOJ now believes that the district court's judgment should be upheld. In other words, the Department of Justice has decided not to defend any portion of the ACA.

The Justice Department's change in position is astounding. It was remarkable enough that DOJ failed to question the states' standing to challenge an unenforced and unenforceable mandate, and even more remarkable that the Department failed to defend a readily defensible federal law. It is more remarkable still that the DOJ is abandoning its position—and the position on severability advanced by the Obama Administration—in favor of a highly strained and implausible approach to severability with little grounding or precedent.

I was among those who cheered the selection of William Barr as Attorney General and hoped his confirmation would herald the elevation of law over politics within the Justice Department. I am still hopeful, but this latest filing is not a good sign.

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  1. The Obamacare penalty has become as imaginary as an alien species in Star Trek.

    Carry on, Klingons.

    1. Pretty sure they have universal health care in the Federation.

      1. They have magical production facilities and computers that do 99.9% of the medical work and everything is cured except the most bizarre and rare things (and the cold).

        How do you get to that state the most quickly from here? Huge investments by both the private sector and government.

        Stripping the profit out murders on supra-WWII levels by delaying it.

  2. There’s no justification for this.

    Under the weak N&P clause version of the Constitution that was adopted in NFIB, there will be situations where Congress has authority to enact provisions A and B (here guaranteed issue and community rating), which, however, will not work well (or will affirmatively cause mischief) unless provision C (here the individual mandate) — which only the states can enact, is also enacted. Under that version, either Congress lacks authority to enact A and B (even though, as here, 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 a stronger N&P clause). 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 depending on their individual insurance markets and/or need for tax revenue from a mandate.

    1. Severance should always be disfavored, and should be simply off the table for any law which, like the ACA, lacks a severability clause. There’s no getting around the fact that, when the judiciary “severs” part of a law, it has created a law the legislature never enacted, and the President never signed.

      Severance, then, is an exercise by the judiciary of both legislative AND executive powers. It is illegitimate.

      1. That’s not a bad comment.

        I hadn’t thought about severance too much.

        I wonder what the historical background is (e.g. are there SC cases, etc.).

      2. Your comment would make more sense if the ACA was a statute that was enacted once and then left alone, with the penalty later being held unconstitutional. But here, Congress amended the statute to remove the penalty, while otherwise leaving the statute in place, thus making it clear that Congress did not consider the penalty to be essential to the statute as a whole — if it did, it would have rescinded, not amended, the statute.

        1. No, you are eliding the mandate and the penalty for disobeying the mandate. Roberts ruled that the mandate was constitutional under the taxing power, because it was enforced with a “tax” raising penalty. The mandate and the penalty for disobeying it are different things. And the now unconstitutional mandate remains.

          Now there is perhaps a cuter argument that the mandate is not severable from the penalty for disobeying it, and that therefore Congress (in 2017) intended to repeal the mandate (even though it just zeroed out the penalty and left the mandate intact.) And Congress having deliberately repealed the mandate (by using the non severable penalty “ten pin bowling” approach) must be presumed to have departed from its original findings that the mandate was not severable from the rest of the law.

          The weakness of this cutity is that it’s not obvious why the game of ten pin bowling should end at the mandate. If you can deduce that by killing the penalty, Congress (2017) intended to kill the mandate, why wouldn’t you go on to deduce that by killing the mandate Congress (2017) intended to kill the lot ?

          1. you are eliding the mandate and the penalty for disobeying the mandate

            No I’m not. Congress set the penalty to zero, thus leaving the mandate without a constitutional basis, since there was no associated collection of a tax. And yet it still left the remainder of the statute in place, rather than repealing it, which is a pretty strong sign that the mandate is not essential to the statute as a whole, and is thus severable. (And, of course, the ACA contains a lot of provisions wholly unrelated to the mandate, including things like amendments to the public disclosure provisions of the False Claims Act.)

            If you can deduce that by killing the penalty, Congress (2017) intended to kill the mandate, why wouldn’t you go on to deduce that by killing the mandate Congress (2017) intended to kill the lot?

            Simple, because it amended the penalty provision without repealing the statute. There may have been individual members of Congress who hoped the whole thing would be stricken because the mandate was unconstitutional, but Congress as an entity acts by passing statutes. If Congress wants to kill a law it can do it, but if anything is “cute,” it is the jiu-jitsu argument that it actually meant to repeal the entire statute by implication.

            1. Congress set the penalty to zero, thus leaving the mandate without a constitutional basis, since there was no associated collection of a tax

              Just so. They left the mandate without a constitutional basis (if y’all accept Roberts’ view, which we will for the sake of argument.) That is not the same as repealing the mandate. Thus if you wish to infer what Congress intended by reviewing Congress’s formal action you reach the conclusion that Congress (2017) intended to leave in place an unconstitutional mandate, that it had previously found was not severable.

              And so, contra Adler, if the matter (ie inferring the intent of the 2017 Congress) is to be decided purely by reference to what Congress actually did, then the only conclusion is that they intended to leave an unconstittuional mandate attached to the rest of the ACA, with an unchanged finding of non severablity.

              I quite accept however that it is perfectly possible to view the thing non formalistically, and thus perhaps reach a different conclusion. My point is that Adler’s argument is weak, and his hissy fit unworthy.

  3. Maybe Adler also disdained the California Attorney General when that office refused to defend Prop 8.

  4. Even if one considers the individual mandate to be unconstitutional and the community rating and guaranteed issue provisions to be inseverable, it is a huge mistake for DOJ to concede that the rest of the ACA is unconstitutional. There are so many other omelets that would have to be unscrambled. In many cases, I don’t even think it could be done. For example, while I have great respect for the professionals at CMS, I don’t think even they will be able to figure out what rates and policies would be applicable going forward in Medicare under the assumption that the many Medicare provisions enacted by the ACA and long since implemented now need to be walked back. And if there need to be retrospective true-ups, it’s even less doable. And Medicare is just one of many ongoing programs that have been shaped by implementation of the ACA.

    1. They can be reshaped after its exit just as they were reshaped by its entry. To think otherwise is to lack faith in humanity.

    2. ACA was a constitutional travesty.

    3. Did the DOJ really say that “the rest of the ACA is _unconstitutional_” (could never be passed by Congress), or just that Congress would need to pass it again without the unconstitutional mandate?

