Obamacare

Will Another Court Vote to Strike Down Obamacare?

It sure looks like it.

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Nearly a decade after the passage of the Affordable Care Act, the health law is still tied up in the courts. You could be forgiven for having lost track of the latest in Obamacare lawsuit news, which now involves conservative states suing a federal government that agrees with them, and several former legal critics of the health law weighing in against the latest legal attack. Let's see if we can sort it out a bit. 

To recap: In 2012, the Obama administration, following some congressional findings related to the text of the Affordable Care Act, defended the law's individual mandate all the way to the Supreme Court by saying that it was not separable from the rest of the law. Chief Justice John Roberts, after privately flirting with signing on to a decision that invalidated the mandate, eventually penned a ruling upholding the mandate—but only as a tax penalty that raised revenue rather than as a compulsory purchase. 

In 2015, another suit, launched based in part on arguments made by Case Western Reserve Law Professor Jonathan Adler and Cato Institute Health Policy Scholar Michael Cannon, challenged the legality of the subsidies for most of the law's exchanges; once again, Roberts wrote an opinion upholding the law. 

In 2017, however, the GOP Congress, following several months of failed efforts to repeal the health law and replace it with some other health care legislation, passed the Tax Cuts and Jobs Act (TCJA), which reduced the individual mandate tax penalty to zero. In theory, the command to purchase insurance remained on the books. In practice, it was utterly toothless.

This legislation, however, gave rise to a new lawsuit, in which a group of conservative states, led by Texas, argued that because the individual mandate was only constitutional as a revenue-raising tax, the mandate—which, as a result of the tax law, raised no tax revenue—was now unconstitutional. Furthermore, they argued, because the congressional findings related to the original Affordable Care Act indicated that the law could not stand without the mandate, the entire law should be struck down. 

Somewhat surprisingly, last December, a District Judge in Texas agreed, and so, in turn, did the Trump administration, which took the rather unusual step of declining to defend any part of the law. Complicating things further, conservative legal scholars who had backed previous cases against Obamacare—including Cannon and Adler—were aggressively critical of the Texas-led suit.

To top it all off, there have been lingering questions about whether anyone, on either side of the case, has standing to challenge or defend the law at all. The toothless mandate caused no obvious injury to the red states challenging the law: Who is harmed by a mandate that penalizes no one? Yet if the administration declined to defend it in court, agreeing with the challengers that it should be struck down, wouldn't that mean that both sides of the suit were, in fact, on the same side? Lawyers from blue states who want to preserve Obamacare, plus the House of Representatives, argued the case for leaving the law in place. 

And that, more or less, brings us to where we are now. Like so many television shows in their later seasons, the Obamacare legal battle appears to have lost the plot. Yet it continues. 

In a nearly two hour hearing yesterday, a three-judge panel in the 5th U.S. Circuit of Appeals heard arguments about nearly all of this. Only two of the judges, both GOP appointees, asked questions, but they gave the distinct impression that they might be willing to invalidate the mandate. 

As for the rest of the law, which the lower court tossed along with the penalty, it was unclear. Much was made of the question of "severability"—as in, whether discrete components of the law can be severed from the whole—and what Congress intended and when. Judge Kurt Engelhardt seemed resistant to the idea that the courts should be asked to slice and dice congressional statutes. Why couldn't Congress address these issues on its own, and leave the court to decide other things? A fair enough question but, in some sense, Congress did exactly that by eliminating the mandate penalty while leaving the rest of the law unchanged. Messy or not, that is the resolution that the 2017 Congress arrived at, and that is the law as it stands. 

The outcome of these sorts of cases can be difficult to gauge from oral arguments, but after listening to the oral arguments, it sounded to me as if the judges were at least open to the idea of tossing out all of Obamacare along with the mandate. 

Which is, I think, a mistake. I have spent nearly a decade arguing that Obamacare is bad policy, but like Adler and Cannon, I think the Texas suit goes much too far. The zeroed-out mandate should be struck down; in its current form, it is hard to see how it is constitutional, since Roberts' ruling allowed it only as a tax that raised revenue. 

But as for the question of whether the rest of the law should go too, I continue to think that the Texas argument is an overreach and that the Trump administration has erred in declining to defend the law. 

It's true that the Democratic Congress that passed the law (and later the Obama administration) believed that the mandate was closely linked to the policy scheme of the original statute. But the operative question isn't what Congress believed in 2010 when the law was passed, or what the Obama administration argued in 2012; it's what Congress intended in 2017 when amending the statute. And it is exceedingly clear, both from the relevant statutory text, which zeroes out the mandate penalty while leaving the rest of the law intact, and the relevant legislative and political history (the Obamacare repeal effort failed, multiple Republicans said they intended to eliminate the mandate penalty, not the whole law), that the 2017 Congress intended to eliminate the mandate penalty and nothing else. There is no reason to believe that the elimination of the mandate penalty was, as one of the judges suggested today, a sneaky backdoor plot to get rid of the rest of the law via the courts. It was an effort to remove the mandate penalty—and that's it. 

