health care

Does Anyone Support DOJ's Position in the Texas ACA Case?

The Trump Administration's embrace of an implausible legal theory has few defenders.

|The Volokh Conspiracy |

On Monday, the Department of Justice informed the U.S. Court of Appeals for the Fifth Circuit that it would not be supporting an appeal of a district court decision holding that the entire Affordable Care Act (ACA) must be invalidated. Although the district court decision in Texas v. US embraced a far more expansive remedy than the Justice Department had proposed, the Administration decided that it would support the court's conclusion that Congress's decision to zero out the tax penalty used to enforce the individual mandate in 2017 required judicial invalidation of the entire law enacted in 2010.

The Justice Department's decision prompted criticism from across the ideological spectrum, including from folks who have been quite critical of the ACA. The Cato Institute's Michael Cannon, for example, penned an op-ed for the New York Post thoroughly rejecting the slapdash legal theory embraced by district court judge Reed O'Connor and DOJ:

In a dramatic reversal, the Trump administration has asked a federal appellate court to uphold a lower-court ruling striking down all of ObamaCare as unconstitutional.

You might expect me to be happy. The New Republic calls me "ObamaCare's single most relentless antagonist." The Week says I'm "ObamaCare's fiercest critic." Give me five minutes, and I'll explain how the so-called "Patient Protection and Affordable Care Act" ironically makes health insurance less ­affordable and reduces protections for the sickest patients. I seethed when the US Supreme Court unilaterally rewrote ObamaCare first in 2012 and again in 2015.

But rather than experience elation at this latest ruling, I'm seething again, and for the same reason. In Texas v. Azar, federal judge Reed O'Connor did ­exactly what Chief Justice John Roberts did at the high court: jettison the rule of law to achieve a politically desired outcome.

Cannon hardly opposes creative litigation strategies against the ACA. He and I co-authored the article upon which the legal challenges that led to King v. Burwell were based, and yet he shares my concerns about this more recent litigation.

Cannon is not alone. Here in Ohio, Attorney General Dave Yost, a conservative Republican, announced that he would be filing a brief rejecting the Justice Department's new position. As the Cleveland Plain Dealer reported:

Yost, a Republican, announced in a release that he will file a brief arguing that while the health-care reform law's controversial individual mandate is unconstitutional, other parts of "Obamacare" can and should remain in place – in particular, rules prohibiting insurance companies from denying coverage because of pre-existing conditions. . . .

Yost stated that O'Connor's reasoning in his decision was flawed, because it required him to guess whether Congress would have passed the rest of the ACA if lawmakers knew the individual mandate was unconstitutional. The attorney general argued that the judge didn't have to guess about Congress's intent, as the Republican-led U.S. House in 2017 expressly left parts of the Affordable Care Act intact when it voted to reduce the individual mandate penalty to zero.

"I do not like judicial activism in either its liberal or conservative flavors," Yost said.

Why did the Justice Department revise its position? It's a good question. According to reports in Politico and the New York Times, both Attorney General William Barr and HHS Secretary Alex Azar opposed the idea of defending Judge O'Connor's decision, but were overruled in the White House. Apparently some of the President's political advisors believe that if the law can be struck down in court, there will be a new opportunity to enact an alternative to Obamacare. It's a brazen strategy of the sort this Administration has employed in other areas, such as immigration, and seems no more likely to work. Indeed, it could even be counterproductive, particularly insofar as it undermines the Justice Department's credibility in court.

What's particularly bizarre about the Justice Department's move is that it is unlikely to alter the outcome of the litigation. However problematic the Justice Department's initial position in this litigation was, it least had the superficial plausibility that it was consistent with the Obama Adminsitration's view that the individual mandate was inseverable from the ACA's key insurance market reforms: guaranteed issue and community rating. The new position, however, lacks even this figleaf of a justification, and is likely to be viewed as nakedly political by the courts.

Professor Josh Blackman, author of two books about the legal conflicts and controversies surrounding the Affordable Care Act, Unprecedented and Unraveled, wrote in the Washington Post that the Adminstration's change of heart diminishes the stature and credibility of the Justice Department

Since the inception of the Affordable Care Act, President Barack Obama served as its legal guardian. In the span of five years, his administration defended the law before the Supreme Court in four high-profile cases. The Trump administration, however, quickly abandoned that role. In 2018, then-Attorney General Jeff Sessions argued that key portions of Obamacare were unconstitutional following the tax-cut legislation. Now, the Justice Department contends that the entire ACA must go.

The strategy is patent: Incinerate the law so a new, greater health-care reform can rise from the ashes. President Trump stated the matter bluntly: "If the Supreme Court rules that Obamacare is out, we'll have a plan that is far better than Obamacare."

In the short term, this position will have little impact on the ACA litigation. Other parties, including the House of Representatives, can defend the entire law. But in the long run, this move is counterproductive. The Justice Department has amassed a treasure trove of goodwill and credibility among federal courts over the years. But going forward, judges may be less willing to afford the executive branch this unique type of deference. Because of this hard-to-justify decision, the Trump administration will have an even harder time prevailing in other cases.