      1. One of the major points of the ACA was that it was explicitly written without a severability clause. The express intent of that was that if any part was declared unconstitutional, the entire law would fall.

        1. I do not think that was at any time anything like the stated intent of Congress or the drafters.

          1. Express intent or not, Congress enacts text, not intent, and there wasn’t any severability clause.

            So the law should stand or fall as a whole.

            And what it should do is fall. The ACA was, from the very beginning, a constitutional abomination.

            1. Dunno if you should be abusing Ben of Houston’s goalposts like that.

              Severablity by construction is quite common – to suddenly argue this cannon should be ignored is some pretty special pleading.

              1. I’m not suddenly arguing this cannon should be ignored. I’ve always taken the position that it was an illegitimate cannon, and should be ignored, for the reasons I gave above, and additional prudential reasons.

                1. Fair enough – not special pleading, just extremism beyond realisticness.
                  That’s not prudential; that’s delegitimizing all but your prefered jurisprudence.

                  What’s prudential is realizing that for our government work together as an institution, hidebound formalism cannot be the order of the hour.

                  1. re: “hidebound formalism cannot be the order of the hour”

                    Why not?

                    More to the point, why do you assume that “our government work[ing] together” is an unmitigated good? Our Constitution was explicitly written on a principle of separation of powers. In other words, the Founders deliberately wanted the parts of government to work against each other because doing so would maximize the chances that the rest of us would retain individual liberties.

                    I see nothing wrong with a court saying ‘you got this wrong, do it over’ instead of ‘you got this wrong, let me fix it for you.’ The former could be called “hidebound formalism” but it’s going to be a lot more protective of liberty.

                    1. Because the English language is a crap way to communicate precisely.

                      Being as we are all supposed to be working together, if you want to come to a true meeting of the minds re: what the legislature is trying to get done, sticking to rigid rules of formalism just doesn’t work.

                      Seperation of powers is about tension; it is not about bad faith screwing around and the other branches bedamned. Loyal adversareis, not by hook or by crook.

                      The court punishing those under the law because the lawgiver blundered is not a way to obtain a well run society, libertarian or no.

                    2. a true meeting of the minds re: what the legislature is trying to get done

                      Unfortunately we’ve run the experiment and it turns out that in practice it is impossible to distinguish “what the legislature is trying to get done” from “what I think the legislature ought to be trying to get done” without “sticking to rigid rules of formalism”……

                      ….which as you say still doesn’t work. It just fails less comprehensively than the “we’re al good people, let’s intuit it from those penumbral zones.”

                    3. Not even Scalia was a full-on formalist. Not even Thomas. You’re unmoored from reality.

                    4. I don’t believe so. You may have the wrong impression because you haven’t read down to the end of my list of formal rules. Even

                      – consider what Congress intended to achieve and
                      – consider what a good policy would be

                      appear on my list of formal rules.

                      It’s just that my list is hierarchical and you first have to get through all the rules about what the text actually meant when it was written, You only get to the later mushy rules if the tighter early rules have failed to answer the question.

                      So the point of formal rules is not that the actual list of rules is different from the list that you mushy rule fellows have. What’s different is that I have an algorthm. This rule first, if it fails, then that rule second. Whereas you guys have no algorithm – it’s “Hmm, what rule gets priority today ? ”

                      And as we have discussed before, even angels would struggle to avoid selecting the rule that gives them the answer they like. And men, even, or perhaps especially judges, are not angels.

                    5. The problem, though, is that the later mushy rules give you so much license to replace text with personal preferences, that they create an incentive to have the early rules fail. That’s always been the problem with, “If it’s ambiguous, we can just try for good policy.”: It drives you to see ambiguity where somebody who didn’t think that way would have seen clarity.

                    6. The problem, though, is that the later mushy rules give you so much license to replace text with personal preferences, that they create an incentive to have the early rules fail.

                      Perfectly true. “Identifying Imaginary Ambiguity” is taught in Judging 101, of course. But if you stack up a pile of textual hurdles before the judge is allowed to get to “OK, make it up as you like” then it does at least present the judge with an intellectual challenge of sorts. If you don’t even bother with the textual hurdles, then even a complete doofus can do it.

                      Moreover, you can array other rules between “read the damn law” and “make it up as you choose.” Like for example – if it’s a criminal case, you go straight to “Not Gulity” if the text is not disposive. Ditto, mutatis mutandis, for tax.

                    7. Like we’re supposed to pretend Scalia was some judicial icon? He was better most of the time than the outright living constitutionalists, but there’s a reason he called himself a “faint hearted” originalist: He wasn’t TRYING to be a consistent originalist.

                      I’ve pointed out before that you can’t expect Presidents to nominate, or the Senate to confirm, full-on formalists or originalists. It’s contrary to their self-interest as power seeking individuals and organizations. That doesn’t mean full-on formalism is impossible, just that no such animal would be expected to end up on the Court under present circumstances.

                      We can still try to push things further in that direction, regardless, even if we know we can’t be completely successful without some extreme constitutional reforms.

                    8. Funny. What you call “bad faith screwing around” I call a proper application of tension.

                      And the court punishing those under the law because the lawgiver blundered is not only allowed but routine. In fact, it has to be routine if you are not to eventually replace the elected lawgiver with an unelected mandarin who can unilaterally decide if and when the lawgiver blundered (and who will inevitably abuse that discretion to become the new de facto lawgiver).

          2. I humbly disagree. The intent of Congress (no severability clause) was to have enough “good” items in the bill so that instead of severing the “bad” items, it would be left intact.

            1. There is nothing in the Congressinal record indicating that. And there would be.

              1. Are you pretending Congress didint know about severability?

        2. I don’t think that’s what “express” means.

        3. One of the major points of the ACA was that it was explicitly written without a severability clause. The express intent of that was that if any part was declared unconstitutional, the entire law would fall.

          When was that rule made?

        4. But in zeroing out the penalty while keeping the rest of the law, Congress clearly said that the mandate, at least, is severable, whatever the severability of the other provisions may be.

