Obamacare

Texas v. U.S.: Why the Individual Mandate is Still Unconstitutional

Understanding NFIB v. Sebelius

|The Volokh Conspiracy |

[Note: This post was coauthored with Professor Josh Blackman.] Last December, in Texas v. United States, Judge Reed O'Connor found that the entire Affordable Care Act was unconstitutional. (One of us, Josh Blackman, wrote about the decision here and here). The Court concluded that the Tax Cuts and Jobs Act of 2017 (TCJA)–which reduced the ACA's shared responsibility payment to $0–rendered the individual mandate unconstitutional. 

We have our own quibble with how Judge O'Connor framed both the issue and his conclusion, which we will develop below. But, when properly reframed, we agree with his holding that the individual insurance requirement is unconstitutional. (What follows from that conclusion is a distinguishable issue.) 

In our view, the individual insurance mandate in § 5000A(a) did not become unconstitutional when the penalty was reduced to zero; it had already been held to be unconstitutional by five justices in NFIB v. Sebelius (2012). Chief Justice Roberts wrote: "Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase health insurance, neither can it be upheld as a "necessary and proper" component of the insurance reforms. The commerce power thus does not authorize the mandate." (Our emphases added.)

Instead, by adopting a "saving construction" of the "penalty" as a tax, Chief Justice Roberts upheld the "penalty" in § 5000A(b)–now zeroed out by the TCJA–and § 5000A as a whole–not the insurance mandate in § 5000A(a). Roberts alone was the swing vote, combined with the reasoning of the block of four progressive justices who saw no constitutional problem with the individual insurance mandate itself. Only Roberts rested his reasoning on a saving construction of the "penalty" as a tax. He, and he alone, justified adopting this construction on the ground that the insurance "requirement" or mandate was unconstitutional. As he wrote:

[T]he statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction. (emphases added.)

So the "requirement" or "command" in § 5000A(a)–that is, the mandate–was dead. Long live the "penalty" in § 5000A(b) and § 5000A as a whole as a tax. However, if the "penalty" in § 5000A(b) can no longer be read as a tax, then neither can § 5000A as a whole. And, because of the holding of Chief Justice Roberts and the four other conservatives the mandate in § 5000A(a) was, and still is, unconstitutional. The mandate was declared constitutionally dead in 2012 and, like the parrot in Monty Python, the mandate remains dead to this day. To paraphrase John Cleese: The Mandate is "bleedin' demised. It's passed on. This [mandate] is no more. It has ceased to be. It's expired…. This is an" ex-mandate.

Critics of Judge O'Connor's, however, contend that he fundamentally misread NFIB v. Sebelius. They argue, first, that Chief Justice Roberts upheld the insurance mandate as a tax because the mandate itself imposed "no legal consequences" other than the payment of the penalty. That is, people merely had a choice between buying insurance, or paying a non-coercive penalty cum tax Those who choose either path have "fully complied with the law." Second, the tax is now zero, which eliminates the only legal consequence of failing to purchase insurance.  Now, the only choice left is to not buy insurance, in which case a person has still "fully complied with the law." Third, the rest of the ACA is unaffected by lowering the tax to zero. 

We think the critics, rather than Judge O'Connor are misreading NFIB. Their reading of NFIB is all-too-common, and is one that we have both encountered repeatedly over the past seven years since the case was decided. However, this reading of the case fails to account for the precise framework of the saving construction. Judge O'Connor stated it well:

It is critical to clarify something at the outset: the shared-responsibility payment, 26 U.S.C. § 5000A(b), is distinct from the Individual Mandate, id. § 5000A(a). For one thing, the latter is in subsection (a) while the former is in subsection (b).

Judge O'Connor added:

[T]he Supreme Court's reasoning in NFIB, all hinge on an understanding that the Individual Mandate and the shared-responsibility payment are two very different creatures. The saving construction in NFIB [of § 5000A] was available only because § 5000A(a) triggered a tax. And § 5000A(b) was a tax because it produced some revenue for the Government.

Our analysis, which supports Judge O'Connor's holding, can be summarized with three premises. 