It is also difficult, at this point, to make a convincing case that the mandate is an essential part of the law since it is no longer enforceable in any way. It is an empty provision, one that was effectively repealed by the tax bill, just as the 2017 Congress intended. It was reasonable to think of it as essential in, say, 2012, and had the mandate been stricken then, the rest of the law would have been called into question. 

But in the aftermath of the TCJA, it is, in the current legislative schema, obviously inessential. To strike down the entire law now would be to assume that the 2017 Congress did not know what it was doing when it declined to repeal the entire statute and instead got rid of the mandate penalty alone; it would be to ignore both clear congressional intent and the plain text and meaning of the law as it now stands. 

In the meantime, it is troubling that the Trump administration has declined to defend the law in court. While this sort of decision is not entirely unprecedented, it is certainly unusual, and it suggests that the administration has adopted a pick-and-choose sensibility to the federal laws that the executive branch is charged with upholding. Declining to defend a law is a close cousin to declining to enforce or implement a law, and it is worrying when an administration does so, regardless of the issue, and regardless of the partisan incentives involved. The job of the executive isn't to uphold the laws the president likes; it's to uphold the law, period. 

None of this makes Obamacare good policy or good law. But it is the law, and consequently, both the courts and the executive branch should treat it with the seriousness it deserves. 

Whatever happens with the current appeal, it's likely that the case will end up at the Supreme Court, again, with Chief Justice Roberts overseeing its fate, again. And that could happen as early as next summer, on the eve of a major election.

You can expect Democrats to make hay of this and attempt to use it to their political advantage. Indeed, they already are, with Senate Minority Leader Chuck Schumer (D–N.Y.) hosting a press conference this week to draw attention to the case. That may well work, given how effective the Democrats' health care argument was during the 2018 midterm elections. And if it does, Republicans will only have themselves to blame. The GOP has spent most of the last decade backing themselves into an increasingly small corner on health care policy, so that their position amounts to little more than pointing to Obamacare and saying, "not that." They squandered an opportunity to both pass and make the case for a real alternative in 2017, and that failure is now likely to haunt them. When asked what they will do if the court overturns the law, it's unlikely that they will have answers—or at least not good ones. 

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  1. I have managed to ignore the Obamacare law in its entirety from Day 1 on the hope it would eventually get tossed. Nice.

    1. “Somewhat surprisingly, last December, a District Judge in Texas agreed, and so, in turn, did the Trump administration, which took the rather unusual step of declining to defend any part of the law.”

      As someone who did not vote for Trump, I’m starting to worry he may be the best President of my lifetime.

      1. Unless you were orn waaay back during the Coolidge Administration Trump is the best by far (low bar).

    2. Me too, Tom.

      Fist bump!

    3. Unfortunately some of us could not ignore it since it canceled our affordable insurance plans.

      1. And most of us had our sources for healthcare, ie your employer, alter their plans to be compatible with aca.

        1. Bingo. Everything got more expensive and worse.

      2. That’s why OBL and I and Shreek are the only true libertarians…. and Nardz.

  2. Should not the question be: absent an actual severibility clause, is it proper for the Court to infer the existence of one based on the actions of Congress to save the rest of the law from an unconstitutional provision?

    Suderman seems to be favoring that sort of judicial activism.

    1. Suderman seems to be saying that a severability clause can be read into a law if Congress amends the law. Ah no. That is now how it works. If it isn’t there, it isn’t there. Congress is presumed to have intended what the law says.

      Suderman is not a lawyer and clearly doesn’t understand what the hell he is talking about.

      1. As I recall, the severibility clause was deliberately left out of the original bill by the Democrats as a tactic counting on the courts not have the audacity to overturn the entire law. Presumably, Suderman thinks the GOP simply forgot to add one in when they revised the law but fully intended to do so.

        1. the severibility clause was deliberately left out of the original bill by the Democrats as a tactic counting on the courts not have the audacity to overturn the entire law

          ^ This. I seem to remember something about the thing being a seamless whole where not one part could be eliminated without the whole thing crumbling.

        2. counting on the courts not have the audacity to overturn the entire law

          And they were right.

      2. He’s counting on roberts finding the missing clause in the seat cushions.

        1. It’s not a tax-tax!
          See, if you hold your mouth this way and squint, you’ll see exactly what I mean!

          1. Well he already did with medicaid funding. It’s a safe bet he’ll find it here, and suderman will take a victory lap around the vox offices.

