Are Con Law Professors Wrong Again About the Individual Mandate?

The state AG's current challenge to Obamacare is stronger than they say

|The Volokh Conspiracy |

In late 2009, as Congress debated the Affordable Care Act (ACA), Todd Gaziano, Nathaniel Stewart, and I contended that the bill's individual insurance "requirement" or mandate was unconstitutional because it exceeded the combined Commerce and Necessary and Proper Clause powers of Congress. Our argument was dismissed as frivolous by most constitutional law professors. It was not until District Court Judge Judge Henry Hudson held that the insurance mandate was indeed unconstitutional that a few constitutional law professors began taking the argument seriously. But in truth, most continued to disparage it. Why?

In a lengthy Florida Law Review article, I tried to explain why most law professors missed the boat. But one reason stands above all others: Our argument rested entirely on existing Supreme Court doctrine; and somewhat surprisingly, some professors did not fully understand the Court's post-New Deal Commerce Clause doctrine. Like those who read the Constitution for what they want it to say, these professors read these post-New Deal cases for what they wanted them to say. 

Therefore, there was a degree of vindication when, in NFIB v. Sebelius (2012), five justices entirely endorsed the Commerce and Necessary and Property Clause analysis we had formulated in 2009. Of course, in NFIB, the Court ultimately upheld the Affordable Care Act when Chief Justice Roberts–alone–invoked a "saving construction" of the "penalty" enforcing the "requirement" to buy private health insurance.

The Chief Justice held that, because the "penalty" could be construed as a tax (in important part because it raised revenue for the Treasury), the ACA could be upheld. Crucially, he denied that reading the "penalty" this way was the best or natural reading of the statute. ("[T]he statute reads more naturally as a command to buy insurance than as a tax….") Instead, construing the "penalty" as a tax was merely a "fairly possible" reading, which turned out to be good enough given the doctrine of "constitutional avoidance." ("Granting the Act the full measure of deference owed to federal statutes, it can be so read….")

We are now witnessing a similar social phenomenon. In Texas v. United States, a single district court judge, Judge Reed O'Connor, has accepted the argument made by state attorneys general: because the Tax Cuts and Jobs Act of 2017 (TCJA) zeroed out the "penalty," it is no longer "fairly possible" to construe the "penalty" as a tax. This is because the "penalty" no longer fits the definition of a tax articulated by Chief Justice Roberts in NFIB v. Sebelius. Judge O'Connor then further held that, since the insurance requirement was unconstitutional, and was inseverable from the rest of the ACA, the ACA in its entirety was now unconstitutional.

The response among law professors to the argument of the state AG's, and the ruling by this lone district court judge, is remarkably similar to their reaction to the rulings of Judge Hudson and, later, District Court Judge Roger Vincent. Once again, they are incredulous; dismissing the argument as silly or ludicrous. 

Could they be right this time? 

To answer this question, we have to distinguish between three issues: 

  1. the constitutionality of the individual insurance "requirement" or mandate in § 5000A(a) of the ACA after the "penalty" cum tax in § 5000A(b) was set at $0; 
  2. the standing of the plaintiffs to sue; and 
  3. whether the insurance requirement in § 5000A(a), if now unconstitutional, is severable from the rest of the ACA. 

In a series of coauthored blog posts, Professor Josh Blackman and I will maintain that, with respect to the first of these issues, the conventional wisdom of law professors is wrong once again, and wrong for the same reason as last time: these professors have read existing Commerce and Necessary and Proper Clause doctrines as they wish them to be, not as they actually are. In this case, however, it is the Chief Justice's reasoning and the Court's holding in NFIB v. Sebelius that they are misreading. 

As Josh and I will explain in our next co-authored blog post, the first of these three issues has already been decided by a majority of the Court: the individual insurance "requirement" in § 5000A(a) is unconstitutional. Only once this holding is understood can we then move on to profitably discuss the standing and severability issues as they relate to the ACA.

In a subsequent post, we will offer some insights about the standing issue–in particular, the injury-in-fact requirement–that draw upon a comparison of oral argument in NFIB with Chief Justice Roberts' analysis in his written opinion. A close comparison of the two supports the reasonableness of Judge O'Connor's analysis of standing. In a final, solo-authored piece, I will offer my thoughts on Judge O'Connor's severability analysis.