In other words, by overruling DOJ's position, the White House has done nothing to help advance its health care policy goals and may have actually made it harder to defend other administration initiatives in court. That is quite an own goal.

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154 responses to “Does Anyone Support DOJ's Position in the Texas ACA Case?

  1. some of the President’s political advisors believe that if the law can be struck down in court, there will be a new opportunity to enact an alternative to Obamacare.

    You think they really believe that? Pardon me while I laugh out loud. The GOP has no plan, never had a plan, and is incapable of coming up with one that makes any sense.

    1. The “plan” is the same as it was with DACA. Remember? The Dems were coming around, and they kept throwing in additional demands for “immigration reform,” until the courts blocked its cancellation.

      They think that, by torpedoing the American healthcare economy and threatening to throw millions of people off their insurance, they can get the Democrats to agree to an a la carte “plan” that gives the Republicans what they want.

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    2. “The GOP has no plan, never had a plan, and is incapable of coming up with one that makes any sense.”

      Your mistake is assuming that their plan had the same goals as you do, and that is not the case.

      The fundamental problem is that there exist a fairly substantial number of people who need healthcare, but are unable to pay for it. Historically, the solution to this problem was charity. That’s why so many hospitals are named after saints. Some illnesses aren’t popular with the donor class, and thus, tend to be left to their own resources, and if they don’t have any…

      Insurance is a solid alternative… except you’ve just moved the problem.

      Then, there’s flat-out government support. Medicaid covers people who can’t get insurance and can’t afford the medical care they need… but it makes people paying for their own insurance angry to see some people getting it for free, just because they have no resources of their own. A lot of the Medicaid recipients are people with chronic illnesses that would have a hard time getting private insurance, at any price.

      Then, there’s the Republican plan. People who can’t afford healthcare don’t get it, period. Sure, they get sick, and some of them die. Too bad. It’s not like any of them are Republicans. (well, it turns out that a lot of them ARE, but as long as the people dropping dead in the streets are no more than half Republicans, it’s no net loss.)

      1. You got it. A disproportionate percentage of health care spending is on overweight blacks and Hispanics, and on homosexuals, none of whom vote for Republicans. I don’t see why Republicans should pay taxes to cover illnesses and other health issues that mainly Democrat constituencies get.

        1. +10

      2. “Then there’s the Republican plan. People who can’t afford healthcare don’t get it, period”.

        Keep telling yourself that lie long enough, and the rest of the echo box will think it too. I’ve also got Russia – Trump collusion in here with it.

        1. If you’re ENTIRE argument is “nuh UH!”, it shows you don’t have much of an argument.

          1. P.S. — I predicted two years ago that there was no actual collusion between Russia and Trump. Russia wanted Trump to win, Putin is too smart to let Trump mess than up.

          2. This lie (IE “They just get sick and die”) has been rebutted so many times, that the argument is common knowledge. But, to those in the echo chamber “arguments” don’t sway them. You know, like the 44 million people in the country who currently don’t have insurance, and just get sick and die. Right?

            But just like the whole Russia – Trump delusion debacle “facts” and “logic” won’t do anything. You’ve got the echo chamber.

        2. Apparently two of your co-partisans (DeleteGrossLiberals and loveconstitution1789) disagree with you. In comments immediately above yours, not only don’t they cosign your accusation that the idea of the GOP withholding health care from those who can’t afford it is a lie, they endorse the plan enthusiastically.

    3. Yeah, it’s stupid for the GOP to talk about replacing Obamacare. If I wanted socialized medicine, I’d vote Dem. The GOP should be talking about how to remove constraints from the health care market. Getting rid of the employer mandate, and making all health coverage tax deductible would be a good start. We need to get rid of employer-provided health care and move it to an individual market.

      1. But people with employer provided health insurance are the main voting bloc against Obamacare. Get rid of that and you’ll have single payer in no time.

        1. People who are happy with their insurance are the main voting block against Obamacare. If you eliminate the tax advantage that employer-provided insurance enjoys, people could switch to non-employer provided plans if they choose, so you would have people happy with non-employer provided plans.

          1. Oh, you mean “non-employer provided plans” like the ACA provides?

            btw, I’ve long since been in support of removing the tie between employment and healthcare (because of the business advantage it gives other countries). It was an accident anyway, an outcome of WWII wage and price controls. Correcting that is long overdue.

      2. Classic libertarian solution to addressing health care inefficiencies: Tax it more.

        1. I said tax it less. Make all medical expenditures tax deductible.

      3. But they are really good at framing the debate. That’s what libertarians need to work on.

    4. 1) Even Obama admitted, after the fact, they had a plan.
      2) Why do they NEED one? If the proper solution is “The government fucks shit up so don’t let them”, then they shouldn’t have a plan outside of “Well, the government isn’t doing it”

    5. So you think what we really need is a good, solid Republican plan for doing something the government has no business doing. How about “no”? Does “no” work for you?