First, Chief Justice Roberts determined that the individual mandate in § 5000A(a)–standing by itself–imposed a legal obligation to purchase insurance. He then held that this "command" or mandate was unconstitutional–without regard to the penalty in § 5000A(b). Specifically, he held that an individual purchase "requirement" cannot be supported by Congress's powers under the Commerce and Necessary and Proper Clauses. Roberts's holding on § 5000A(a) was a crucial step that enabled him to adopt the "fairly possible" reading of the penalty in § 5000A(b)–and § 5000A as a whole–over its natural meaning. 

In this crucial respect, Chief Justice Roberts swing opinion was in agreement with the four conservative justices (Scalia, Kennedy, Thomas, and Alito) to form a five justice majority on this issue. The conclusion that the individual insurance "requirement" is unconstitutional was true in 2012, and remains true following the TCJA. 

Second, invoking the doctrine or "duty" of judicial deference to Congress, Chief Justice Roberts tried to avoid a finding that the core of the ACA was unconstitutional. To do so, he held that the "penalty" in § 5000A(b), which enforces the insurance "requirement" in § 5000A(a), could be read as a tax because it resembles a tax–namely it raises revenue as part of the usual income tax process, and it was not set at a punitive or coercive level. For these reasons, the "penalty" can be treated as a tax "incentive" rather than as an actual penalty enforcing a requirement or command (which would be unconstitutional). 

In other words, due to his "saving construction," there is no longer an actual mandate in the ACA. (As we discuss below, Roberts's opinion is not always precise in using the term "the mandate," which muddied this point.) Rather, he held that § 5000A as a whole can be read, not as a command, but as merely giving a person a choice between buying private insurance or paying the (noncoercive) tax. 

Roberts' decision to treat the penalty as a tax was bolstered by the government's representation that there were no "negative legal consequences" for going uninsured, beyond paying the penalty. As Roberts wrote, "[n]either the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS." Roberts's reasoning makes a critical distinction between an insurance requirement which makes it unlawful to go uninsured, and a tax, which need only be paid. However, because of the TCJA there is no longer any payment due to the IRS. This raises the critical question: can the penalty and § 5000A still be read as a tax? 

Third, in NFIB, Chief Justice Roberts held that it was "fairly possible" to read the penalty imposed on the uninsured as a tax. After the penalty was set to zero, is it still "fairly possible" to read it as a tax? Along with Judge O'Connor, we think not. Because the exaction no longer raises revenue–one of the two key components of Chief Justice Roberts' analysis–the saving construction topples.

Because the $0 exaction can no longer be construed as a tax, we are left with the conclusion of our first premise: the individual mandate in § 5000A(a)–standing by itself–was held in NFIB to be an unconstitutional command to purchase insurance. Five justices agreed that this authority cannot be supported by Congress's powers under the Commerce and Necessary and Proper Clause. 

Crucially, in NFIB, Chief Justice Roberts did not rest his Article I analysis of § 5000A(a) on whether the mandate carried with it legal consequences. The enforceability of the mandate did not enter into this stage of his analysis. Congress lacks the power to require someone to buy insurance, regardless of what other legal consequences follow–or don't follow–from such a legal requirement. Judge O'Connor reached this exact conclusion about the mandate. And we think he was correct to do so, if for no other reason than that NFIB is binding precedent on inferior court judges.

There is one more argument we need to address. The language in Chief Justice Roberts's opinion does not always precisely track his reasoning. This disparity may be attributed to the hasty manner in which the opinion was drafted. According to several reports, Roberts switched his position sometime after oral argument. We surmise that he had to write large portions of the opinion rather quickly, and without the benefit of constructive feedback from any of the eight other justices–none of whom joined this portion of his reasoning. 

At any rate, in his opinion, the Chief Justice writes: "The question is not whether [the Solicitor General's reading of the mandate] is the most natural interpretation of the mandate, but only whether it is a 'fairly possible' one. . . . The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read. . . ." (emphases added). Nor is this a mere slip of the pen. Later he writes, "Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one."

We concede that "the most natural interpretation" of this language is that Chief Justice Roberts held that "the mandate" was constitutional as a tax, but that is not the only "fairly possible" reading of the reasoning of his opinion. When that reasoning is taken into account, we think the Chief Justice's opinion is best read to hold that the mandatory "requirement" in § 5000A(a) is unconstitutional (see above). By "the mandate," we think the Chief Justice is referring to § 5000A as a whole, which he concludes is "fairly possible" to construe to be providing covered taxpayers with an option to buy health insurance or pay a modest, noncoercive tax. 