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  1. Interested layman rather than a lawyer, but reading NFIB it seems the first two are obviously true, and the third mere wishful thinking.

    Sure, the mandate in the original ACA wasn’t severable, but Congress effectively severed it by amendment years later, so Congress clearly meant it to be severable by their actions (assuming its not explicit in any of the amending language, if it is that just bolsters the point).

    The counter point, that Congress could have made it severable explicitly when amending and chose not to do so seems less convincing under any rubric where interpretations are to favor constitutionality, but I know I don’t know the details of the jurisprudence here.

  2. As far as the Supreme court goes, though, the only question is whether Roberts is still determined to save the ACA whatever it requires. If he is, he won’t have too much trouble finding another “saving interpretation”.

    1. Although he accused the government of wanting to include the citizenship question in the census for “pretextual reasons”, Roberts is a master of pretext when he knows what goal he wants to reach.

      1. Chief Justice Roberts resorted to ‘pretextual reasons’ because he was not straightforward enough to describe the government’s conduct and evidence as lies, choosing political correctness and partisan leniency instead.

        1. Did you feel this strongly about the IRS targeting of Tea Party groups, Fast & Furious, or Benghazi?

          1. You left out the Seth Rich and Vince Foster murders.

            1. If you’re implying that IRS targeting of Tea Party groups (which they admitted and apologized for) or that Fast & Furious and the non-response in Benghazi are conspiracy theories by equating them with Vince Foster’s suicide or Seth Rich’s very real murder (motives unknown), than I’m sorry benny, but that make you look like the kooky wingnut, not me.

              Point is, that went whoosh by you, is that the government lied in the IRS targeting, Fast & Furious, and the non-response in Benghazi, but since it was Rev’s progressive sisters in charge, he just didn’t have the same verve when calling out lies in defending the perfectly constitutional citizenship question on the census. Thing is, they never HAD to lie, which is why it is so sad.

              1. Yes, I noticed that last part myself. I wonder sometimes; Was that subtle sabotage by somebody who didn’t want the question asked, or just somebody being a bit too clever about producing an acceptable excuse for something that didn’t actually need an excuse to begin with.

                1. Was that subtle sabotage by somebody who didn’t want the question asked, or just somebody being a bit too clever about producing an acceptable excuse for something that didn’t actually need an excuse to begin with.

                  I think stupidity is an adequate explanation. No need to imagine Deep State conspiracies.

              2. Sorry dude, they’re conspiracy theories.

                In late September 2017, an exhaustive report by the Treasury Department’s inspector general found that from 2004 to 2013, the IRS used both conservative and liberal keywords to choose targets for further scrutiny.

                Benghazi has been investigated six ways from Sunday and they’ve got nothing.

                Fast & Furious was a dumb program started under Bush and dumbly continued under Obama, but the government having a dumb idea and executing it badly is not scandal, and no further evidence of an agenda has been turned up.

                1. Sorry dude, but you’ve not been keeping up on the latest news.

                  There has been large (3.5 mil)payouts from successful lawsuits from the IRS targeting. Juries of your peers don’t agree with your Alternet assessment.

                  Benghazi? Sorry bro, but Obama lied and people died. Pettifogging by the deep state doesn’t change the fact that it was a known lie that it was NOT riots started by some guy’s YouTube movie that had less than 100 views.

                  Fast & Furious? Again, your Buzzfeed level assessment of the situation is wrong. The Bush Era “Wide Receiver” program was cancelled because it was stupid, whereas Fast & Furious wasn’t, even the leftist site Politfact admits that they are not the same. It is known that the program was started to push for gun control (“Katie bar the door” as the emails said, once it was known the guns came from the US, as they assumed the public would howl for gun control).

                  So, in short, just because the media you consume stops covering something the minute Obama isn’t in office, that doesn’t mean the issue went away for the rest of us.

                2. “In late September 2017, an exhaustive report by the Treasury Department’s inspector general found that from 2004 to 2013, the IRS used both conservative and liberal keywords to choose targets for further scrutiny.”

                  And, that the IRS did different things in response to the conservative and liberal keywords. Let’s not forget that part.