  2. Why would I *want* the U. S. Department of Justice to have any special credibility in the federal courts?

    If they lose that credibility, my only prayer is that they never get it back, and that they get as much attention as the quality of their arguments deserves, just as if they were a private litigant.

    1. Don’t you want enough credibility to linger to give the Trump administration a better shot at defending its bigoted, authoritarian immigration measures? Or its bigoted, authoritarian policies involving gay and transgendered Americans? Or its authoritarian, misogynistic initiatives with respect to statist womb management?

      1. Do you remember what records were? You’re like a broken record.

        1. Yeah, I don’t like bigots. Or appeasers of bigotry. Or superstition-based bigotry. Not a fan of backwardness.

          I like to mock faux libertarians.

          1. “I like to mock faux libertarians.”

            And you probably think that the reason people laugh when you say anything is because you’re presiding at the Algonquin Round Table and everyone is appreciative of your witty sallies.

          2. So…. last 2 dem administrations, either the President or VP commits sexual misconduct in office. I mean, what’s wrong with you guys? Not even Trump’s been accused of sexual misconduct in office.

  3. the Adminstration’s change of heart diminishes the stature and credibility of the Justice Department

    Good one 🙂

  4. Apparently Roy Black is trying to get his client’s fraud case thrown out because of this. But it appears that the alleged fraud occurred before congress nixed the mandate, so I don’t see how the argument works.

    1. The Rick Scott defense.

  5. Does the treasure trove of goodwill and credibility amassed by the Department of Justice include the Obama DOJ’s abandonment of the Defense of Marriage Act? How about the Texas district judge who ordered ethics classes for Obama Justice Department attorneys in that immigration case? Must have built up a lot of goodwill and credibility there. I’m sure those matters (and others) occurring during the prior administration must have just momentarily skipped Prof. Blackmun’s mind.

    1. Of course, as bad as the analysis is, he doesn’t deserve to be compared with Justice Blackmun, so my apologies for the typo.

    2. But Obama. The refuge of the conservative.

      1. kind of thought it was fair to point out that the prior administration was not the legal guardian of a treasure trove of credibility, since this was discussed in the included Blackman quote. But as for more pointed criticism of some of the learned sources, how about AG Yost failing to understand that the 2017 Congress did not repeal the individual mandate by reducing the tax provision. As the district court noted, the tax and mandate were separate provisions and eliminating the payment in no way means they intended to sever the individual mandate.

        1. If you don’t work “Hussein” into a tangential reference to Obama, your virtue signaling is amateurish.

          1. And your failure to work “goober” or “rube” into that comment is inexcusable.

          2. Well Artie, I wasn’t sure how to spell it, “ei” or “ie,” I’m never really sure.

            But, is this your only response? Maybe you really couldn’t understand my points?

            1. Artie isn’t here any more. Prof. Volokh censored him. For being too authentically conservative, or perhaps for mocking right-wing yahoos.

              It was worth it, though. It makes Prof. Volokh’s ostensible ardor for free expression easy to dismiss as partisan posturing.

              If Prof. Volokh apologizes, genuinely, to Artie Ray, I would probably stop mentioning Prof. Volokh’s vivid hypocrisy. He censors liberal content while playing the matador for conservative comments — even threatening, bigoted right-wing comments — when he isn’t whining incessantly about perceived missteps by strong, liberal-libertarian schools.

              1. Good thing you’re here to defend truth, justice and the….well now I’m stumped because I can’t say the American way, I guess whatever way it is that you are.

                1. My way is the American way, MKE. Did you miss the most recent 70 years of American history and improvement? My preferences have prevailed.

                  Carry on, clingers. Whining about all of this damned liberal-libertarian progress is free.

                  1. Didn’t the last 70 years see America reject Democrat imposed Jim Crow/segregation and the Democrat created Klan? You’re right, progress at last.

    3. “Does the treasure trove of goodwill and credibility amassed by the Department of Justice include the Obama DOJ’s abandonment of the Defense of Marriage Act?”

      President Obama’s DOJ defended DOMA, even after he had campaigned against it. They briefed that it was constitutional in Smelt. When the President did decide to stop defending the law in court (while still enforcing it), he notified Congress so that it had an opportunity to participate in the litigation of those cases, which they did.

      Now, I think DOMA was constitutional, and the President has an obligation to defend laws that Congress passes. The case against DOMA’s constitutionality was much stronger than the present case against severability (as has been demonstrated). I also think, consistent with what Justice Scalia said in his dissent in Windsor, that the President’s decision not to defend the ACA removes the controversy element of Article III standing.

      1. Well, I actually might tend to agree with you, or Scalia that is, regarding the disposition of the Appeal given the DOJ’s position.

        As for the Obama DOJ, in addition to the gross ethics violation in the immigration case, how about the misconduct of the Holder DOJ in the trial of those five New Orleans police officers? Other examples exist I’m sure, not the least of which might be conduct before the FISA court. So, in sum, not really a treasure trove of goodwill and credibility.