  5. The ACA itself was a major gutting of the rule of law in the US, and Roberts’ penaltax ruling continued the trend. I’ll shed no tears for this next step in gutting the rule of law, even if I do shed some tears for gutting the rule of law itself. To go all Godwin, I shed no tears for Qaddafi’s nasty death even if it did gut the US’s reputation among nuclear dictators, and I would have shed no tears for the Nuremberg defendants being tried by those who committed their own war crimes.

  6. Apparently, the DOJ has advanced a position/legal argument on severability that the writers on this blog happen to disagree with, strongly. So, obviously the DOJ is not simply wrong, it is elevating politics over law. I mean, how could anyone advance a contrary view? This kind of silly hyperbole is tiresome.

    1. Apparently, the lawyers here have legal arguments for why the DOJ’s position is incredulous, whereas your complaint is built on a foundation of tears.

      You’re welcome to FO and go somewhere else if you find the writing objectionable.

      1. Incredulity is an emotion, not an argument.

      2. You mean “incredible.”

        Adler has run his arguments before, and commenters have pushed back on them, with legal counter arguments. The main problem with Adler’s line is that :

        (a) it purports to be formalistic – ie we don’t need to puzzle over whether Congress, this time round, intended to change its original intention of non severability : because Congress by its action in eliminating the mandate without eliminating the rest, has shown its intent explicitly; it intended to lose the mandate and keep the rest

        (b) but it is not in fact formalistic – it glides over the fact that what Congress actually did – formally – this time round was change a tax rate, and leave the mandate formally in place along with the rest of the law.

        Consequently, analysed formally, as Adler purports to want, what Congress formally did was to leave the whole structure in place, with no change to its non severability conclusion. The mandate still exists, but is now unconstitutional (because it no longer quaifies for Roberts’ tax get out of jail card.) And that consequently the whole structure must fall.

        Of course you could, contra Adler, analyse it in “common sense” or “essential” terms and say that zeroing out the tax was “essentially” the same as eliminating the mandate. That seems to me to be an argument likely to win higher up (but what do I know.)

        But for today, Adler whining about bad faith by Barr, when Adler’s own argument is incoherent, is a bit rich.

        1. it purports to be formalistic – ie we don’t need to puzzle over whether Congress, this time round, intended to change its original intention of non severability

          What “original intention of non severability”? Did you just hope to slip that one by without people noticing?

          1. David,
            Are you saying that Congress intended to include a severability clause but forgot? Congress intentionally left it without a severability clause because they were relying on the “good” items in the bill to protect it, including the “bad” items. IOW it was a political intent to make it non-severable and use the “good” as a political club whenever someone wanted to remove the “bad” because it was non-severable.

            1. Yes, given the history of the ACA it is very likely that Congress forgot. Your imputation of intent is not nearly as plausible, especially given the later law they passed that didn’t repeal the ACA but that you’d have to assume was secretly repealing the ACA.

              1. Could a future Congress change the definition of murder in a bill to say… the action of tickling without the other federal consequences of murder being deemed no longer sufficient? That is essentially what you are arguing.

          2. Nieporent : What “original intention of non severability”?

            I confess I am relying on the opnios of those who are more learned than myself in these matters (not a high bar.)

            Judge O’Connor : 32. In the Tax Cuts and Jobs Act of 2017, Congress did not amend or repeal the ACA’s legislative findings that the individual mandate is essential to the operation of the ACA

            Prof Ader : The Justice Department tries to get around this problem by pointing to the Congressional findings enacted as part of the ACA in 2010. This is a cute move, as it enables Justice Department attorneys to claim they are simply adopting the legal position of the prior administration, but it doesn’t work either. Findings are just that ? findings. They are not binding operative provisions of federal law. They may be evidence of legislative purpose or intent, but they do not have independent legal force. They are not law.

            1. Intent is not law, but neither is assuming nonseverablility. That’s why it’s called statutory interpretation.

              1. Intent is not law

                Sure. As far as I’m concerned we should run screamig from “intent.” But I am advised by Prof Adler in his brief that :

                “The cornerstone of severability doctrine is congressional intent.”

                1. Which is why it is a question of legal moment.

                  As opposed to what you highligted above, which is about out-of-context trixiness.

                  We may not disagree here…

              2. Is this like proving a negative? The law doesnt have a severability clause. This it is interpreted as whole. You are arguing this interpretation is wrong because you cant orive they dodnt intend for severability. This is astoundingly stupid.

      3. Not very persuasive Cavanaugh. Have you ever actually won an argument?

        1. Many, and this is not an argument.

          It’s an objectively true statement that if you dislike the writing on this blog so much, that you should go somewhere else more suited to your taste.

          4chan perhaps.

    2. I mean, how could anyone advance a contrary view?

      Really?? That’s your point??

      There are endless examples in VC comments of right-wing commenters absolutely refusing to accept the anyone could disagree with them in good faith, and you’re criticizing Adler for it?

      1. Sure, but we mere commeters are the kids at the back of the class. Adler’s supposed to be a grown up, a teacher.

  7. Funny liberals seemed to have no problem when the federal government under Obama and sympathetic state governments refused to appeal or fight rulings that struck down DOMA or found marriage laws unconstitutional because they didn’t allow gay marriage. That was, at least what they said then, just officials following their oath to uphold the constitution.

    Now they cry foul when an official does the same, just in a political vein they don’t agree with. So what is it liberals?

    1. This. ^^^^^^^^

      1. Republicans should continue promoting bigotry while Democrats attempt to improve healthcare (against conservative efforts).

        This will be the brilliant one-two punch that finally makes clingers consequential players in the American culture war!

        1. Does it hurt being the ignorant RAK?
          Or just normal for a Progressive?

    2. Yeah, that was a bad move.

      So is this.

      1. From a practical perspective, the bigots have lost on treatment of gays and there will be no conservative comeback on that one. The voices for backwardness also will lose on health care ? universal health care seems inevitable, and the clingers know it.

        Victory in the culture war has consequences. So does defeat.

        1. Gay rights increases freedom of The People by decreasing the power of government without amendment.

          The ACA increases the power of government without amendment.

          Those are two opposite directions for chin-rubbing living constitutionalism. One is in the direction of freedom, so is less suspicious and less dangerous.