                  1. And let’s not forget that the Tea Party groups were, as a matter of fact, breaking the law..

                    1. Nah, you need to read the actual article. While the BOLO had both liberal and conservative tags associated with it, the line agents could approve the Liberal groups, while the conservative groups couldn’t be.

                      Effectively this tied up the conservative groups with long (year, 2 year or more) delays for approval, while liberal groups weren’t.

                    2. My understanding, which could be wrong, is that applicants are granted the status while the application is pending. So the wait for a determination letter, while unpleasant, does not stop the applicant from doing whatever.

                      Oh, and they were in violation, you know.

              3. Not clear that it is “perfectly constitutional,” but even if it is it pretty clearly violated both the APA and the Census Act.

                1. How does it violate the census act?

                  APA is pretty clear, and as others have said, dumb.

                  1. The Census Act says the census can’t used to gather data that is available through other means. The citizenship data is available from administrative records and other sources. It also requires three years’ notice before adding a question, which clearly didn’t happen.

                    But hey, what do Alito, Gorsuch, Thomas, and Kavanaugh care about that?

                    I don’t understand what you mean when you say the APA is dumb. Do you mean the law is dumb, or that the violations are obvious?

        2. Because it wasn’t lies, which is why he couldn’t describe it as such.

          Thank you come again.

          1. Actually, it was lies, often repeated.

    2. Roberts won’t have to save it, Congress will simply pass a $1 tax and Trump will sign it into law. Trump secretly supports Obamacare because Josh Kushner is heavily invested in the ACA Exchanges through Oscar Health.

  3. If there is no tax, it is no longer a mandate, and thus no longer regulates inactivity at all. How does the reduction not destroy the original CC and N&P argument?

    1. It’s arguable that, though the penalty for not complying with the mandate has been set to zero, the law does still contain the mandate, and so people who don’t comply with it ARE still breaking the law. I’m sure a clever lawyer could concoct some kind of scenario under which failure to comply with the mandate could interact with some other law, to render you worse off, even though you weren’t liable for the penalty.

      For instance, suppose you’re on parole for some prior conviction; You’re required to be law abiding, or your parole could be revoked.

      You could get your parole revoked on the basis that you didn’t comply with the mandate!

      1. You’re failing to have an injury in fact, then.

        Plus, of course, you’re ignoring Congressional intent, which is the real reason this is being dismissed. Constitutional stuff shifts as it’s a living document. But statutes are much less so.

        1. Having your parole revoked isn’t an injury?

          The point is, the ACA doesn’t state that you shall obtain qualified insurance OR pay the penalty, (Which Roberts blew off actually being called a penalty by the law.) it states that you shall obtain qualified insurance. And then sets a penalty for failing to do so.

          If it had done the first, reducing the penalty to zero would arguably have repealed the mandate, because you were being given a choice, both sides of which were legal.

          But it did the latter, which means that failing to obtain the insurance is illegal, period, regardless of whether you pay the penalty. Because it’s a penalty, not an alternative. Speeding doesn’t become legal just because you pay your tickets.

          1. It’s thusfar only a hypothetical injury, not an injury in fact till you find someone it’s happened to.

            The point is you’re ignoring the clear intent of Congress to seize on a textual ambiguity and interpret it the way you want. They didn’t intend to repeal the ACA, and your textual gymnastics aren’t going to top that fact so long as there are other viable interpretations, which despite your straining there still are.

            1. That’s right, damnably, they didn’t intend to repeal the ACA. Even though they’d run on doing just that. Amending a law so as to make it unconstitutional doesn’t generally demonstrate an intention to repeal it. It demonstrates a lack of concern with constitutionality.

              The lack of such intent doesn’t render the amended law constitutional, though. The law still contains that mandate, and it is the mandate itself that is unconstitutional, whether or not Congress chooses to penalize the failure to comply with that mandate.

              Roberts, illegitimately, saved this law by declaring the penalty to be a mere tax, and the command that you obtain the insurance a mere alternative to paying that tax. I seriously doubt he intends at this late date to redeem his wrong and kill this obscene law. So the only real question here is what excuse he will conjure up to preserve it.

              1. So your current argument is that Congress affirmatively chose to make the ACA unconstitutional.

                Good luck getting that argument before the Court.