Roberts explained: "Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power." Had the Court upheld an actual requirement or command to buy private health insurance, Roberts would have needed to recognize such a "new federal power." Instead the Court "determine[d] that Congress has used an existing one"–in particular the power to provide noncoercive tax incentives. "Congress's use of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote, for example, purchasing homes and professional educations." Tax incentives are options, not requirements or commands, which is what made them constitutional for the Chief Justice.

Throughout his opinion, the Chief Justice referenced the constitutionality of § 5000A. For example, he wrote "Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax." (Emphasis added.) We read this citation as a reference to § 5000A as a whole.

But even if we are wrong about the terminology, at worst, the Chief Justice modified the meaning of "the mandate." Indeed, § 5000A(a) of the ACA only uses the term "requirement," and not "mandate." It is, therefore, fairly possible to read him as saying that the existence of a noncoercive "penalty" cum tax in § 5000A(b) transforms an unconstitutional mandatory "mandate" into a constitutional optional "mandate." The logic of his argument suggests that "the mandate" he says he upheld refers to §5000A as a whole and not to §5000A(a).

Reading the Chief Justice this way also explains why Judge O'Connor adopted the terminology he did: because the penalty cum "tax" converted the mandatory "requirement" into an optional "mandate," if the penalty cum "tax" is removed from the ACA, we are now left with the mandatory requirement of § 5000A(a). And five Justices have already held that this true mandate was unconstitutional under any of Congress's powers: the Commerce, Necessary and Proper and Tax Powers.

Terminology aside, we think that a close reading of Chief Justice Roberts's opinion in NFIB strongly supports Judge O'Connor's opinion on the unconstitutionality of the insurance mandate. This is the key: Chief Justice Roberts–together with the four conservative justices–has already held in NFIB that the standalone mandate in § 5000A(a) is unconstitutional, even though it imposes no collateral legal consequences. The Chief Justice–and only he–then relied on this holding to justify his invocation of the doctrine of "constitutional avoidance" to adopt a "saving construction" that was not the natural reading of the statute. He "avoided" the consequence of declaring unconstitutional the core of the Affordable Care Act only because the penalty in § 5000A(b) could be read as a tax (and thus so too could "the mandate" of § 5000A). 

The precise issue that Judge O'Connor decided was resolved in NFIB. Standing alone, the individual insurance "requirement" in § 5000A(a) of the statute is unconstitutional, and was so held in 2012. But in 2012, the requirement did not stand alone. It was followed by the penalty in § 5000A(b), which the Chief Justice found could be characterized as a tax. Today, § 5000A(b) no longer fits that characterization. In sum, because the unconstitutional "requirement" of § 5000A(a) now stands alone, Judge O'Connor was correct to follow the Court's holding in NFIB that this requirement is unconstitutional.  

We also think a close reading of oral argument reinforces this conclusion and assists in understanding the second issue raised by Texas v. United States: standing to challenge the ACA. We will turn to this topic in our next post.

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  1. The individual mandate is constitutional because it’s a tax on not having (qualified) insurance, and laying and collecting taxes is an enumerated power of Congress. This is not complicated.

    Setting the tax to zero doesn’t suddenly render the rest of the structure unconstitutional any more than having a 0% income tax rate for S corporations renders the rest of the tax code unconstitutional. It means that Congress intends to allow people to pay no penalty for failing to obtain qualifying health insurance now, temporarily, but reserves the power to reset the penalty if and when it finds a need to do so and chooses to do so (with Presidential concurrence, of course.)

    1. A tax is not a penalty, no matter how much it feels like one.

      I think Barnett is right, after NFIB there was no mandate, only a tax you were liable to pay if you didn’t have health insurance. But certainly not a mandate and a penalty because that is not one of congress’ enumerated powers.

      Whether it follows now that the rest of the ACA isn’t severable is a completely different question.

      Whether it follows that now that there is no tax is

      1. “A tax is not a penalty, no matter how much it feels like one. ”

        This premise is laughable. Lots of taxes are levied to influence behavior rather than to collect revenue. One of the challenges of tax reform is how much politicians love to inject giveaways into the tax code, because they get double mileage out of them… to the special interest that wants them and then again later when they talk about how much they love love love to cut taxes (hoping the rubes won’t notice that cutting taxes for somebody without also cutting spending means a tax increase for everybody else.)