          1. Are you making a purposivist constitutional argument?

        2. What about democrat anti-Semites? How are they doing in the culture war?

      2. >Yeah, that was a bad move.
        >So is this.

        It’s the exact opposite; they doing the other side a favor.

        The real risk is that the attorneys will sandbag cases with which they don’t agree politically. The formal refusal-to-defend lets the court appoint a proper advocate.

    3. Giving marriage licenses to sodomites is more important than the rule of law or the Constitution.

  8. I was among those who cheered the selection of William Barr as Attorney General and hoped his confirmation would herald the elevation of law over politics within the Justice Department.

    You assumed Trump wouldn’t appoint a tuches-lekker? Why would you think that? And why would you ignore that weird “the President is untouchable” memo Barr wrote, which probably is what got him the job to begin with.

    1. I’d rather have a tuches-lekker than a gay man who shoots off inside a tuchis, like most liberals.

    2. Never heard of “tuches-lekker” but like all Yiddish, its not a complement.

      Your comment is #7 on the google search for tuches-lekker.

    3. You assumed Trump wouldn’t appoint a tuches-lekker?

      It’s a fair assumption. So far his success record in appointing tuches-lekkers is absolutely woeful.

      1. Seen any videos of cabinet meetings?

    4. You’re really really dumb a lot of the time bernard. Barr didnt say he was untouchable. He said the proper means was impeachment per the constitution. That document you’ve never read.

      1. To hell with you, Jesse. You’re a tiresome Foxbot moron whose opinions are worthless.

  9. I agree that the Justice Department should defend the ACA. As has been stated in other posts to this blog, the Executive Branch should execute laws.

    However, this failure to defend the law has all too many precedents. The Obama administration declined to defend some laws (Defense of Marriage if I remember correctly). In California every state official famously declined to defend the anti-gay marriage constitutional amendment, at one point it looked like the courts were also going to prohibit any third party group from defending on appeal either.

    Attorneys are hired to argue a case regardless of their personal views (or not take the case in the first place). The Attorney General and Justice Department have the job of enforcing and defending properly enacted laws. Unfortunately, politics almost always wins out over principle.

    1. If an attorney genuinely feels that a law is unconstitutional, it is against their oath to defend it. In the prosecutor’s side, if the prosecutor feels a defendant is innocent, they are required to drop charges.

      This isn’t a defense attorney. They cannot simply decline a case. They can, however, concede that their opposition is correct.

      1. “feel” has nothing to do with it

        If a government attorney can’t defend a law, he or she should recuse or resign and let another do it.

        1. But if the head of the executive branch decides a law is indefensible, it would be legal insubordination for any of the attorneys in his employ to defend it anyway.

          Perhaps Congress should designate somebody to defend its laws in cases where where the executive chooses not to?

          1. I believe Sally Yates took a similar position. Though as it turned out her legal analysis was faulty.

            1. No, I think Sally Yates took the position that she was entitled to keep defending the prior administration’s position after a change of administration.

              Her real problem was that she didn’t just personally decline to defend the President’s position in the matter, she also directed everyone below her to refuse, too, regardless of their own opinion about whether the EO was defensible.

          2. >Perhaps Congress should designate somebody to defend its laws in cases where where the executive chooses not to?

            Isn’t that exactly what happened here? They signaled to the court to appoint a proper advocate on the other side.

            Remember, the alternative is to sandbag the defense.

          3. “Perhaps Congress should designate somebody to defend its laws in cases where where the executive chooses not to?”

            “The executive power shall be vested in a President of the United States of America.”

            Litigation on behalf of the government is an executive power.

            1. Carefull, Bob – you’re blundering into a faithfully executed problem.

            2. His oath is to defend the constitution, not laws.

              1. But his constitutional duties require him to “take care that the Laws be faithfully executed”

                So the reason that the President relies on when he declines to defend a law matters. If he (genuinely) thinks it’s unconstitutional then it’s not a Law, so he doesn’t have to defend it.
                Likewise if he thinks the law is constitutional, and lawfully requires the government to do X, but a previous administration has previously argued tat it requires the government to do Y, then he’s perfectly entitled to run with the X argument.

                But if he accepts the law is constittuional, and that it requires the government to do X, then he can’t do Y instead just because he thinks that’s better policy.

      2. In many ways this is analagous to a defense attorney. And defense attorneys often defend people they think are guilty. An attorney’s job is to argue a particular side in a case, not necessarily agree with the argument.

        Obamacare has been litigated enough to make it clear the law is not unambiguously unconstitutional. We hear enough complaints (largely be conservatives) about courts legislating from the bench. Yet in this case there’s apparently no problem “legislating from the bench”.

        While confirms my frequent statement — judicial activism, legislating from the bench, judicial overreach, etc. really mean “I (personally) don’t agree with the result”. A court upholding the constitution, exercising judicial restraint, etc. means “I agree with the result”.

        Do we really want to live in a society where each new President stops enforcing any law he opposes and start enforcing the laws which his predecessor had been ignoring?

    2. While there’s some appeal to this simple approach, it flies in the face of all the principles of prosecutorial discretion. If the police and prosecutors have the power to not charge you for a crime just because, then they clearly should have a parallel discretion to defend or not defend a law.

  10. Officials are sworn to uphold the Constitution, not laws. If they feel a law is unconstitutional, and that is the argument being made by the states in this suit, then they would be in violation of their oath to defend the law.

    The argument that the entirety of the ACA was unconstitutional from the gitgo is very strong. From stories coming out recently, Justice Roberts was the one who played politics with the law, trying to get a consensus rather than ruling on Constitutional merits.

    And the argument was all along no part of the law is severable. It stands or falls as a whole. So it looks like it’s going to fall. If Congress wants to resurrect any pieces of it- Congress can. Looks like the house is going to spend the next two years investigating the President, though.

  11. As a previous Great One put it, “L’etat c’est moi.”

    President Trump wanted an Attorney General who would better reflect this proposition and act more as his personal counsel.

    And why shouldn’t he act instrumentally, simply argue for Mr. Trump’s policy interests.

    For half a century the Supreme Court has taken the position that if we feel really, really strongly about something, the Constitution must somehow say it.