            1. You’re on a roll today NotAnotherSkippy and it’s great.

              reason is more focused on making sure videos auto play when you view the comment sections than quality articles.

              I like knowing that anyone who visits reason and views the comments will always see at least a few Libertarian positions and someone criticizing reason’s bullshit positions.

                1. Actually, I realize now that it’s not the adblocker, it’s my Disable HTML5 Autoplay extension.

          2. His saving grace will be saying a nullity tax is still a tax.

        2. I’m counting on Roberts declaring it not a tax but a floor wax. AND a dessert topping.

  3. So, for consistency, Suderman thinks Obama declining to defend DOMA was an incorrect action that established a bad precedent?

    1. Hell no he doesn’t. He never said a word about that and reason cheered that at the time. It is amazing how dishonest and shameless people like Suderman are. There isn’t an honest intellectual bone in his body. What a fucking hack.

      1. It does create incongruities when you want your pet issues accomplished by any means necessary.

        1. And the fact that suderman is so worried about this ruling shows how committed he really is or ever was to getting rid of obamacare.

          1. Every alternative offered has gotten a “not that” from him.

            1. Because “purity,” and those republicans are responsible for obamacare because they wore such short skirts DIDN’T have a national health care policy. Yes, a supposed libertarian mag and writer actually argued FOR government directed health care.

            2. It fascinates me that Suderman thinks I should care about having a replacement for Obamacare in advance before getting rid of it.

      2. It’s hardly limited to suderman. The modern libertine progressive/”libertarian” loves this clown nose on/clown nose off game. Rules and norms should be rigidly applied unless they don’t like the outcome. Where’s the logical consistency that “libertarians” claim they have? Well, it’s… shut up.

        1. When it came to gay marriage it was by any means necessary because freedom. Okay. Now we come to Obamacare, one of the worst infringements on freedom of the last 40 years and it is all about legal niceties.

          That tells you all you need to know about what their actual values are.

          1. But remember, people like Suderman are above the Culture War.

          2. Iowahawk’s liberal progression applies to reason quite well:

            1) Identify a respected institution
            2) Take control
            3) Gut it
            4) Wear it as a skin suit

            1. “skin suit”…fucking scary and true.

          3. How the hell are you infringed by the ACA?

            1. I am told I must buy and insurance and what the nature of that insurance I have to buy. Jesus Christ Shreek, all that child porn has made you dumber than usual.

            2. >>>infringed by the ACA?

              it’s a tax.

            3. How the hell are you infringed by the ACA?

              Is this a serious question?

            4. Maybe because for the last 5 years I was told I had to buy insurance? Maybe because assholes like you tried to decide what my insurance company would offer me in the plans they provided?

              Fuck off, slaver.

        2. But they are above partisanship.

          The truth is, the are not in the partisanship game for the most part because they are small and/or disengaged from voting enough to safely ignore by the other players.

        3. The modern libertine progressive/”libertarian” loves this clown nose on/clown nose off game.

          Ironically, the clown panic was fake news.

            1. scariest book ever until the orgy.

  4. So now I have to scroll past a hideous picture Of Moobs as well as a steaming pile of Suder-words to get to the comments?

    That’s certainly an improvement.

    I blame [ insert name of favorite troll here ] for this travesty.

    1. I blame Grendel for this travesty.

      The correct answer is Grendel. Everybody’s favorite troll name is Grendel; with Bert and Olaf a distant second and third respectively.

  5. Let’s go through a brief refresher of the libertarian policies espoused here in recent years:

    Tax cuts are bad because the government needs your money to fund the welfare state, but tariffs are bad because they raise taxes.
    Any reform of the welfare state is pointless unless it solves the whole problem.
    We need to be nicer to socialists and we have lots in common with them.
    Government investigations are good because they can prove you innocent.
    Abortions are good because otherwise we’ll have to pay more in medicaid, but the death penalty bad because shut up.
    Obamacare must be defended at all costs.
    We need a UBI.
    Censorship is good.

    There’s just so much freedom and dedication to rights there I’m speechless.

    1. reason staff are NOT Libertarians and that explains what they espouse in these articles.

      Its even more apparent when you list some of the things you listed above.

      1. He hasn’t even gotten to the good stuff where they recommend purging books and defend rapists of infirm old ladies.

    2. -Poor, underserved country rubes should move to the city.
      -Capitalism is an intrinsic force for good, unless Christians are in charge of it then oppressive notions like work ethic might ensue.
      -When any other continent, country, state, province, county, courthouse, outhouse, and dog house in the world controls who comes and goes it’s completely acceptable (well, maybe not the outhouse) in any/all circumstances as long as it’s understood that US government doing anything at the southern border is categorically and axiomatically worse.
      -Private businesses getting uppity about who uses their outhouses is a senseless moral panic.