                Your final paragraph reveals what’s really going on, which is trying to get a second bite at the apple no matter how silly your argument has to be.

                1. No, my argument would be that Congress, generally speaking, doesn’t even consider it worth inquiring whether what they propose to do is constitutional. It’s simply not something they concern themselves with, they don’t have that much respect for the Constitution.

                  And I’m fine with getting a hundred bites at the apple. The apple in this case is rotten to the core, that such a mandate is ‘constitutional’ as long as Congress’s penalty for failure to comply can be construed to be a “tax” is a horrible precedent, which will eventually come back to bite us all if it is not killed.

                  1. If you admit you’re purely outcome oriented, why should I trust anything you posit as an argument you believe?

                  2. Are the various credits in the tax code constitutional, Brett?

                    What about itemized deductions?

                    This argument from nomenclature is ridiculous.

      2. That still brings in other questions in how to relate this to the original case. This came up then, too. The government before said you are fully compliant if you purchases qualifying insurance or pay the penalty/tax (because I don’t feel like arguing about this point again). Does zeroing out mean you now have to purchase to be compliant, or is it the same as before and you are compliant if you pay the relevant penalty/tax, which now happens to be zero.

        1. Spoiler alert?

          Barnett will argue that once the tax is set $0, per NFIB the law cannot be construed as a tax and therefore must be construed as a penalty. As such Barnett will conclude you are in violation of the law if you choose not to carry insurance with a zero-dollar penalty.

          In the unlikely event this case reaches SCOTUS, Roberts will concede that a zero-dollar charge for not carrying insurance precludes the taxing-power saving construction. However, he will argue there is another saving construction as you suggested: the law gives you a choice of either carrying insurance or having no consequences at all for not carrying insurance.

          1. Which would be accurate.

      3. Do people get parole revoked for getting a parking ticket, or filing their income taxes late?

        1. They do, if the legal system thinks they could afford to.

          1. Afford what? I’m not saying they don’t pay the ticket, or don’t file.

    2. Under N&P jurisprudence it is sufficient for the mandate to be useful in meeting the purpose of mitigating the negative impacts of adverse selection. A later Congress can decide those impacts are sufficiently mitigated without undermining the original argument.

      1. Current N&P jurisprudence is more, “convenient and, eh, whatever” jurisprudence. We should aspire to changing that, not embrace it.

        1. Mitigating the negative impacts of adverse selection goes beyond the “convenience” permitted by current jurisprudence.

          1. That’s the, “and, eh, whatever” part.

            1. You don’t believe the mandate was intended to mitigate against the impacts of adverse selection?

              1. He refuses to think about it. He has his fingers in his ears and is screaming, “I can’t hear you.”

                Of course the mandate is justified under the N&P clause.

    3. BECAUSE REASONS AND SHUT UP THAT’S WHY.

      That’s pretty much the argument.

  4. The difficulty as I see it is that when Congress sets the amount one has to pay to zero, one doesn’t have to pay anything.

    So it simply doesn’t matter whether that thing which one doesn’t have to pay is called a tax or a penalty.

    Similarly, when Congress “requires” people to do something, but then imposes no consequences if they don’t do it, it is merely giving people advice which they can choose to take or not. It’s a requirement in the same way it is when one’s preacher or one’s mother or the advice column says one has to do it.

    People may feel bad, even have feelings of guilt, when they don’t take Congress’ advice about how they should live. But that’s no more legally justiciable then when they don’t do what their mother tells them.

    1. Their are a lot of laws where congress makes some conduct illegal without setting a penalty but can be prosecuted with an interstate nexus, conspiracy, wire fraud, etc.

      Take the situation where someone gets alternative health insurance from an out of state insurer that doesn’t meet ACA mandates. Are the insurer and insured conspiring to violate the ACA? I’ve heard of more ridiculous theories that have been prosecuted.

      1. You’ll need to challenge as applied then, and wait for the law to actually operate like you’ve decided it will.

        Good luck with that.

      2. But nobody has ever claimed that not purchasing insurance could ever be prosecuted as conspiracy, wire fraud, etc.

        And Congress definitely provided penalties for these offenses, all carry imprisonment, fines, etc. accordingly, any conduct which comes within their definition most definitely carries a penalty. This is a totally different situation.