        1. Yes, lets look at nonanalogous Obama stuff and not what’s happening right now.

          1. Not really non-analogous from the point of view of Blackman, and the author of the article I guess, since the quote was referenced for a reason. But also relevant today in a sense since we’re still suffering through the legacy of DOJ corruption from the last administration. Not that the DOJ didn’t have problems before but the leadership of the prior administration were particularly damaging to the institution, maybe permanently.

          2. Not really non-analogous from the point of view of Blackman, and the author of the article I guess, since the quote was referenced for a reason. But also relevant today in a sense since we’re still suffering through the legacy of DOJ corruption from the last administration. Not that the DOJ didn’t have problems before but the leadership of the prior administration were particularly damaging to the institution, maybe permanently.

    4. “How about the Texas district judge who ordered ethics classes for Obama Justice Department attorneys in that immigration case.” The attorneys involved were career civil servants rather than Obama appointees. And that whole imbroglio says more about the judge’s own confusion than it does about those civil servants.

      Abandoning DOMA defense seems to have been a close call. I don’t think it’s the one I would have made in real time, but I don’t know that much about the litigation and the arguments, and it may have been the right call for all I know. Either way, it’s different than not defending ANY parts of the ACA, including the many parts that have nothing at all to do, and in no way depend upon, the continuing existence of a federal individual mandate (plus, a State, of course, is free to impose its own mandate if it deems it necessary to make the insurance market work in light of guaranteed issue and community rating.) In DOMA, DOJ ran arguments in the courts below, and it is my impression (I make no claim to expertise) that, as the litigation ran its course, counterarguments exposed limitations in those arguments, and both judicial and public views shifted. Neither of those points apply here to the ACA.

  6. I cannot comment as an expert on AG Yost’s position as a matter of law but it’s important to know the policy implications.

    “while the health-care reform law’s controversial individual mandate is unconstitutional, other parts of ‘Obamacare’ can and should remain in place ? in particular, rules prohibiting insurance companies from denying coverage because of pre-existing conditions. . . .”

    An activist insurance commissioner in Washington State in the 90s required guaranteed issue with no individual mandate. The result, predictably, was that people waited until they got sick or got pregnant and then bought insurance, only to drop it after the bills were paid. Predictably, this guaranteed losses for the insurance companies. Predictably, they stopped writing individual policies. It became impossible to buy individual coverage at any price. My wife and I had just lost our group coverage and it was scary for a while.

    If “other parts” “remain in place” with no individual mandate, it will be pure luck if the entire country’s insurance market continues delivering individual policies.

    1. Your experience points the political way toward single payer health insurance.

      1. “Imagine if EVERYBODY had the same level of service as the V.A provides.” — Stephen Lathrop

  7. Is it political? Sure. But most of the original arguments were political as well. And Roberts ultimately made a political decision to save it. It was a tax that wasn’t a tax that was a tax.

    If the mandate can’t severed, it can’t be severed. And if it’s not a tax, it can’t be upheld.

    1. On the other hand, Congress willed that the mandate disappear. And they also willed that the ACA not disappear.

      Ergo, they willed that it continue to exist, even if it limp along.

      1. And you can thank Trump’s mouth for the second half of that, saying he didn’t like losers who got captured, referring to war hero McCaine, who refused to leave the Hanoi Hilton when he had the chance because he would not leave his men behind. This was certainly what lead to his famous last-second, gasp-inducing thumbs down.

        1. For years and years they claimed that if they just had a chance, they’d repeal the ACA and replace it something even better.

          Then, they found themselves with control of both houses of Congress, and the White House, and it was time to put up or shut up.

          They, of course, won’t do either.

          1. Too many RINOs in Congress when it was controlled by the GOP. Hence a failed ObamaCare repeal.

            RINOs are Lefties hiding as Republicans since they cannot get elected as Democrats.

            1. By hook or by crook, eh loveconstitution?

        2. Oh, right, like McCain never knifed somebody in the back politically unless they’d personally pissed him off.

          The only thing that was keeping McCain from turning into a giant upraised finger to the right was his need to be reelected. Once he realized that was off the table, his only mission was looking for opportunities to screw over the party that had been too stupid to get rid of him decades earlier, when his nature became apparent.

        3. And you can thank Trump’s mouth for the second half of that, saying he didn’t like losers who got captured, referring to war hero McCaine, who refused to leave the Hanoi Hilton when he had the chance because he would not leave his men behind. This was certainly what lead to his famous last-second, gasp-inducing thumbs down.

          So McCain allowed being butt-hurt to have him vote against what he claimed was a core belief of his?

          I cannot tell you if you respect McCain or think even less of him than I do.

  8. Apparently no one supports the DOJ position- except maybe the 20 state’s AGs who are party to the case.

    1. Then why didn’t they start out by asking for the DOJ’s current position, instead of the remedy they actually asked for?

    2. Everybody agrees with Alder except for those inexplicable people who disagree with him.

      Of course, they disagree with him, too, they’re just lying about it for reasons.

  9. I’m curious what will happen when/if the Democrats recapture the Senate and White House, and pass a bill setting the tax for failing to obtain health insurance back to a non-zero value. The entirety of the ACA then springs back to life, because it was never written out of the US Code, right?