        1. The premise isn’t really laughable. While taxes may be used to influence behavior, their primary purpose is to raise revenue. Rarely is a tax designed to shut down all the behavior (in which case it would fail to raise revenue). Moreover, paying a tax is considered socially acceptable and expected for the behavior.
          By contrast, penalties are designed to shut down the behavior entirely. Just “paying the penalty” to engage in the behavior is not considered socially acceptable. Let’s demonstrate with a few examples.

          1. The income tax. Designed to raise revenue. Generally not designed to reduce people working.
          2. Sales tax (general). Designed to raise revenue. Generally not designed to reduce selling items.
          3. Tobacco tax. Designed to raise revenue. Also designed, where possible, to reduce smoking to an extent. But not designed so high as to shut down smoking.
          4. Double parking penalties. Designed to eliminate double parking. Not raise revenue. Very high, and not considered acceptable to just “pay the penalty” and double park where ever you want.
          5. ADA Penalties. Designed to enforce compliance with ADA rules. Not designed to raise money. Not considered acceptable to just “pay the penalty”

          1. “While taxes may be used to influence behavior, their primary purpose is to raise revenue.”

            Gosh, it’s easy to reach the conclusion you want when you start by assuming your conclusion is true!

            Taxes don’t necessarily have the primary purpose of raising revenue. Sometimes it costs more to collect the tax than the tax raises, which makes laying that tax dumb but does not make it unconstitutionally not-a-tax.

            The Constitution grants Congress the authority to lay and collect taxes, not the authority to lay and collect taxes as long as it produces revenue for the Treasury. Whether or not the tax(es) in question raises revenue is therefore entirely irrelevant to whether it is constitutional. This also leaves the rest of your argument high-and-dry.

          2. While taxes may be used to influence behavior, their primary purpose is to raise revenue.

            The tax code has many features whose main purpose is to influence or reward behavior. Usually these are credits or deductions, but there is no logical distinction between paying less because you paid for child care child care, say, and paying extra because you didn’t buy health insurance.

            In both cases your tax bill is lower if you make the relevant purchase and higher if you don’t.

      2. Actually, way back when the NFA was reviewed by the Court, (a modest, noncoercive tax.) the position the Court took was that a tax was a tax, so long as it raised any revenue at all, and Congress called it a tax. (“purports to be an exercise of the taxing power”)

        Roberts position is that a penalty is a “tax”, so long as it raises any revenue at all, despite Congress calling it a penalty. Roberts is willing to claim Congress lied, in order to uphold the ACA.

        But now, the law still calls it a penalty, (The relevant clause of the law wasn’t removed.) only the penalty raises no revenue. So the last excuse for calling it a tax is dead.

        Anyway, all this reasoning assumes that Roberts, in his desperation to uphold the ACA, will not simply invent some new rationale. Which is, I think, the way to bet. I’m putting my money on his declaring the mandate severable.

        1. I’m with you on that last. Roberts’ only principle seems to be “don’t rock the boat” and he will go out of his way to keep the ACA going, even if it makes his previous malarkey look rational by comparison.

          This judgement, and all the appeals, are better thought of as someone pointing and laughing at a zoo monkey, trying to bait it into some new acrobatics.

        2. Of course it’s severable. It’s a phantom, for Pete’s sake.

    2. I happened upon the same thought myself, before reading it.

      Stipulating that the penalty is a tax, the structure of the tax remains in place. The rate of tax used to be positive, for the present it is zero, in future it may once again become positive. It seems far from obvious that zeroing the rate of a tax, after it has served to raise revenue, but leaving in place the legal structure which allows the rate to be increased later, to raise more revenue, stops it from being a tax.

      The main argument against this point is that it is mentioned by Mr Pollock, who is wrong on everything.

      1. AIUI, it was called a penalty by everyone until Roberts said that because it raised revenue, it could be thought of as a tax, if one wanted to, and he did.

        Now that it no longer raises revenue, Roberts’ rationale fails, and no one, including Roberts if he is consistent (!), calls it a tax.

      2. “The main argument against this point is that it is mentioned by Mr Pollock, who is wrong on everything.”

        You’re a genius.