        One can’t reach the result one wants by simply making things up. One can’t say that since jaywalking is sometimes treated as a crime, and some crimes sometimes get the death penalty, it follows that jaywalking is a capital offense for constitutional purposes. The reasoning you are using here is frankly very similar.

        1. Take the most famous instance of the Congress outlawing conduct, and not specifying a penalty, the Boland amendment was a prohibition of spending intelligence funds on the Contras in Nicaragua, but not a criminal statute. Oliver North, Robert McFarlane etc, were all charged with conspiracy of violating a statute that didn’t specify any penalty.

          Depending on an as applied challenge to keep the government from enforcing an unconstitutional statute is quite a burden on the people. Since as Barnett points out the Supreme Court has already ruled the government can’t mandate commercial transactions, striking the law so it won’t chill the people’s legal right to choose their own health insurance options seems the best course. Laws have been struck that chill a woman’s right to choose have been stuck for a lot less.

  5. I’ll wait until the post to determine if I agree, but ultimately the big question isn’t whether the “requirement” is unconstitutional it is whether it is now a “requirement” at all. This ultimately may be a philosophy of law question that now has to be determined in actual law. But if there is a requirement but zero consequence of not abiding by said requirement, is it actually a requirement at all?

    1. “I’ll wait until the post to determine if I agree, but ultimately the big question isn’t whether the “requirement” is unconstitutional it is whether it is now a “requirement” at all. ”

      Perhaps the law itself has something to say about this?

      “(a) Requirement to maintain minimum essential coverage

      An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.”

      Yup, there’s that word, “requirement”. Seems to me that settles it, the ‘requirement’ is, legally, on the explicit terms of the statute, a requirement. “Shall” is not a term used in laws to denote things you have a choice about.

      Mind, “penalty” is not a term the law uses to denote taxes, either, so I doubt Roberts will care when this case reaches the Court.

      1. This whole argument is one of the silliest damn things I’ve ever heard. Talk about legalistic nitpicking about angels on a pin.

        The only thing that makes anything a requirement is the penalty attached for not doing it. No penalty, no requirement.

        Give it up, Brett, Barnett, and others. It’s totally stupid.

        1. It would make a great Monty Python skit, for sure, if it didn’t have to do with this horrific precedent that Congress can order people to buy private products, contained within a law that is not so gradually destroying the health insurance market.

          1. The only harm done to the health insurance system is due to Republicans undermining the ACA.

            Is it your opinion that we had just a terrific system before? If so, you’re wrong.

          2. Brett,

            Congress is providing a tax incentive purchase a private product. It does that all the time. The tax code is riddled with that sort of thing.

            All this talk of being ordered to do something is nonsense. Nobody has a gun to anyone’s head here.

  6. “. . . I will offer my thoughts on Judge O’Connor’s severability analysis.”

    Prediction: Members of Libertarians For Ted Cruz will find just about anything Judge Reed O’Connor writes to be not just libertarian, or “libertarianish,” or “often libertarian,” but positively dreamy.

    1. Prediction: Rev. Arthur L. Kirkland will find just about anything true to be false.

  7. It was, largely, hack conservative professors who never had a problem with the mandate until Obama decided to embrace it, making arguments to hack conservative judges who never had a problem with the mandate until Obama decided to embrace it.

    1. It’s kind of hard to have a problem with something nobody is seriously proposing. IIRC, this was, literally, the very first time Congress EVER mandated that people buy a private sector product.

      Doing that sort of thing wasn’t even a consideration before Obama.

      1. There was some debate in the first couple Congresses about making people buy guns to serve in the militia. It never went anywhere.

      2. And I think capt is pointing out that the mandate was some Heritage plan to counter Hillarycare.

        1. Formulated and publicly advocated by the Heritage Foundation, endorsed by most of the Republicans in the Senate, and actually put into practice by the Republican nominee for President.

          The VC’ers are quick to point out when a State provision violates the Constitution, or even a widely discussed legislative proposal. Total silence on the mandate until Obama decided to adopt it.

          The Volokh site posted an interview with Eugene Volokh where he flatly states that the important thing was to defeat the plan, not what argument was used.