    1. We’ll have to wait until they’ve abolished the filibuster, added five new Supreme Court slots, and filled them. That may take a few days.

    2. Concern about healthcare will not go away. If the ACA is intact you can expect Democrats to work to strengthen the law. If the ACA is scraped by the courts it will likely energize the Democrats. It certainly helped winning House seats in 2018. And if Democrats do control Congress and the Whitehouse they will not go back to a market based system. Eliminating the ACA will pave the way for Medicare for All.

      1. Are Democrats prepared to pay the taxes that would be needed for Medicare for All?

        1. I just hope that when the inevitable arrival of universal health care occurs, the program is called Obamacare so right-wingers get to savor the memory every time it is mentioned.

          Winning the culture war can be fun. I guess conservatives must take my word for it.

          1. Winning the culture war but having America collapse isn’t going to be fun for you.

            1. I suppose people will have plenty of time to put their schlongs in each other’s tuccises while they’re waiting in line for health care. And no one will want to bring their schlongs anywhere near a woman because of all the forms you have to fill out, plus the waiting period and background check to determine if you are in a position of power over her. It’s the left’s master plan for America!

              1. Pretty much.

                1. Conservatism in a nutshell. Whining about the gays and the blacks while waiting for the next routing in the culture war.

          2. Some European countries supply a baseline of care, and you can buy better if you like.

            Others are totalitarian dictatorships that make it illegal to get any care outside the government syste.

            This is like government social security, except it is illegal to save your own money for retirement, and when you retire, all your savings and investments are confiscated.

            You get what the government gives you, end of story.

      2. If I remember the cost for ACA properly, It would be cheaper to give every recipient 50k dollars to buy insurance. Not that the government should do that. I’m just pointing out the insane per person cost of this ridiculous terribly written ineffective law. Republicans should remove laws that forbid purchase of health insurance across state lines.

    3. So, this is after the Democrats have campaigned honestly and openly about re-setting that most popular of taxes? Just kidding, not a chance for that. But I guess they might try that if they achieved power by explicitly not revealing an intention to hike the tax. Memories of 2010 might stop them though. On the other hand, some of the AOC caliber members probably don’t remember 2010 so they might just be stupid enough to try it.

      1. Clingers who see health care as a winning issue for Republicans are among my favorite casualties in the American culture war.

        1. Great, go with socialized medicine. I mean, who could argue with the worldwide success of socialism?

      2. “So, this is after the Democrats have campaigned honestly and openly about re-setting that most popular of taxes?”

        Preserving it was what they ran on in 2018. It may not be popular amongst your circle, but the majority of Americans…

        1. May have been a side issue, but predominately they did their best to play off the collusion insanity, which is now gone.

          1. Perhaps the political advertising was different wherever you are than where I am.

            1. Could be slightly different if you’re living in CA, but it’s pretty surprising if you happen to live in a place that wasn’t bombarded 24/7 by the media with the collusion nonsense. Can’t imagine where that would be. The Galapagos islands? Easter Island? (but I bet the news even there hit on Russia collusion every other day).

        2. The majority of Americans want all kinds of things. They just don’t want to pay for it.

  10. “If the Supreme Court rules that Obamacare is out, we’ll have a plan that is far better than Obamacare.”

    And people still believe Trump, year after year. What is his plan? Is it a secret plan? Republicans have been selling a vaporware ACA alternative for years.

    1. Heck, no plan, just get government out of the field, would be a better plan than prevailed even before the ACA, let alone after.

      But I figure if Trump is smart enough to let the Federalist society pick judges, maybe he’s smart enough to let Cato provide a plan.

      1. ” no plan, just get government out of the field, would be a better plan than prevailed even before the ACA”

        The plan is, people who can’t afford healthcare just go off and die.

      2. maybe he’s smart enough to let Cato provide a plan.

        If so, maybe he would have done it by now.

        For all the free market fundamentalism on evidence on this site, health insurance is a complex problem, not easily amenable to simple-minded Chapter One solutions.

      3. The irony, of course, being that mandatory retention of a health insurance provider was a conservative think-tank’s brainchild, in the first place…

  11. All of our problems would go away if non-producers were stripped of the vote. People voting themselves money from the producers is what will lead to the downfall of America.

    1. I doubt disenfranchising West Virginia, Mississippi, Wyoming, Alabama, and other backwaters is a good proposal for wingnuts.

      1. The white people in those states are not voting themselves other people’s money.

        1. Some of them rise from their ignorant stupors long enough to vote, at least occasionally.

    2. I doubt disenfranchising West Virginia, Mississippi, Wyoming, Alabama, and other backwaters is a good proposal for wingnuts.

    3. Interesting idea, only producers vote. So under this idea we could expect the following:

      – Sixteen year-olds who have a job and pay taxes would then be eligible to vote. Note the added benefits to voter identification. You could use your work ID for voting.
      – Concern about the stay at home spouse raising the kids. They don’t have a formal job, but they are raising the next generation. Do we let them vote?
      – Some states don’t let felons vote. Now if the person has served their time and has a job would their voting right not have to be reinstated.
      – Finally what about the retired guy like me. Do my years as a producer count or do I lose my voting rights at retirement.