  2. I think Justice Roberts went too far in deferring to Congress. When the law is “Buy insurance or pay a fine”, that’s clearly not a tax even if the IRS collects the money. If Congress wanted a tax, the law would say “We’re taxing you to pay for health insurance; buy your own instead if you want”. It’s the Court’s duty to prevent Congress from overreaching, not to rationalize it.

    1. “When the law is ‘Buy insurance or pay a fine’, that’s clearly not a tax even if the IRS collects the money.”

      If it were a fine rather than a tax, it wouldn’t be due until after you were convicted of not having insurance. But it isn’t. It is, in fact, a tax, due when you file your taxes and NOT requiring a conviction before it can be levied upon you.

      The law is “drive at a speed lower than the posted limit or pay a fine”. They can’t make you declare, at the end of the year, how many times you drove over the posted limit and send in the fine. But they can make you declare that you either had qualified insurance or paid the tax for not doing so.

      It’s a tax, and Roberts was correct about that.

      1. “If it were a fine rather than a tax, it wouldn’t be due until after you were convicted of not having insurance.”

        No, it would just be an unconstitutional fine, by virtue of not permitting you a trial.

        But if deference to Congress is to be anything more than an excuse to uphold unconstitutional laws, if Congress actually declares something to be a penalty, the judiciary should treat it as a penalty.

        1. ” if Congress actually declares something to be a penalty, the judiciary should treat it as a penalty.”

          Given a choice between a judiciary that treats things like what they are, and a judiciary that treats things like what they aren’t, just because Congress wrote it down that way, I don’t think I like your stated preference.

          For example, the D’s next gun-control bill might say “this law doesn’t infringe the right of the people to keep and bear arms, but anybody who keeps a gun is no longer allowed to bear it, and anybody who bears a gun is no longer allowed to keep it.” and, says you, the court would be bound to find no violation of the second amendment because it quite plainly says that it doesn’t infringe the right of the people.

    2. Penalty. Incentive. Tax. Let’s make this easy to stop politicians getting away with weasel words.

      If you have to pay because your heart is beating, it’s a tax.

    3. This is semantic idiocy.

      You are claiming that the exact same law, with the word “tax” in place of the word “penalty” would be just fine, but this one isn’t.

      That’s psychotic.

  3. If we accept your reading above it follows that nothing has changed and the law stands. On this interpratation the mandate was NEVER saved and was declared unconstitutional in NFIB. All that was left was a separate tax and O’Connor is dead wrong to read any consequence into zeroing that tax.

    Hence, O’Connor’s ruling striking down the ACA because the mandate can no longer be transformed into a tax doesn’t make sense. O’Connor should have simply held that the only effect of the change to the law was to set a tax to zero and nothing further followed because SCOTUS had already resolved the mandate issue and concluded (at least implicitly by reaching the saving construction for the penalty) that it was severabke.

    1. You’re missing the implication of the lack of a serverability clause.

      According to the OP, the Roberts decision didn’t sever the mandate. It declared that, thanks to treating the penalty as though it were a tax, and only because of this, the mandate could be saved by interpreting it as an offer to exempt you from a tax if you performed the specified act.

      Without the penaltytax, this reading of the mandate is unavailable, and it remains an unconstitutional command.

      Now the penaltytax is zero, produces no revenue, and thus the only basis for reading what is, explicitly, a penalty to be a “tax” is gone. And with it the only saving reasoning for the mandate.

      The reasoning here is both sound AND irrelevant.

      Sometimes people treat the judiciary as though it were some captive demon or Jinn in a fairytale, malevolent perhaps, but absolutely bound by the words of the law and logic, so that if you can validly prove it must rule your way, you’re going to win. If only.

      Proving to the Court that the words of the law are, by valid logic, on your side, doesn’t guarantee you a win. The Court is perfectly capable of making shit up to rule the way it wants.

      And that’s what Roberts did in his first ACA ruling, so why expect any different this time?

      1. The reasoning here is insane. Every bit of it.

  4. This is an” ex-mandate.

    I think you should have ended with “This is an ex-[mandate]”.

    This would have made it clear that the quoted passage used the “ex-” language and been consistent with “This [mandate] is no more” used earlier.

  5. King v Burwell – Roberts will misconstrue even the obvious statutory language to save ACA.

    FWIW – ACA has devastated the individual market. Fewer choices, higher costs, forced to change plans every year.