          1. Given that the arguments about Obamacare were Congress exceeding it’s limited powers, I don’t see how a State previously doing it is analogous. States have police powers and are allowed to enact laws for the general welfare. Unless it conflicts with a civil right or liberty. Maybe it can be argued that it does, but not even the arguments in Sebelius were that.

          2. It was in fact GOP dogma, way before Obama, that it was critical to defeat any Democratic health insurance plan, because it might be popular. Typical Republican integrity.

        2. Which didn’t go anywhere in part because of the mandate. Sometimes the Heritage foundation comes up with some pretty stupid ideas.

          1. I agree with Brett, in that you can’t take what Heritage came up with (or advocates for now) as representative of “what conservatives want”. First, Romney was foisted upon us by dint of a rather poor field, and there is the all important state/federal distinction wrt the mandate. Secondly, it was widely said at the time of Hillarycare that “you can’t just say ‘no'” so they came up with that monstrosity.

            Now, to your point, is it night and day? No, but the parties switch sides on stuff all the time.

            1. You analysis does not explain the behavior of Roberts when it came time to decide the Sebelius case.

              Roberts was perfectly aware that Republicans were making a bogus, insincere argument which they would have been on the other side of had they been the respondent. (I still haven’t heard any VC’er criticize the Heritage plan — have you?) The setup was almost as bad as with Bush v. Gore, which ended with conservative judges, who had restricted equal protection arguments to race discrimination, suddenly declared a second protected class, namely Republican Presidential nominees. Rogerts saw how damaging that decision was to the Court’s reputation and didn’t want it to happen again.

            2. Romney was foisted upon us by dint of a rather poor field,

              So there were no decent Republican candidiates. I’ll buy that, but not the “foisted” part. It was the party’s choice. Nobody foisted Romney on you.

  8. A simple and universal principle often forgotten: Most human beings FIRST pick their preferred conclusion, THEN look for ways of justifying it.

    This is why so many judges (and bloggers) seem to use strained reasoning.

    It has been recognized elsewhere, but deserved to be pointed out again:

    Justice Roberts had a simple goal: take away power from Congress without upsetting Congress. He used the same clever strategy that had been used in Marbury v. Madison before: Take away the government’s power while at the same time giving the government a win, so the government is happy to have won and doesn’t mind have power taken away from it. Roberts had to find strained reasoning to achieve this, and did.

  9. the constitutionality of the individual insurance “requirement” or mandate in § 5000A(a) of the ACA after the “penalty” cum tax in § 5000A(b) was set at $0;

    This is an absurdity. There is no mandate without the penalty. To pretend otherwise is to live in cloud-cuckoo-land.

    Just as claiming the actual penalty, before it was removed, differed in any material logical respect from a tax credit, of which there are any number.

    All this maybe fun for Barnett, but it really is dumb.

    1. Except that I’ve already pointed out that the text of the law actually does establish a mandate, and removing the fine didn’t remove that part of the law.

      1. Yes, Brett. You’ve said that a million times, and backed it up with your typical absurd logic. “Indians not taxed.” “I wasn’t in the delivery room,” and other examples.

        Say it again and it’s still nonsense.

      2. Except you admit you’re arguing in bad faith:

        And I’m fine with getting a hundred bites at the apple. The apple in this case is rotten to the core, that such a mandate is ‘constitutional’ as long as Congress’s penalty for failure to comply can be construed to be a “tax” is a horrible precedent, which will eventually come back to bite us all if it is not killed.

  10. I also want to leave this other thought I had regarding severability.

    I don’t think anyone is right focusing that question on the ACA (which in honesty likely means I’m wrong, but I’d like to hear the arguments why). I think if found unconstitutional the proper remedy is to go back to the status quo, that means with the original penalty, and focus severability on a different act. Here is why.