    3. Gun rights are nice but ultimately something that can be traded for other more important things.

      1. A lot of these criticisms are pretty valid (if somewhat overstated), but I’ve never seen that attitude in Reason’s coverage of gun issues. It’s certainly not one of their pet issues, and some of the writers seem pretty indifferent, but I can’t recall anything bad or suggesting we should trade away gun rights.

        1. There was this article from Robert Levy, yammering on about sensible regulation of firearms: https://www.cato.org/policy-report/septemberoctober-2016/gun-control-grounds-compromise

          Did it get much play here? I remember being surprised that Cato would be for any gun control at all, or would buy bullshit about background checks at gun shows being anything other than a way to backdoor gun registration.

          1. That is exactly what I am referring to Gray Jay.

    4. libertarian policies espoused here in recent years:
      Tax cuts are bad
      Obamacare must be defended at all costs.
      We need a UBI.
      Censorship is good.

      Huh? Who said any of this?

      1. Someone wrote an article about how the tax cuts will likely increase deficits. Therefore, it is Reason’s editorial policy to support the income tax exactly as it is. I think that’s how the reasoning works.

        A lot of people seem to think that any deviation from libertarian orthodoxy is “the mask slipping” and a signal of the real hidden motivations of Reason writers.
        I’m still trying to figure out what the advantage of pretending to be a libertarian is supposed to be.

        1. A lot of people seem to think that any deviation from libertarian orthodoxy is “the mask slipping” and a signal of the real hidden motivations of Reason writers.

          In fairness, “free minds” does carry an implied promise of rigid orthodoxy maintained in perfect lockstep.

          1. Odd how those free minds seem to always take left turns.

            1. Odd how those free minds seem to always take left turns.

              I know, right? True free thinkers march in lockstep with “The Right,” whatever that may mean this week.

              1. We’re not demanding Reason to be lock-step with “The Right”. We’re just wondering when, as “free thinkers”, they are going to come around to a position on the Right.

                There are, after all, reasons certain people think in right-leaning terms. Should we believe these people are all illogical? And if they have at least some logical reasons for their positions, shouldn’t we expect that people at Reason will occasionally fail to be libertarians in the direction of the Right, every once in a while?

                I know libertarians who are convinced that the Libertarian Party is a front by the Democrat Party to pull away conservative and libertarian voters from the Republican Party. The fact that Reason tends to fall left when they depart from libertarian philosophy only reinforces this belief.

      2. Boehm on tax cuts while simultaneously caterwauling about tariffs.

        Suderman on Obamacare including this very piece.

        Gillespie on the UBI.

        KMW et al on censorship.

        Shackford on investigations.

        ENB on abortion.

        1. There is stuff to criticize there. But how about trying to accurately portray what they write instead of this silly hyperbole (or in several cases absolute BS)?
          For example:
          Yes, someone has written critically about the tax cuts. But not to say that all tax cuts are bad or that lower taxes shouldn’t be a goal. Rather that maybe they aren’t a great idea without also cutting spending. Seems to me that is a point worth discussing, even if I’m pretty sure the tax cuts were good overall.

          1. So explain the rrnding of garments over tariffs. I understand that consistency isn’t high on your list of priorities but one would think that actually holding to principles when your entire shtick is how principled you are would be important.

            And then there’s your typical “it’s just one opinion” Motte and Bailey defense. But of course that’s just “hyperbole.”

            1. one would think that actually holding to principles when your entire shtick is how principled you are would be important

              Well, we can’t all be as consistently principled as you.

              Or are you a pragmatic realist today?

          2. Cutting taxes is *always* a good idea. But then, so is cutting spending.

            Why can’t we have both? And if no one is ever going to cut spending (or even cut spending increases), why can’t we at least have a tax cut or two, and hope we get a little bit of Laffer action in the process?

            (And if the Laffer effect doesn’t appear, we could use the reminder that WE NEED TO CUT SPENDING, DARN IT!)

    5. What was it you said?

      Oh–yeah–

      1) Identify a respected institution
      2) Take control
      3) Gut it
      4) Wear it as a skin suit

  6. If the founding of America could be done over again I’d argue with the founders that there must be some provision in the document allowing courts to throw out any law so complex that it takes a great deal of thinking about whether various parts of it are legal. All laws must fit on a single sheet of paper and are prohibited from having various and sundry connected parts with different functions.