    Why shouldn’t the other branches of government follow its lead on this point? It’s just as clear, just as reasonable, that the constitution’s unwritten penumbras and emanations prohibit the Affordable Care Act as it was that they prohibit, say, abortion laws.

    If the Supreme Court decides matters based on its own judgment, why in the world shouldn’t the President decide them on his?

  12. Prof. Adler expresses surprise after observing that William Barr, the kind of conservative who enthusiastically supports and is willing to work for Donald Trump, continues to operate as a reliably partisan right-wing hack. Naive, but a sign of hope that Prof. Adler is not lost.

    1. Do you prefer authoritarian democrat socialist left wing hacks? What about democrat anti-Semites?

  13. What is most interesting here will be the impact to the 2020 election should this effort succeed. The Republican mantra has been repeal and replace. Yet when they gained the power to do this they failed for lack of a plan. The ACA was a market based approach to delivering more health care. The mandate was originally proposed by conservative think tanks and implemented by a Republican governor. Abandoning all this to pull down the ACA still leaves the no plan in place for replacement. At election, this open the door wider for a national program the “Medicare for All”. Do the Republicans really want health care as an issue in 2020? It did not help them in 2018.

    1. The effect on the 2020 election will be modest, because

      (a) Judge O’Connor will be reversed on appeal so no actual consequences will arise
      (b) but Trump will be able to assure hardcore anti Obamacare folk that he’s a good guy

      So a political nothingburger.

  14. 2 things, the President and the Attorney general both take an oath to preserve and protect the constitution. And NFIB clearly ruled an individual mandate was unconstitutional, other than as a tax. It’s not a stretch to say that they believe it violates their oath to defend a law that is unconstitutional. It’s a dereliction of duty and a misreading of the constitution to say that the president and his attorney general should just defer to the courts on any constitutional question.

    1. You’re all over the map on this, appealing to the authority of NFIB and then saying that the real issue is the conscience of the President and(?) his AG.

      It’s been longstanding practice that the DoJ mantains continuity with past administrations (yes, Obama screwed this up with gay marriage – how did you feel about that at the time?).
      Saying that instead a new President’s constitutional vision should completely control is not only discarding anything like humility, it’s going to make for a great deal of uncertainty and arbitrary policy changes.

      1. We’ve long had “a great deal of uncertainty and arbitrary policy changes”. All that’s happening here is that the ratchet is being broken, so that the “uncertainty and arbitrary policy changes” can go in BOTH directions.

        1. So you want to end longstanding practice to get your beliefes enshrined over all others.

          Healthy way to run a republic, there.

          1. That’s not what he said.

            What he said was, longstanding practice having been long ago jettisoned by folk on the other side of the aisle to get their policy preferences entrenched, OK, we’ll go along. Longstanding practice gets jettisoned until we reach a deal that both sides agree to stick to. And until we have some evidence that the other side’s word of honor is worth more than manure.

            1. Seems to me he’s arguing the norm of defending the other side’s cases favors liberals, and should therefore be ended because it’s unfair.

              That’s not reasoning, it’s just radical partisanship.

              1. No doubt he can say what he’s arguing better than I can. As no doubt you can say what you’re arguing better than I can.

                So talk me through “yes, Obama screwed this up with gay marriage” and “the norm of defending the other side’s cases.” What value is “norm” taking here ?

                My interpretation of Brett is that he saying “there isn’t a norm any more. The liberals have broken it. So …. it’s broken. ”

                Would it be nice if it wasn’t ? Sure, maybe it would. But while it’s broken, it’s gonna stay broken for both sides. Mending it is a joint operation.

                1. Obama did it once. There were way more opportunities than that. To argue that the norm was dead is simply incorrect. It isn’t even dead now – the Trump admin is also using it selectively.

                  1. The whole argument is misbegotten. The mere existence of an unconstitutional assault on individual rights by a prior administration does not mean that a later administration should “respect the precedent” of this unconstitutional assault. All contradictions should be resolved in favor of constitutionality and individual rights.

                    1. Realizing that there is no platonic objective idea of constitutionality requires some humility, but will keep you from constitution-justifies-the-meansing your way towards one-party rule.

                      We are all trying our best here. Elevating your understanding above all others is good for your righteousness, not for the country.

                      ‘It is but due to Mr. M. to remark that to the brilliancy & fertiility of his genius, he added what is too rare, a candid surrender of his opinions when the lights of discussion satisfied him that they had been too hastily formed, and a readiness to aid in making the best of measures in which he had been overruled.’

                  2. Obama did it once.

                    There are other examples from State governments.

                    Of course the Trump admin is using it selectively. The Trump admin has been mostly staffed by Obama holdovers. It would take four terms to compete denazification.

                2. Lee, as a matter of logic you seem just to be saying that by breaking a norm, a defaulter puts itself in the clear, because after norm-breaking, the norm doesn’t count for anyone.

                  1. SL : Lee, as a matter of logic you seem just to be saying that by breaking a norm, a defaulter puts itself in the clear, because after norm-breaking, the norm doesn’t count for anyone

                    No. The person who breaks the norm is guilty of breaking the norm. Someone who comes along afterwards when the norm has already been broken by the frst guy, and who declines to abide by the now already broken norm, is not guilty of breaking the norm. Cos there’s no norm any more to break. The only person who’s guilty of breaking the norm is the first guy – because there actually was a norm when he broke it. So it’s quite OK to punish the first guy and let the second guy off.

                    Of course we can get into squabbles about what the norm was. So if there’s an apparent norm that you shouldn’t shoot a Governor, and then Side A shoots a Governor, that norm would appear to be broken and its open season on Governors. But when Side B then shoots a different Governor, Side A may say “No no no ! We only shot the Governor of Virginia. You shot the Governor of Montana. We nevah evah shot a Governor from a State west of the Mississippi. That’s quite unprecedented, and a flagrant breach of the norm against shooting Governors from West of the Mississsippi, and you TOTALLY broke it, you scoundrels !”

                    (Any similarity between this fictional representation and the sad fates of Miguel Estrada and Merrick Garand is entirely deliberate.)

                    1. Moving on from logic, to the Theory of Games as applied to political norms, if Side A breaks a norm and then wants Side B to abide by it in future, Side A needs to do something by way of compensation, and reassurance to Side B that Side A recognises that it done wrong, that it is willing to compensate Side B for the norm breaking, including paying something extra by way of punishment, and that it is sufficiently contrite about its behavior that Side B has a plausible reason to trust Side A will in future abide by the norm. In that way the broken norm might be restored.