    1. Blame Trump for your troubles:
      “Despite concerns about the stability of the individual insurance market under the Affordable Care Act (ACA) raised in the past year, insurers saw better financial results in 2017 than they did in earlier years of the ACA, suggesting insurer performance was returning to levels before 2014, when new ACA insurance market rules took effect. While the market on average was stabilizing, recent policy changes have the potential to destabilize the individual market. As of October 12, 2017, the Trump Administration ceased payments for cost-sharing subsidies, which led some insurers to exit the market or request larger premium increases than they would otherwise. Open enrollment for 2018 was shorter than in previous years, and the Administration reduced funding for advertising and outreach.”
      Source

      I note that your personal troubles also ignore the vastly improved coverage rate for the American People.

      1. blame trump for problems that were occurring 3 – 4 years before he was elected
        Nice projection

        1. Read what I posted.

          If it weren’t for Trump’s sabotage, the initial uncertainty-driven instability would be over by now.

          1. Read what you posted –
            Try to read what I posted

            The problems began occurring at the start of implementation.

            Again nice projection

            1. “The problems began occurring at the start of implementation.”

              Then they were stopping happening. Then Trump stirred the pot up again, creating the uncertainty that actually causes the problem.

              1. To pollock & Sacarstro
                According to you two – the ACA created a utopian individual health insurance market with lower premiums, wider networks, more plans, etc, until Trump, F’d it up.

                Nice detachment from reality.

                1. No one is saying that, though nice strawman.

                  Your horrorshow is Trump’s fault; doesn’t mean the ACA is the best policy ever.

                  1. The horror show in the individual health insurance market place began with the passage of the ACA. Trumps actions was a mere goosebump in the F’d up in the castrophe.

                    Most be nice living in an alternate reality.

                    1. No studies of the post-ACA markets have reached the conclusion that you cling to so faithfully. And their reasoning is elementary and easy to understand. I’ve both linked and quoted the salient bits.

                      But you keep repeating yourself and plug your ears to anything that might go against your personal and partisan interpretation of events.

                    2. “The horror show in the individual health insurance market place began with the passage of the ACA.”

                      Insurance companies don’t like change. It messes up all their math. So when things change, they charge more money to make sure that if anyone comes up short, it won’t be them. This means that if there’s any changes that affect people’s health, individual health insurance policy prices will go up. Saying that this started with ACA reveals an utter lack of paying attention.

                2. “Nice detachment from reality.”

                  I agree. Your summary of my position is totally divorced from reality.

            2. Oh, come on. Don’t let your partisanship make you fail economics 101.

              Do you know how uncertainty works? And why it ends if policies remain stable?

  6. I’m surprised at the find of standing here, in light of Lujan. The plaintiff’s claim of a discrete and particular injury from a unenforced mandate would make Scalia turn in his grave.

    1. Barnett has just addressed that aspect in a new post. They suffer an injury from the mandate because it costs something to comply with it, and, even if the penalty for non-compliance has been reduced to zero, it still purports to be a mandate, not a suggestion. Failing to comply with it isn’t legal, even if a penalty won’t be imposed.

      1. You’re evidently blinkered by Randy’s clever two-step.

        If you read the actual post, the question of standing isn’t actually addressed in NFIB. It was addressed below but not argued before the Court. Randy tries to make more of this than it is – citing oral argument and contending that the Court must have assumed that the plaintiffs before them had standing in order not to have dismissed the case.

        But this is not generally how you read Supreme Court opinions. Nothing can really be inferred, as a matter of law, from the fact that the justices declined to address a legal argument whose validity would have to be assumed to properly bring the appeal before them.

      2. Well that’s hardly fair, I wrote this comment before his post 🙂

      3. “They suffer an injury from the mandate because it costs something to comply with it”

        But it costs nothing to not comply with it.

  7. […] course, as we discussed in our previous post, the penalty played a second important role in the so-called saving construction.  Specifically, […]

  8. I find the heavy mischaracterization of Roberts’ opinion on the constitutionality of the mandate under the CC/N&P clauses – as being the “decision” and “holding” of a majority of the Court – and the minimization of the Court’s actual opinion as to the constitutionality of the mandate under the Taxing Clause – as being upheld “only” by the reasoning laid out by Roberts – as indicative of the overall quality of this argument.