      Just asking?

  12. ObamaCare is unconstitutional, so any decision that follows that is correct.

    There is simply no government authority to force Americans to buy a product or service. None.

    John Roberts tried to say that ObamaCare is a tax but even its drafters said it was not. Its not a tax. Its a demand to buy health insurance at government set rates. A tax would be collecting a set amount and then spending it as the government sees fit.

    1. “There is simply no government authority to force Americans to buy a product or service. None.”

      Nor has anybody claimed there is. There is, however, a power to tax people. You have always had your choice, buy health insurance, or don’t. Total number of people imprisoned for failing to buy health insurance… 0.

      1. Nor has anybody claimed there is.

        Now they say that. They, they didn’t. They swore up and down it wasn’t a tax, because taxes are evil. No, it was a penalty for not buying medical insurance.

      2. it is mandate. it is a legal imperative. it is a legal demand made by the federal government that people buy a private product that eviscerates the last shred of the ICC. some people have bought insurance on the exchanges because the government required it. I did. it wasn’t a choice. it was a legal requirement.

    2. There is also no authority to force Americans to bake a wedding cake for two men in an anal-sex based marriage.

      1. Exactly.

    3. Keep your shirt on. You can have the tax system you demand as soon as you decide to support single payer.

    4. “There is simply no government authority to force Americans to buy a product or service. None.”

      You’re talking only at the federal level, right?

      1. At the federal level, it was get insurance or pay a tax. At the state level, you can vote with your feet.

        But not in a car, since every state requires insurance for driving.

        1. No, at the federal level it was get insurance or pay a penalty. The statute refers to is as a “penalty” multiple times, and nowhere as a “tax”.

          In ruling on the NFA, the Court ruled that as long as Congress called something a tax, and it had any possible revenue yield, they weren’t going to admit that it was actually a penalty.

          With Robert’s ruling, the Court went one step further: It wasn’t going to admit it was a penalty even if Congress specified that it was a penalty.

          But we don’t have to go along with Roberts’ lie. It’s a penalty, it says so right in the law.

        2. Your last sentence is false. Several states don’t require insurance (Arizona, Mississippi, New Hampshire, and Virginia).

        3. Your last sentence is false. Several states don’t require insurance (Arizona, Mississippi, New Hampshire, and Virginia).

      2. At the state level no state that I know of has given itself the power to force citizens to buy products or services. All they have to do is amend their state constitutions.

        States don’t have plenary powers anymore, once they joined the USA.

    5. The bill originated in the Senate so it can’t be a tax.
      To cover up that crime, they took the first page off an unrelated House Bill and slapped it on Obamacare.
      That’s like taking the cover off “War and Peace”,
      putting it on your kid’s “What I did on my summer vacation” essay,
      and claiming your kid spent summer fighting Napoleon in Russia.
      It’s a crock.
      Then professor Roberts gives your kid an “A”.

  13. “it least had the superficial plausibility that it was consistent with the Obama Adminsitration’s view:

    And, why the Hell should the Trump administration feel any need to be consistent with the Obama administration’s view on anything?

    Is the point of electing Republicans to continue Democratic policy, only with Republicans taking the blame?

    1. ” why the Hell should the Trump administration feel any need to be consistent with the Obama administration’s view on anything?”

      Because a majority of Americans liked it that way?
      When you concede that your party exists to serve it’s own interests instead of the country’s, you’ve conceded that they’re leeches on society. Was this your intention?

      1. Be careful defining your positions, or your party’s, as synonymous with “the country’s”, whatever that is.

        1. Seeing as how I’m not a member of a party, I’m pretty sure I haven’t confused “my party’s” position with anyone else’s.

    2. Yes. That’s why every single Obama judge has ruled that any of Trump’s EO actions are “arbitrary and capricious.” They’re not even pretending to do anything other than substituting their judgment for his.

      These people should be gassed.

      1. There are lots of people at least as conservative as you on this blog who manage not to do this.

        Why are you so fucked up?

  14. Because a majority of Americans liked it that way?

    You’ve sprinkled this tripe throughout the discussion, predictably without providing a shred of evidence that a majority of Americans like the skyrocketing premiums and deductibles and thin provider networks that get keep getting worse every year.

    If you just cherry pick some nice-sounding benefits and craft your questions to avoid the big picture, of course people are going to say they want it. But you already knew that.

    1. We’re headed for single payer, but if you look at national health spending, and cost per person, the growth rate from 2010-present is lower than pre-2010. The 2013 2.9% increase is the lowest ever, so far as I can tell. Which is pretty remarkable, since boomers were already aging out at that time.

      1. “…if you look at national health spending, and cost per person…”

        That’s a terrible metric.

    2. ‘I demand evidence’
      ‘Also all the polling I disagree with is misleading.’

      Well, that’s all neat and tidy, eh?

      1. ‘Also all the polling I disagree with is misleading.’