                      What doesn’t work – obviously – is “Meh, we only broke it once, you should suck it up.”

                      Because that simply begets – “OK, so you can suck this up dogface.”

                      Which tends not to restore the norm.

              2. No, I’m arguing that the ‘liberals’ don’t follow that norm, so it would be foolish for conservatives to continue following it.

                There’s long been a ‘ratchet’ of arbitrary policy changes. It depends on the right respecting precedents the left established by themselves violating precedents.

                That’s a fool’s game.

                1. Yes, that is your usual song. But we have exactly one example of liberals breaking that norm, and it was notable enough the VC posted about it then as well.

                  Is there anything your conscience would be troubled by, or is the demonization of the left to rationalize your own bad behavior a panacea till it all comes tumbling down and you blame the left for that as well?

                  1. And now we have exactly one example of republicans breaking that norm.

                    So what are you complaining about?

                    1. So the normal argument is that Obama’s action was bad, and that this is bad.

                      Your argument that liberals ended the norm so this is fine? That’s making excuses for your side’s bad behavior.

            2. As usual with Bellmore, it is only the “other side” that doesn’t play fair, because they are out to undermine the country. He has about a million ways to write essentially the same comment.

              I’d hoped you were a little more sensible, Lee.

              1. Just noticed. You are talking about “denazification?” Really?

                I guess my hope was totally misplaced. You’re just as bad.

                1. It’s an expression referring to the long program to root out ideological Nazi remnants from the post War German bureaucracy. As a (blindingly obvious) metaphor it refers to any similar exercise to remove ancien regime holdovers, who are embedded in the system running interference on the new regime’s policies. It doesn’t imply that everyone who needs to be weeded out is a Nazi.

                  “Drain the swamp” is also a metaphor, btw. Obama holdovers aren’t frogs either.

                  1. De-Stalinization is better to use.

                    1. I don’t think de-Stalinization is at all apt. De-S was a series of measures to change Stalin’s policies after his death, including cautiously damping down the cult of personality, letting some people out of the camps etc. It wasn’t an attempt to weed the nomenklatura of Stalinist holdovers. For the obvious reason that the people in charge, pursuing de-S were themselves Stalinist holdovers.

                      De-N is much more apt because it was specifically about personnel – identifying and digging out holdovers from an ancien regime that was officially dead. Even “Drain the Swamp” doesn’t work quite so well – because that metaphor isn’t about the difficult task of identifying and excising particular parasites – it’s about getting rid of the whole environment in which the frogs, mosquitos and other swamp creatures live. The problem being that, like the post War German bureaucracy, the swamp actually contains some useful creatures along with the parasities and disease carriers.

                      I understand that bernard doesn’t like de-N, because emotionally he can’t separate the N from the de-N metaphor, but he’ll just have to lump it. I should say en passant that although bernard is often a sensible and reasonable poster from a lefty viewpoint, it’s obvious that he’s a rather emotional fellow whose heart sometimes interferes with his head. He’s not a cold hearted fellow like myself, or Sarcastro, and accordingly does have the occasional hissy fit. Which is fine.

                    2. I appreciate the kind words, Lee, but continue to believe that your choice of metaphor was unfortunate and thoughtless.

                      You could have done without a metaphor entirely by writing something like “it would take four terms to reform the bureaucracy,” (“reform” being your POV, not mine).

                      Let me add that using a metaphor to which some people will predictably have an angry response is not the way to keep the discussion on a rational level.

                    3. Let me add that using a metaphor to which some people will predictably have an angry response is not the way to keep the discussion on a rational level.

                      It’s a tricky judgement, I confess. I will neither be intimidated as to what terms I use by bullying, nor will I shrink from saying what I think for fear of causing offense. I appreciate that other folk have thinner skins than my own rhinoceros hide, but I don’t set out to cause offense for the sake of it. (Except when someone is behaving like a richardhead.)

                      I also find, as reader, that writing which is deliberately aimed so as to risk no offense to the faintest heart can become rather dull and sometimes even hard to follow. For a very mild example of that, I’ll highlight EV himself, who is an excellent and accurate writer, who never loses his cool and is always careful with his words. I enjoy his posts for their learnedness and clarity, but to be frank I often find some of the nuttier more excitable Profs more interesting to read.

                  2. I know what it refers to, Lee.

                    And no, it’s not an innocent metaphor, since it plainly suggests that those who need to be “weeded out” are Nazis, or equally evil.

                    Do better.

    2. It’s fine if the government does not want to defend its own law. Does that imply the legislature that passed it, or the citizens who voted for them, and live under it, are foreclosed from defending it in court?

      1. Well, sometimes it does. I recall that the new Dem Governor (and AG) of North Carolina tried to withdraw from federal litigation on the NC “gerrymandering” litigation, so that pro Dem lower court rulings would stand.
        I don’t recall whether SCOTUS allowed the NC legislature to intervene, and carry on with the case, but there was certainly a lot of doubt as to whether they could or not.

        And even if they were allowed to, there is no way that some representaives of a past NC legslature could have intervened if the current one chose not to.

        It’s not that uncommon for governments to take a dive in when it’s their political enemies legislation that is being litigated.

    3. Kazinski, I suggest you are missing an important distinction. The President of course does have a role to play in assessing constitutionality. But isn’t that role confined to instances where the President is exercising his enumerated powers?for instance, when a bill is presented for the President’s signature?

      The constitution doesn’t give the President unbounded initiative to sift the federal code, and strike down whatever he finds that he thinks is unconstitutional. A law that was passed by Congress, and signed by a President, is not something a later President can repeal unilaterally. If the constitution requires both the President and the Congress, working jointly, to create a law, and if it requires both the Congress and the President working jointly to repeal that law, upon what authority does the President get a power unilaterally to undo it? The President’s oath, and his enumerated power, is to defend that law. The President does not have a unilateral power of repeal.