    1. I’ve long been in favor of a “1 page bill” amendment.
      8.5″×11″
      10 point front minimum
      Single sided

      I think that’s pretty generous – we’ll let them play with the spacing and margins

      1. Probably should also add something about regulations resulting from bills. Keep congress from handing its responsibilities over to unelected bureaucrats.

    2. Some more language about whether the Constitution really was meant to apply to the states or not. I know the orthodoxy is that it didn’t until incorporation, but then why so many clauses about criminal law and procedure when there were very few federal crimes in 1789?

      I like the idea that criminal law should be something simple enough that I can explain to a group of 12 people in a minute or two why it should be a crime, and if I can’t, it shouldn’t be illegal.

      1. Most of the Constitution is written as – “No State Shall” (Limiting State from infringing individual rights. It really doesn’t address criminal law.

  7. ObamaCare was unconstitutional from Day 1. There is no enumerated power in the US Constitution giving the government the power to force people to buy products or services.

    Just like there is not power giving the government the power to ban products or services.

    Even the Commerce Clause only gives the federal government the power to regulate commerce internationally and between states. INTRASTATE commerce does not fall under this power nor does banning products and services. Regulation is not the same as banning.

    1. ^^^^^^^^^^^^^^^^^ THIS!!!!! ^^^^^^^^^^^^^^^^^^^^^

    2. I don’t care that the Supreme Court claims this is a legitimate process, but there’s another major reason why ObamaCare is unConstitutional: the Constitution is clear that any bill that generates revenue needs to originate in the House.

      ObamaCare originated in the Senate. It contains taxes. Ergo, it should be Dead On Arrival.

      But the Court claims that the Senate practice of taking a bill from the House, and gutting it completely, and then putting ObamaCare in its place, is a perfectly legitimate way to create bills.

      The abuse that the Supreme Court enables is sickening. I sometimes wonder why we even bother having a Constitution. (Sometimes I think the only thing the Constitution is good for, is that it gives a good starting point for people who actually believe in Liberty to explain why our government is currently a tyranny….)

  8. I do not favor Medicare for All (MFA), but I do think it will get a significant boost if the ACA is struck down. Healthcare is an issue on the voter’s mind. At this time the options are the ACA and Medicare for All. Eliminate the ACA and MFA will be all that left. The Republican have failed in 10 years to come up with any plan. I doubt they can do it in 16 months. Leaving MFA, like it or not, as the only option.

    1. Strangely (or perhaps not strangely) I’d rather have a fight over Medicare for All than I would about the ACA.

      1. [QUOTE]Strangely (or perhaps not strangely) I’d rather have a fight over Medicare for All than I would about the ACA.[/QUOTE]

        So would I. I can’t think of a faster way to bankrupt the country than MFA. And I think there are more than the options of ACA or MFA. Going back to fee for service and allowing realistic catastrophic plans would be a decent start.

        1. The MFA is a more honest fight, where the ACA was nightmare of bureaucratic machinations that made things so much worse.

          The left is 100% correct, with our economy we could absolutely “afford” to have healthcare for every single American… if and ONLY IF we adopted a European-style (or English) system. But we won’t. We’re going to try to keep all the hospitals, doctors, healthcare professionals and systems we have now, but just write a government check to pay for it. That’ll be a failure. And that’s the fight I want to have.

          1. Very much the same thing with education. We could have a system like Germany’s, for example. But we’d need to totally revamp what we have in ways that established universities and teachers unions would not like at all.

    2. “The Republican have failed in 10 years to come up with any plan.”

      D stupidity in no way obligates anyone to propose other stupidity.

      1. No, but political expediency might.

        1. See immediately below.

          1. That’s a good point. If most people will just continue to get insurance they like just fine from their employers, repeal probably wouldn’t cause that much backlash.
            Democrats are pretty good at ginning up outrage, though.

    3. Over 80% of consumers are happy with their coverage. Not an issue here.

      1. That 80% could change quickly if the ACA is declared invalid. Think about adult children under 26. What happens if they are thrown off your employer provided coverage. What happen if you are charged more because the insurance decided you have a preexisting condition. What happens when preventive coverage (vaccination, check-up, and mammograms) are not covered. Unhappiness could rise quickly.

        1. “What happens when preventive coverage (vaccination, check-up, and mammograms) are not covered.”

          You pay for it like a functional human being.
          I haven’t had insurance for over a decade. I see the doc once or twice a year and fill prescriptions 5 or 6 times. At $60/visit and $40/rx, that comes to $250-$350 per year.
          How much do vaccinations, mammograms, checkups cost? Can’t imagine it’s more than $50 or so (if it is, you’re likely getting ripped off).
          Insurance covering shit like that is exactly the kind of thing that drives up costs.
          You’re not even talking about insurance at that point, you’re talking about a really shitty payment plan.
          Idiotic

          1. Things like mamograms are a lot more than $50 for a very stupid reason: Medicare will pay doctors $X, will say that the patient is only required to pay $Y, and not only does $X + $Y is less than $50, it somehow is magically expected to disappear without hurting the doctor.