        I take it you led with the straw man because you too don’t care to provide any examples of actual polling you feel fairly establishes JP’s point. We’re all adults here, posturing aside, and I’m sure were we discussing this over a beer we could readily agree that polling results readily can be and regularly are steered by the composition, ordering, and context of the questions. So, let’s see the details behind the “polls show people generally like the ACA” meme. The ones I’ve had the pleasure of observing thus far basically collapse into “I like free shit” (or, at best, “I like it when other people get free shit as long as Someone Else is buying it for them”), which is both utterly unsurprising and unhelpful to the discussion at hand.

        If you have something that attempts to truly and even-handedly measure the favorability of the overall regime — warts and all — let’s see it. I’m not holding my breath.

        1. So, let’s see the details behind the “polls show people generally like the ACA” meme. The ones I’ve had the pleasure of observing thus far basically collapse into “I like free shit”

          Between calling polls a meme, and ignoring anything as wanting things you don’t want people to want, you’re still assuming your answer.

          The military could also be free shit, but that ones okay, no?

          Here’s a recent poll

          1. The military certainly is “free shit” for overpaid contractors.

        2. Right. The support collapses when people are told their taxes would have to increase by X percent. Buying votes with other people’s money is not new. Every society that practices it eventually collapses. It’s just a matter of when for us.

    3. “You’ve sprinkled this tripe throughout the discussion, predictably without providing a shred of evidence that a majority of Americans like the skyrocketing premiums and deductibles ”

      Medical insurance premiums were skyrocketing for a couple of decades prior to ACA passing.
      Public-opinion polls showed a majority of Americans supporting ACA, which is why the D’s ran on protecting it in the last election. How’d they do?

      1. Public-opinion polls showed a majority of Americans supporting ACA, which is why the D’s ran on protecting it in the last election. How’d they do?

        Unsurprisingly, you’re dancing around my question: Let’s see the actual polls (both data and methodology; routinely published for reputable polls) that you’re saying “showed a majority of Americans supporting ACA,” so we can all understand what those polled actually said they like. You don’t mind sharing that, do you?

        1. There’s this thing called “Google”…

          1. That’s an attempt to push the duty to prove (or at least support) one’s assertions onto the other party.

      2. Public-opinion polls showed a majority of Americans supporting ACA, which is why the D’s ran on protecting it in the last election. How’d they do?

        Pretty bad, all things considered.

        With 90+ negative coverage of Trump/republicans in nearly every media format, Democrats saw their share of the Senate shrink–in places where they thought they were secure. In the House, they managed to eke out a slim majority–with their most vaunted ‘victories’ being people running unopposed or nearly unopposed in deep blue areas.

        In governorships, some noted pro-ACA candidates lost in places where even Republican governors had supported the ACA.

        So, all things considered, a strong ACA support stance seems to have been bad for Democrats.

  15. Is there a single conservative here gullible enough to believe that America will not provide universal health care relatively soon?

    1. We only gotta delay it twelve years, dude.

  16. but if you look at national health spending, and cost per person, the growth rate from 2010-present is lower than pre-2010

    If by “national health spending” you mean dollars that hit the pockets of providers, that’s just the flip side of all the points I raised and is utterly unsurprising. If you shrink the pool of doctors you can see without pulling your own money out of your own pocket, and then make the potential out of pocket exposure a material portion of a family’s disposable income, of course utilization is going to go down.

    I don’t at all disagree that making people more cost-conscious with their medical spending is a good thing overall (as long as people continue to spend to get care they actually need, which is a tricky line to calibrate). But if that’s the best result you can identify out of this bureaucratic boondoggle, (1) don’t pretend it’s generally made the insurance world puppies and unicorns; and (2) there were much less invasive ways to reach that sort of result. (That’s the royal you — I understand your opening clause to effectively concede that the current system is a hopeless mess and needs to be jettisoned, predictably for something even more centrally controlled. And they called us cynical for predicting back at the beginning that was the intent.)

    1. ” they called us cynical for predicting back at the beginning that was the intent.”

      They passed the thing without an R’s coming on board. If their intent was a large, centrally-controlled bureaucracy, why didn’t they pass that, instead?

      1. If their intent was a large, centrally-controlled bureaucracy, why didn’t they pass that, instead?

        You can’t be serious. Pelosi barely held together enough votes to pass what she did. There wasn’t even close to enough political will to take that big of a leap at that point. And I know you know that.

        1. So the intent wasn’t to go to a large, centrally-controlled bureaucracy, then?

          Well enough.

          1. No, it was, but the first step in doing that was to bring the whole system crashing down, so that the people who liked their policies wouldn’t have them anymore, and so would stop being an obstacle.

            The ACA is the wrecking ball that brings the whole system crashing down, to clear the way for single payer. Multiple provisions got put off during Obama’s time in office, (In defiance of the actual text of the law.) in order to make that crash happen on somebody else’s watch.