      1. Of course the President doesn’t have the power of repeal, that’s a legislative function. Likewise, the courts don’t have the power of repeal. But from time to time the courts strike down a “law” that’s been duly passed by the legislature and signed by the President (or Governor.) They don’t “repeal” it when they do that, they simply declare that though it looks like a law and walks like a law, it isn’t in fact a law because it’s not constitutional.

        And thusly with the President. If he doesn’t think it’s a law, because he doesn’t think it’s constitutional, it’s not amongst the laws he’s constitutionally obliged to faithfully defend. Indeed it would be against his Presidential oath to defend it.

        Though a President whose views of which laws were and were not constitutional were eccentric, and in particular, eccentric and at variance with the views of SCOTUS, might find himself getting impeached.

  15. “reconsider the federal government’s position AG Barr has certainly done”

    Be careful what you ask for. You might get it.

    Its like the doritos commercial wit the fetching dog. Sometimes you get a bear, not a beautiful woman.

  16. Not a good sign????? Is Reason magazine now in favor of Obamacare and defending of unconstitutional law? The blogger reports: “In other words, the Department of Justice has decided not to defend any portion of the ACA.” Why should “any portion of the ACA” be upheld? Yes, the whole thing should be thrown out.

    1. Some like to accomplish their policy goals via legitimate means.

      [Note that I’m a liberal and like the ACA; Prof. Adler less so.]

  17. This whole “the penalty-free mandate makes the entire law unconstitutional” argument is really one of the stupidest things I’ve ever heard.

    It is essentially saying that all would be well if the penalty were $.01, but since it’s not, the whole thing is invalid. It’s utter nonsense.

    Are you people serious, or are you living in some alternate logic-free universe, or what?

    1. It is essentially saying that all would be well if the penalty were $.01, but since it’s not, the whole thing is invalid.

      I forget whether Roberts’ formulation insisted on a tax, or a tax that raised a meaningful amount of revenue. So I think what we may have is a fuzzy line, where we know that zero is definitely on the “it’s not a tax” side of the line, and the pre 2017 penalty is definitely on the “it is a tax” side of the line. Middle cases are as yet undefined.

      We’re forced to accept Roberts’ analysis that the mandate would be unconstitutional if it didn’t qualify as a tax, because he’s still the flip vote on the court. So if it’s no longer a tax, then it’s….unconstitutional. And first time round the 4 in the 5-4 concluded that if the mandate was unconstitutional, it would bring down the whole House of Cards. The only thing that kept it afloat was Roberts’ tax idea. If the mandate had been enforced not with a financial penalty but with 30 days jail, the ACA would already be a smoking heap of toast.

      The only thing that’s different this time round is that we’ve got to an unconstitutional mandate with a two hop process, enabling us to argue that Congress 2017 intended something different from Congrss 2010.

      So you’re much closer to that alternate universe than you think.

      1. Except Roberts initially believed the individual mandate was unconstitutional BUT severable. Roberts also initially believed the Medicaid expansion was constitutional. So the liberal justices are the ones that ruined Obamacare because everything would have been better had the individual mandate been declared unconstitutional but severable, while all 50 states forced to accept the Medicaid expansion.

        Roberts and the liberals really screwed up, and screwed the nation by trying to get too cute by half. So Roberts didn’t “save” Obamacare he undermined Obamacare and harmed Americans that were depending on the program to be successful.

      2. Except it’s not a mandate either.

        The whole argument is an absurdity, based on ODS, where the “O” stands for Obamacare.

        1. Except it’s not a mandate either

          Well strictly in the text of the law it’s a “requirement” though the Chief Justice was happy to refer to it by its colloquial name “individual mandate” in his judgement.

          But as a keen textulaist, I’m aways interested in learned textual analysis. What subtle distinction do you find between a “mandate” and a “requirement” ?

          I appreciate, of course, that “mandate” has another, obviously related, meaning of “authorisation” as well as the meaning that is used in this context (“command”) so you don’t need to trouble with that distinction.

          1. I don’t find any distinction.

            Neither do I find a distinction between a mandate which has no penalty attached and a simple statement of encouragement.

            From a logical POV there is zero difference between the “mandate” and a Congressional resolution urging people to get health insurance, because it’s a good idea.

            IANAL, and reading the legal arguments that there is something there, when there isn’t, makes me very glad I was never trained to “think like a lawyer.”

            The whole thing calls to mind the old riddle:

            A farmer has two horses and three cows.

            Q: If you call one of the horses a cow, how many cows does he have?

            A: Three. You can call a horse a cow if you like, but that doesn’t make it one.

            1. Ah, I understand.

              The CBO, for what it’s worth – which may not be much given their Obamacare estimates track record, estimated in 2017 that the effect of repealing the mandate on federal expenditure over ten years would be $338 billion, while the corresponding effect of zeroing out the penalty would be $318 billion. On the basis that some people will buy health insurance that they would not otherwise choose to buy, simply because the law commands them to do so, without a penalty. I don’t know how many people that is, but it can’t be an entirely trivial number to make a $2 billion a year difference. Well into the tens of thousands, presumably, probably into the hundreds of thousands.

              There are some folk who think you should obey the laws commands just because they are the laws commands – not me alas, but I have met a few of them. I can’t say I’ve knowingly met anyone who feels any corresponding duty to follow the exhortation of a Congressional resolution just because its a Congressional resolution, but not everybody I know fills me in on their struggles with their consciences all the time. Thank the Lord.

              1. I found your $338 billion figure here, but not the $318 billion figure.

                Note that the $338B is a reduction in the deficit, hence not a result of mandate-related penalties, so I don’t think your $2B/yr figure tells us anything about how many people will still maintain insurance.

                The CBO does estimate that “only a small number of people who enroll in insurance because of the mandate under current law would continue to do so solely because of a willingness to comply with the law.”

                1. I got both my numbers from here :

                  https://www.healthaffairs.org/do/
                  10.1377/hblog20171220.323429/full/

                  I agree it’s not the result of the mandate penalties – if it was $2 billion a year would equate to 3 or 4 million people, which would be silly. No, presumably the figure arises from a complex calculation related to subsidies. But clearly, numbers of people buying and not buying insurance are variables in the calculation. It’s hard to see how an average subsidy per person switching from subsidised cover to no cover could exceed $20,000 a year. Hence it’s pretty hard to believe we’re looking at fewer than 100,000 people. And more likely several hundred thousand as the average subsidy is more likely to be in the $5,000 range than the $20,000 range. But I’m guessing, I don’t know. I’m just confident that you don’t get a $2 billion pa budgetary effect from 200 people. Cos that would be $10 million each.