    This is trash, utter hackery. The other VCers should be ashamed.

    Never mind the absurdly close parsing of Roberts’ language in the opinion to support a predetermined outcome. It’s clear that Randy and his co-authors will make any argument to try to resuscitate a fight that – it’s worth remembering – they lost in NFIB v. Sebelius.

    1. It may be odd to claim that the mandate is not authorized by either the Commerce or N&P clauses is the holding of the Court when the five justices that reached the conclusion did not issue a majority opinion. And although I am unaware of precedent that acknowledges or refutes the claim, it makes logical sense to me.

      1. You don’t have to reach the question of whether the mandate is proper under the Commerce or N&P powers, once you note that it IS a proper exercise of the taxing power. Traditionally, the Court avoids answering questions it doesn’t have to answer. So if the question is “Is the mandate, as written, constitutional” and justices A and B say “yes, under Commerce Clause”, and justice C says “yes, under the necessary and proper Clause”, and justices D and E say “Yes, under the taxing power”, then the answer is “yes”, even without a unified opinion.

        1. You don’t understand Josh’s point.

          In NFIB, the opinion of the Court, joined by five justices, was that the mandate-tax was a valid exercise of the taxing power. That’s what the law is. Roberts also authored an opinion that the mandate-tax could not be a valid exercise of the CC/N&P powers, but that was his opinion alone, and joined by no other justices. That opinion is not the law. The four conservative justices wrote, in dissent, that the mandate-tax was not a valid exercise of the CC/N&P or taxing power, and so was unconstitutional, and went further to press that the entire ACA should be invalidated. That dissent is also not the law.

  9. […] course, as we discussed in our previous post, the penalty played a second important role in the so-called saving construction.  […]

  10. […] course, as we discussed in our previous post, the penalty played a second important role in the so-called saving construction.  […]

  11. […] two previous posts here and here, Josh Blackman and I contended that Judge O’Connor’s conclusion that the […]

  12. […] two previous posts here and here, Josh Blackman and I contended that Judge O’Connor’s conclusion that the […]

  13. All this still supposes that simply saying something is a requirement/mandatory makes it so. I fail to see how something can be considered mandatory if there is no consequence for not doing it. The Court has held in other areas that just because Congress calls it one thing they look at the substance (e.g. Apprendi). Congress can call it a requirement all it wants but nothing is actually required if no consequence follows from it.

    The notion that NFIB ruled section 5000(A)(a) unconstitutional without considering the the “penalty” is unfounded. There was clearly a consequence in the ACA of not obtaining qualified insurance so the requirement was in fact a requirement. There was no need to discuss that because there was debating that. That is no longer the case.

    As I see it the only question that needs to be answered is whether the government now takes the position that there are other consequences for not obtaining insurance. If they don’t there is no requirement and therefore nothing is unconstitutional. If the do then the Court needs to determine if that reading is reasonable (I think it is) and therefore it would be unconstitutional per NFIB. That is where the focus needs to be and no one seems to be asking that question.

  14. because the unconstitutional “requirement” of § 5000A(a) now stands alone

    Perhaps it is now “fairly possible” to read § 5000A as a whole as giving people the option of carrying insurance or facing no legal consequences for not carrying insurance?

    1. Perhaps it is also possible to read the zeroing out of the individual mandate tax as a temporary act, rather than as a permanent one… as when they occasionally set tax rates for repatriating foreign profits to zero (to encourage repatriation), and then reset the rate back to non-zero (to discourage offshoring of profitable operations).

  15. […] course, as we discussed in our previous post, the penalty played a second important role in the so-called saving construction.  Specifically, […]

  16. […] two previous posts here and here, Josh Blackman and I contended that Judge O’Connor’s conclusion that the individual […]

  17. As Barnett correctly pointed out, from the outset of the ACA taxpayers with income below the filing threshold have been subject to the mandate without having to pay any penalty. As I understand Barnett’s argument, these people always had the ability to sue and to have the mandate, as applied to them, declared unconstitutional.

    That strikes me as a very strange conclusion.

  18. […] two previous posts here and here, Josh Blackman and I contended that Judge O’Connor’s conclusion that the […]

  19. Perhaps I missed this, but is there any injury for not purchasing health insurance? I follow the logic that without the tax it’s an unconstitutional mandate, but without some other penalty to those who disobey, how could there be standing to sue?