  17. Surely the constitutionality of Obamacare does not rest on a feeling that people need health care.

  18. From each according to his whiteness, to each according to his brownness

  19. I think it will tend to hasten the demise of Chevron deference. It tends to make a mockery of the notion that executive branch agencies are disinterested parties who apply the law neutrally and whose legal conclusions are deserving of any sort of special trust. Indeed, it tends to make a whole series of Supreme Court doctrines deferring to executive branch agents, including qualified immunity, look positively naive.

  20. That said, I think we’re being haunted by Justice White’s majority opinion in Bowers v. Hardwick,

    “Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution’s text involves much more than the imposition of the Justicess’ own choice of values on the States and the Federal Government…”

    When that striving ceases, then the logical corollary is that the states and the federal government will do their best to impose their values on the courts. And for the federal court, the logical approach is first, to announce and argue those values, and second, to appoint Justices who share them. After all, if constitutional jurisprudence consists of justices imposing their values on the public, why not have justices who will impose yours? Once imposed they become, for legal purposes, as much what the constitution says as anyone else’s.

    Why should it make the slightest bit of difference that under current precedent the AG’s position is absurd? New Justices, new values, new precedents, new positions.

    What a previous majority dismissed as “facetious” then becomes the law of the land. A new majority overturned Bowers v. Hardwick. Why can’t a new majority overturn the precedents about standing and the other technicalities that stand in the way of the Supreme doing the right thing here and imposing what the President and AG consider the right choice of values on us?

    1. The left is brazen about announcing that their plan is to pack the courts, overturn Citizens United and Heller, and impose their one-world global socialism.

  21. Kill it. I don’t care how. The less government rules, agencies, and meddling the better. That’s what any libertarian would want. Return control to the people and the states.

    1. Roper: So now you’d give the devil the benefit of law?

      More: Yes. What would you do? Cut a great road through the law to get after the devil?

      Roper: I’d cut down every law in England to do that.

      More: Oh, and when the last law was down, and the devil turned on you, where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man’s laws not God’s, and if you cut them down — and you’re just the man to do it — do you really think that you could stand upright in the winds that would blow then?

      1. Nonsense. The law has cut a great road into our freedoms. Cutting through the chains is not the same as forging them.

        1. You are mixing up ends and means. You are very committed to the goal of ending the ACA, and thus argue any means are appropriate, regardless of legitimacy.

          Such is the proverbial road to hell.

      2. The problem I’ve always had with this is that to get after the Devil seems to fall off somewhere to be replaced by the weird notion that this special circumstance–to get after the Devil will somehow be extended to everyone.

        Or that a law can not by set aside and replaced.

        Or that liberty and freedom are worth the tearing asunder of unjust and evil law.

        Because that’s the problem with the ACA–and with all socialized medicine.

        It is unjust, and it is evil.

        It turns into mandated ‘euthanasia’ for the unproductive before too long. The monster it is named for actually stated this openly–and the scum that loved him applauded–“sometimes, grandma should just take the pill….’

        Extremism in defense of life, liberty, and the pursuit of happiness is no vice.

  22. If trump actually manages to get rid of ACA I will vote for him.

  23. I’m not sure why the legal “experts” cited in this blog post consider the opinion so difficult to understand.

    The ACA was a constitutional exercise of Congress’ power to tax citizens.

    Congress repealed the tax.

    If the ACA is not a tax (because Congress repealed it) then the ACA is not an exercise of Congress’ power to tax people.

    The only remaining authority for the federal government to impose the ACA on the citizenry would be under the Commerce clause. A majority of the Supreme Court rejected that argument.

    The only argument I see in this blog post is “orange man bad.” While that may be enough to get you a guest spot on CNN, most of the professional legal community looks for something more. Although maybe that’s the purpose of academia – to give otherwise unemployable lawyers a place to bandy about their ridiculous theories of the law while the rest of us can get on with actual work.

    1. The ACA was a penalty, not a tax, regardless of Roberts’ ruling, and if a tax, was unconstitutional because it originated in the Senate, not the House.

  24. I hope by the 2020 election we are all tired of Trump’s bombast and ego games.

    1. OK, but the only practical way to get relief from Trump’s bombast and ego games would be to replace them with the bombast and ego games of Harris, Booker, or maybe even Biden.

  25. how fucked is it that we have two fake libertarian writers crying

  26. read the article to see a fake libertarian writer and never trumper, Alder, who has been highly critical of chevron deference lament the fact that courts might not be so deferential to the executive branch in the future because trump. a more craven, feckless, principle-free set of individuals than the conspirators is hard to imagine.

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  29. Luckily, the USA will be going back to free market health insurance and health care.

    Pay for minor medical stuff in cash and have cheap catastrophic health insurance for major medical stuff.

    Americans would have more money to pay cash for medical visits because there would be no Medicare, Medicaid, or ObamaCare taxes to pay anymore. By over $1 trillion dollars a year.

  30. If only someone would object to the fact that this bill to raise revenue (tax) originated in the Senate.
    But I guess words that actually appear in the Constitution are not as important as the magic words only SCOTUS can find.

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  33. Yes, anybody that understands the Constitution would support that position.

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