            If the doctor tries to pad the cost to make sure he gets $50, but charges other insurance companies or (heaven forbid!) people who have no insurance $50, the Federal Government declares this to be fraud, and seeks to throw the doctor in question into prison.

            So the doctor charges extra, the insurance companies play the game and make sure that the doctor gets their $50, and anyone without insurance left to hang out to dry.

            To throw in a little bit more cynicism: if someone has $5,000 medical debt, but declares bankruptcy because they can no longer afford their $1 million dollar house (and their $300k student loans, which are unbankruptable anyway, heh), it’s officially a “bankruptcy caused by medical bills” and thus a reason why “WE NEED MEDICARE FOR ALL!”

            It’s almost as if bureaucrats are deliberately sabotaging the system to justify their takeover. Nah, I’m not that cynical. Bureaucrats are merely incompetent, and so blind to their incompetence that they are convinced that they can fix everything.

        2. “…Think about adult children under 26. What happens if they are thrown off your employer provided coverage. ”
          Oh, the HORROR! They might have to pay for their insurance!

          “…What happen if you are charged more because the insurance decided you have a preexisting condition…”
          We are pleased we didn’t pay for you to free-ride until you signed up *after* you needed insruance.

          “…What happens when preventive coverage (vaccination, check-up, and mammograms) are not covered…”
          Not much; hardly anyone does so.

          “…Unhappiness could rise quickly…”
          Yes, it could, but here’s a good illustration of those who hope to get something for nothing:
          https://www.youtube.com/watch?v=f8hAqu-yPwc

          1. A simple reform that could go a long way would be to make it more tax-friendly for individuals to get insurance, rather than to have it provided by the employer.

            Right now, if I buy my own insurance, I still have to pay taxes on it, but if I get it from my employer, the taxes simply aren’t there.

            But this reform would mean that (1) I can take my insurance with me wherever I go, whether I’m employed or not, and thus have insurance on hand before rather than after I get a “pre-existing-condition” and (2) it would make it easier for me to be self-employed, because I won’t have to depend on an employer to get the tax benefit.

            But we can’t have this! It will enable (gasp!) independence among individuals!

  9. So, Obama not enforcing marijuana laws in states that have legalized the herb is good. But Trump not enforcing a clearly unconstitutional law is bad. Nothing to see here.

    #TDS

  10. And that, more or less, brings us to where we are now. Like so many television shows in their later seasons, the Obamacare legal battle appears to have lost the plot. Yet it continues.

    That’s because, as your article notes, it’s now just a game of 3d chess being played by lawyers in backrooms and closed courtrooms.

  11. Judge Kurt Engelhardt seemed resistant to the idea that the courts should be asked to slice and dice congressional statutes.

    Englehardt is correct. As Gorsuch recently opined in another matter, it’s not the job of the courts to “help” congress by recrafting a law (and slicing and dicing IS recrafting) it’s their job to invalidate and tell Congress to try again.

    1. Example:

      Law: There shall be no discrimination based on race or sex.

      Court: There shall be no discrimination based on race or sex.

      That, ladies and gentlemen is a different law. It has been re-crafted.

    2. Buuuuuttt…. they are so good at dissecting the animus and mind of the president and his executive… why not also congress? Nah, you’re right.

  12. A quick trip to the Reason archives brings me this – admittedly from 2011 which is before some of the current staff reached drinking age:

    “Does Federal Law Trump an Oath to the Constitution?

    “Obama’s decision to stop defending the Defense of Marriage Act follows conservative precedent….

    “…Keep in mind that while the Constitution requires the executive branch to “take care that the laws be faithfully executed,” the president also swears an oath to “preserve, protect, and defend” the Constitution. The question is what happens when the executive is charged with executing a law he deems unconstitutional. Should a contested congressional statute trump an oath to the Constitution?”

      1. All I see is “trump” in that headline.

        1. That reminds me of the joke about the psychiatrist who showed a patient a series of inkblots and asked the patient to say what he saw.

          “Naked woman…man and woman having sex…naked woman…two women having sex…”

          The psychiatrist says “you seem to have a preoccupation with sex.”

          The patient retorts, “hey, *you’re* the one with all the dirty pictures!”

    1. Stop it with your complications and questions. I’ve been assured repeatedly that this is all easy and obvious.

  13. Another step toward universal health care, regardless of whether the right-wingers recognize it or not, whether the slack-jaws want it or not.