  20. […] course, as we discussed in our previous post, the penalty played a second important role in the so-called saving construction.  Specifically, […]

  21. […] two previous posts here and here, Josh Blackman and I contended that Judge O’Connor’s conclusion that the […]

  22. […] two previous posts here and here, Josh Blackman and I contended that Judge O’Connor’s conclusion that the […]

  23. […] course, as we discussed in our previous post, the penalty played a second important role in the so-called saving construction.  […]

  24. Why did Roberts strain so hard to find the ACA Constitutional?

    Might it be that he was perfectly aware that Republicans were making a cynical, dishonest argument, just like in Bush v Gore, and he didn’t want to repeat that disastrous outcome?

  25. […] 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, […]

  26. […] The problem isn’t the Trump administration or his Department of Justice. It’s Obamacare, the outrageous individual mandate, and the bizarre “saving construction” concocted by Chief Justice John Roberts in NFIB v. Sebelius. It is frequently claimed in the media that SCOTUS upheld the individual mandate — and thus Obamacare — as a natural exercise of Congress’s taxing power. Nope. In fact, the law’s text and Obama’s lawyers argued that the mandate was constitutional pursuant to the Commerce Clause as well as the Necessary and Proper Clause. But a majority of the justices rejected that argument. Constitutional scholars Randy Barnett and Josh Blackman explain it thus: […]

  27. […] The problem isn’t the Trump administration or his Department of Justice. It’s Obamacare, the outrageous individual mandate, and the bizarre “saving construction” concocted by Chief Justice John Roberts in NFIB v. Sebelius. It is frequently claimed in the media that SCOTUS upheld the individual mandate — and thus Obamacare — as a natural exercise of Congress’s taxing power. Nope. In fact, the law’s text and Obama’s lawyers argued that the mandate was constitutional pursuant to the Commerce Clause as well as the Necessary and Proper Clause. But a majority of the justices rejected that argument. Constitutional scholars Randy Barnett and Josh Blackman explain it thus: […]

  28. […] The problem isn’t the Trump administration or his Department of Justice. It’s Obamacare, the outrageous individual mandate, and the bizarre “saving construction” concocted by Chief Justice John Roberts in NFIB v. Sebelius. It is frequently claimed in the media that SCOTUS upheld the individual mandate — and thus Obamacare — as a natural exercise of Congress’s taxing power. Nope. In fact, the law’s text and Obama’s lawyers argued that the mandate was constitutional pursuant to the Commerce Clause as well as the Necessary and Proper Clause. But a majority of the justices rejected that argument. Constitutional scholars Randy Barnett and Josh Blackman explain it thus: […]

  29. […] The problem isn’t the Trump administration or his Department of Justice. It’s Obamacare, the outrageous individual mandate, and the bizarre “saving construction” concocted by Chief Justice John Roberts in NFIB v. Sebelius. It is frequently claimed in the media that SCOTUS upheld the individual mandate — and thus Obamacare — as a natural exercise of Congress’s taxing power. Nope. In fact, the law’s text and Obama’s lawyers argued that the mandate was constitutional pursuant to the Commerce Clause as well as the Necessary and Proper Clause. But a majority of the justices rejected that argument. Constitutional scholars Randy Barnett and Josh Blackman explain it thus: […]

  30. […] The problem isn’t the Trump administration or his Department of Justice. It’s Obamacare, the outrageous individual mandate, and the bizarre “saving construction” concocted by Chief Justice John Roberts in NFIB v. Sebelius. It is frequently claimed in the media that SCOTUS upheld the individual mandate — and thus Obamacare — as a natural exercise of Congress’s taxing power. Nope. In fact, the law’s text and Obama’s lawyers argued that the mandate was constitutional pursuant to the Commerce Clause as well as the Necessary and Proper Clause. But a majority of the justices rejected that argument. Constitutional scholars Randy Barnett and Josh Blackman explain it thus: […]

  31. […] In Court: 5 Facts You Need To Know Are Con Law Professors Wrong Again About the Individual Mandate? Texas v. U.S.: Why the Individual Mandate is Still Unconstitutional My Concluding Thoughts on Severability in Texas v. U.S. In defense of the court decision striking […]

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