    1. There are two bills/acts here. A) The ACA and B) the TCJA.
    2. While colloquially we say the TCJA amended the ACA, that is actually incorrect. The ACA was duly enacted and only could have been amended before that. What the TCJA amended was the US Code, particularly here the section where the penalty/tax was codified. This is an important distinction
    3. The ACA has already been declared constitutional. Whether right or wrong, I think wrong, is irrelevant for purposes of this analysis. What is currently being litigated as unconstitutional is not the ACA but the amendment in the TCJA
    4. The ACA, including it’s penalty/tax provision, remains good law and can only be amended by a subsequently enacted valid law.
    5. If TCJA “zeroing” is a constitutional violation it is invalid and the original ACA penalty/tax provision is then still the law.
    6. Severability is to focus on whether the law would have been enacted if not for the unconstitutional provision, or if the law can work as designed without the unconstitutional provision. Importantly, the law in question here then should be the TCJA not the ACA. The question is whether the TCJA would have been enacted without the unconstitutional “zeroing”

    I welcome counter arguments to this. And as far as I know it hasn’t been raised, which as I said above likely means I’m missing something. But if I am right then the conservatives pushing for unconstitutionality may actually make it worse for themselves.

    1. I think that’s right, but I don’t know what remedy would follow.

      The TCJA isn’t itself unconstitutional, and it can’t be: setting a penalty to $0 cannot be a violation itself. Instead what’s unconstitutional is the combination of ACA+TCJA. What’s the remedy when two individual acts are independently lawful, but not lawful taken together?

      1. I would think the amendment that caused the unconstitutionality (the TCJA) gets invalidated and the ACA retains its place as good law (meaning the penalty it enacted is the one that is on the books). If that isn’t the remedy you are getting rid of a duly enacted law without a ruling of it being unconstitutional (the ACA isn’t per Sebelius) or a valid amendment (the amendment caused it to be unconstitutional and therefore invalid). I would think for a duly enacted law to come of the books one of those two methods would have to have happened (I guess there is also sunset provisions in the original law but that certainly isn’t an issue here).

  11. What difference, at this point, does it really make?

    The ACA has gutted the individual insurance market. The American public has now accepted that denial for pre existing conditions is wrong, meaning we cannot have affordable insurance for healthy people anymore. The health insurance “market” is fubar in the USA. The damage has been done. I believe this was intentional, not an unintended consequence like most statist policies usually lead to.

    1. we cannot have affordable insurance for healthy people anymore.

      You really don’t understand health insurance at all.

    2. The destructibility of employer-provided health insurance is what screwed up the market. If you make all medical costs tax-deductible, you get employers out of the insurance business, and restore the market.

      1. I agree providing you aren’t considering OTC medication as medical costs. That would incentivize some dangerous practices while simultaneous indirectly subsidizing those drug makers.

  12. Reading this, one might almost come away thinking that Randy’s argument won the day in NFIB v. Sebelius. As a reminder: it did not.

    I don’t really expect Randy or his co-authors to approach this question honestly or in good faith, given that he has chosen (for instance) to describe Roberts’ opinion on the constitutionality of the mandate as a “decision” of a “majority” of the Court. This, of course, is false. Roberts’ opinion on this was his alone; the other justices who would have held similarly did not join that opinion but rather the dissent. So, while it is true to say that a majority of justices would likely have held that the individual mandate was not a constitutional exercise of Congress’s CC powers or within the limits of the N&P clause, it is false to describe this as the Court’s “decision,” since in fact the Court made no binding “decision” in this respect.

    I realize, of course, that Randy, Ilya, and others have tried to make more of Roberts’ opinion than it is – more than mere “dicta,” they claim that it is necessary to cue up the constitutional avoidance doctrine and to support the Court’s actual conclusion. But this results in an absurdity. If it were the case that the CC/N&P opinion was necessary for the “tax” conclusion, then it would have been the case that the individual mandate would have failed as an exercise of the “tax” power if no CC/N&P claim were made (and rejected). Which would mean that the individual mandate ended up being deemed “constitutional” only because Congress happened to overreach its constitutional authority in multiple respects.

    So, what this amounts to, Randy, is really just a continued claim for scholarly relevance, as your pet project continues to linger on in the courts due to an administration no longer interested in vigorously defending duly enacted law.

  13. […] posts (all but one with Josh Blackman) expressing a slightly different view of the case. (See here, here, here, and here.) As I’ve already blogged on many of the issues raised in these posts, […]

  14. […] posts (all but one with Josh Blackman) expressing a slightly different view of the case. (See here, here, here, and here.) As I’ve already blogged on many of the issues raised in these posts, […]

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