    Open wider, clingers.

    1. I’m surprised you would deign to allow clingers to access this universal health care of yours. Or would you allow them?

      1. Maybe you could contrive some way to punish these hateful clingers by exempting them from the burdens and benefits of this scheme of yours – after all, your health policy is so good that all the superior urbanites will become super-healthy, and the slackjaws will just sicken and die, accomplishing your eugenic goals.

    2. …at least we don’t cling as hard as the lice do to your ball hair

    3. Rev. Arthur L. Kirkland
      July.10.2019 at 1:41 pm

      Open wide, asshole bigot. I’m more than willing to jam Trump down your throat agan

  14. “Will Another Court Vote to Strike Down Obamacare?”

    Let’s hope so, but no one can say for sure. I was shocked when Roberts voted for Obamacare a few years back.
    How this SCOTUS votes on Obamacare remains to be seen, but hopefully the high court will strike it down.
    America needs government healthcare like it needs the clap.

    1. I’m hoping Roberts gets taken down in the FISA court scandal and Trump gets to replace him too.

    2. Except that the clap is better because it is easily cured, fairly quickly. And with minimal cost or pain.

  15. The problem is we don’t need the federal government to come up with a new national “plan” for health care or health insurance. We need some basic ground rules in how the insurance industry can work, then let the free markets do the rest. Let health insurance be like auto or home insurance, numerous “products” tailored to your needs, your situation and what you can afford. Put enough products on the shelf for people to choose from, and the prices will come down due to competition.

    1. I have heard advertisements explaining that if you’ve been in an accident, you have the right to take your car to any auto shop for repairs, and your auto insurance will accept it.

      Meanwhile, we have to navigate a complex network of doctors to figure out which ones accept our insurance — and ObamaCare has doubled down on this.

      It’s sad that, when it comes to care, our cars have more rights than we do! But then, no one cares about cars, so government doesn’t do everything in its power to make sure it’s done “right”, while bureaucrats are determined to make sure we get the insurance we “deserve”!

  16. “but only as a tax penalty that raised revenue rather than as a compulsory purchase. ”

    It wasn’t compulsory. They’ll just fine you if you don’t buy it.

    I can’t wait for the equally voluntary prison sentences if you don’t buy what the government commands.

  17. Another doozy from Peter “The biggest problem with the ACA is that it’s too perfect” Suderman.

  18. This reminds me of when my grandmother would want to check to see if I had “a temperature”. I’d remind her that I _always_ have a temperature… and that the real question what the quantitative measure actually _was_.
    Alas, setting the quantity of the mandate penalty to $0 doesn’t mean that there isn’t a mandate penalty on the books. It’s just easier to pay it. Furthermore, making the mandate _toothless_ (or any deliberate lack of enforcement by the executive) does not make it _unconstitutional_… otherwise, presidents could “unconstitutionalize” any law they didn’t like just by signing an EO saying that they weren’t going to enforce it.

  19. Isn’t the employer mandate part of ACA still enforced and not zeroed out?

  20. Back when Oh BUmmerTax first was hatched, I decided to look into it for my little ol healthy self. Never had had health insurance, but since they were thratening to cram it down my throat, I checked. I about died laughing. ONE year’s premium, per all the information I entered, was set at a mere EIGHT THOUSAND DOLLARS. And THEN I had a few thousand dollar deductible, and co-pays once that was used up.

    For more than four decades have dealt with all my medical care issues by eating wisely, staying VERY active physically, not doing stupid things, and paying my own way. My total cost for ALL my medical care for those four decades was well under half what the stupid gummit wanted to fleece out of me for one year’s premium, then I’d have to pay the first few thousand myself…… well, that sum, the first few thousand, was still more than ALL my medical care for four decades. And they wanted this sum EVERY YEAR?

    Well, I don’t make enough to have to file income tax returns, and have no withholding, so I just said “up YOURS, Bammy” and never signed up.

  21. To strike down the entire law now would be to assume that the 2017 Congress did not know what it was doing when it declined to repeal the entire statute and instead got rid of the mandate penalty alone

    That is – obviously – assuming your conclusion. When an axeman swings at a tree trunk we do not assume his ambition is limited to chipping out a wedge. For all we know Congress fully intended to bring the tree down, but preferred for political reasons to be far away when the tree fell.

    I don’t say that that was what happened, merely that we don’t know what Congress intended, since it declined to state its intentions in the 2017 law, beyond the intention that the penalty should be zero.

    Which summarises neatly why we should run screaming from folk who prefer to interpret Congress’s intent by a careful examination of their own imagination, rather than to limit themselves to interpreting the law as written.