                  1. Glancing at your link, it looks like the CBO is estimating that eliminating the mandate would increase the number of uninsured people by 13 million by the end of the ten year budgetry window, to save $338 billion.

                    Consequently, if we take the $318 billion from just eliminating the penalty, that’s 94% of $338 billion. So we may tentatively conclude that 6% of the 13 million would be buying insurance in the $318 case (no penalty), but would not in the $338 case (no mandate.)

                    Which would be 13 million times 6% = 780,000 people.

                    However the CBO starts with 4 million people and only grows it to 13 million over 10 years. So if you prefer to start with 4 million times 6% = 240,000 then you’re welcome.

                    Either 240,000 people or 780,000 people is a small number of course, relative to 300 million or so. But it’s still several hundred thousand people.

    2. Its actually one of the smartest responses to one of the stupidest opinions in SC history. “The mandate is called a penalty, but its really a tax.” If the SC is going to be that stupid, you shouldn’t be surprised at the responses.

  18. Roberts is in record as supporting severability with respect to the individual mandate. This is a big waste of time.

  19. So lets assume that killing the mandate made the rest of the law unconstitutional.

    Then why is the ACA the law that’s invalidated? Why not the tax law?

    For one, the ACA has been around longer, repealing it is much more disruptive.

    But also, if the ACA is repealed then that means the Congress that passed the Tax Law effectively repealed the ACA. But by the rules of the Senate that Congress never had the power to repeal the ACA. Those are Senate rules not laws, but it’s a valid point.

    And finally, that very same Congress rejected a (slightly different) repeal of the ACA because it was too drastic. So how does Congress ends up having passed a much more drastic full repeal?

    1. Good set of questions.

      1. “Then why is the ACA the law that’s invalidated? Why not the tax law?”

      (a) because the provision that is alleged to be unconstitutional (the mandate) is in the ACA not the 2017 tax law, and
      (b) even if, say, the provision in the 2017 tax law that reduced the mandate penalty to zero was somehow unconstitutional, it is not alleged to be so critical to the rest of the 2017 tax law that we must suppose that Congress intended that if the penalty zeroing was struck out, the rest of the tax law should fall with it. Whereas it certainly is alleged that the 2010 Congress intended that if the mandate was struck out, the rest should fall with it

      On this last point of course opinions may differ. But four SCOTUS justices did opine thus only seven years ago.

      1. 2. “For one, the ACA has been around longer, repealing it is much more disruptive.”

        True, but only relevant if you think judges should decide cases on the basis of their opinions of policy.

        3. “But also, if the ACA is repealed then that means the Congress that passed the Tax Law effectively repealed the ACA. But by the rules of the Senate that Congress never had the power to repeal the ACA. Those are Senate rules not laws, but it’s a valid point.”

        Interesting rather than valid. Senate rules permit the majority to do what the majority did. If the result of that is the repeal of the ACA, that just means that Senate rules allow the Senate to repeal the ACA, so long as it uses this route. (In much the same way, the Constitution does not permit Congress to impose mandates requiring people to buy health insurance. Unless Congress does it in a particular way – with a tax.

        1. And finally, that very same Congress rejected a (slightly different) repeal of the ACA because it was too drastic. So how does Congress ends up having passed a much more drastic full repeal?

          You have to pass it to find out what’s in it 🙂

      2. a)
        So why can’t you just strike the provision in the 2017 tax law? It doesn’t make sense to me that if you modify an existing law in a way that makes in unconstitutional that the law and not just the modification is the thing that gets struck from the books. That’s an incredibly disruptive way to follow the constitution.

        Imagine the ACA contained a provision that ended up making private health insurance unconstitutional. Does it make sense that the ACA would survive up the private health care industry would be struck? No, the offending provision would be struck, and, if it were essential to the law, the entire ACA would be struck as well.

        1. Cos there’s nothing unconstitutional in the 2017 tax law. If the penalty is a tax (thanks CJ Roberts) then there’s not any doubt that Congress has the constitutional power to vary the tax, or to remove it. The court has no power to strike constitutional things.

          The only thing that is unconstitutional (per 5 of the SCOTUS justices) is Congress commanding people to buy something they don’t choose to buy. Unless per a different 5, Congress structures it as a tax on not buying the thing.

          Something went awry with your grammar in the private health insurance market example, so I’m not quite sure what your hypothetical was. But I think it was something along the lines of if small new, but impeccably constitutional, law has – somehow – the effect of making some big old law unconstitutional, then it’s the new law which should be struck, not the old one, because that would be too disruptive.

          That’s a school of jurisprudence which says – the law is what judges think would be prudent in the circumstances, taking into account their opinion of the good of the Republic. There are plenty of folk who agree with this, including not a few judges, though they don’t usually put it that way. I suspect that secretly Roberts is one of these, though he’d protest loudly that he isn’t, because he always seems to like to decide things so as to cause the least trouble.

          1. Me – I’m more of a fiat justitia ruat caelum sort of guy. Not least because

            (1) the sky falls once for every two hundred times it’s predicted to
            (2) it falls quite slowly when it does fall
            (3) and there are folk – the legislature – who are tasked with constructing rules that will keep it up, or
            (4) re-erecting it if an excitable judiciary has knocked it down

            1. And the obvious related point is that the appropriate position of the sky – up high, crashed to earth, titling at an angle to the right or left etc – is a political question. There are folk who think the demise of the private health insurance market would be just dandy and couldn’t come soon enough.

    2. Great point.

  20. It might help clear things up if the president would simply describe why he believes the ACA is unconstitutional.

    And these days, we could all use the laugh.

    1. “Look Article I, Section 8. See anything there? Nope? There’s your answer”

  21. Hmmm. Some dude accused of fraud is trying to get his case dismissed based on this.

  22. “even more remarkable that the Department failed to defend a readily defensible federal law.”

    It is not a readily defensible federal law. It is clearly an unconstitutionally law, and its great the administration is recognizing that.

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