  22. “It’s true that the Democratic Congress that passed the law (and later the Obama administration) believed that the mandate was closely linked to the policy scheme of the original statute. But the operative question isn’t what Congress believed in 2010 when the law was passed, or what the Obama administration argued in 2012; it’s what Congress intended in 2017 when amending the statute. And it is exceedingly clear, both from the relevant statutory text, which zeroes out the mandate penalty while leaving the rest of the law intact, and the relevant legislative and political history (the Obamacare repeal effort failed, multiple Republicans said they intended to eliminate the mandate penalty, not the whole law), that the 2017 Congress intended to eliminate the mandate penalty and nothing else. There is no reason to believe that the elimination of the mandate penalty was, as one of the judges suggested today, a sneaky backdoor plot to get rid of the rest of the law via the courts. It was an effort to remove the mandate penalty—and that’s it. ”

    Now just substitute Census and citizenship question, and you’ve made a fairly compelling argument as to why the question should be included. It doesn’t matter whether there were shady backdoor reasons going on, or that the early plans had one reason and later plans had other reasons. Only that the question is lawful and can be included. Any shadiness is immaterial to the end point: the question is not unconstitutional and can be asked.

  23. “To strike down the entire law now would be to assume that the 2017 Congress did not know what it was doing when it declined to repeal the entire statute and instead got rid of the mandate penalty alone”

    Congress also knew what it was doing the 11 or so times it declined to enact the DREAM act. Obama kept saying Congress failed to act, so he instituted DACA. But Congress acted, and clearly acted to REJECT the DREAM act.

    Trump’s reasons for eliminating DACA should not matter. What one executive order creates, another executive order should be able to undo. Especially when undoing it complies with the clearly stated position of Congress.

  24. I am much more interested in what happens ‘the day after’, just from a pragmatic standpoint. If the Court tosses PPACA, then what happens?

    I think something like 200MM Americans are covered by employer provided plans (roughly 60%, as I recall). Another 65MM Americans are covered by Medicare. Another 70MM are enrolled in Medicaid.

    When you get down to it, we are talking about ~30MM who would be immediately impacted by tossing PPACA.

    The Court will hopefully do us a favor: By tossing PPACA, it will force the Congress to reach a consensus. The way this law was promulgated was just wrong, and more than anything, that is what drove the electorate nuts in 2010.

    Maybe the answer is blowing it up and starting over again.

    1. I have always considered the fact that Congress was determined to blow up *everyone’s* health insurance via PPACA, rather than come up with something to cover the remaining 30M people who needed insurance, to be de facto proof that Congress wasn’t interested in fixing American Health insurance, but was more interested in sabotaging the market (even more than it has already been sabotaged over the last few decades) so that they could replace the system with their own version of Medicare for All.

  25. As someone who has done very well swooping down on the assets of people in bankruptcy I can only hope that Obamacare gets tossed. If it is, some 20 million people will lose health care coverage and the bankruptcy rate will increase more than it already is already.

    Since unaffordable health care bills are the number one cause of personal bankruptcy in America, something that happens nowhere else in the “first world,” boosting that number will be a boon to those of us who feast on the plight of the poor. https://georgettemillerlaw.com/medical-bills-are-the-leading-cause-of-bankruptcy-filings/

    Bring it on, baby! The more bankruptcies the better.

    1. You forgot the main point to all that emotional banter. and FINALLY! The leaches (be them the healthcare fat-cats taking all that STOLEN taxpayer money or the “everything-they-want” citizens) will have to ACTUALLY accept responsibility for themselves instead of leaning on corrupt laws that steal from those a accept responsibility out of moral principle.

      1. That’s all quite besides the point.

        What really matters is that more and more Americans continue to be bankrupted by unaffordable health care bills. It’s the people who lose their homes, who are thrown out into the streets that we need. For those losers, whose assets we we pick up on the cheap when they’re financially destroyed, are the source of some good swag we winners are entitled to.

        It’s the American way, for god’s sake! Creative destruction, don’t ya know.

        1. American way = Actions have natural consequences and/or reward.

          If one decides to borrow a house built (paid) by bank money (not their own) under contract; NOTHING in that contract ENTITLES them to that home until it is EARNED. If THAT individuals decision PROVES to be a bad one; I fail to see how their bad choice is mine, the banks, the doctors or ANYONE else’s responsibility to pay for their mistake.

          The New American Way = Bad decision are Rewarded and Good decisions have consequences.

  26. […] “Will Another Court Vote to Strike Down Obamacare?” by Peter Suderman […]

  27. […] “Will Another Court Vote to Strike Down Obamacare?” by Peter Suderman […]

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