Footnote 3 of Texas v. U.S. should be removed from the final published opinion

There is no reason for a judicial decision to write that the ACA "was enacted as part of a fraud on the American people"

|The Volokh Conspiracy |

Last night, I wrote a three-part series on the Fifth Circuit's ACA decision. I agree with much of the opinion. But on further reflection, I agree with a criticism from co-blogger Steve Sachs and Nick Bagley: Footnote 3 is inappropriate.

It provides:

Some opponents of the ACA assert that the goal was not to lower health insurance costs, but that the entire law was enacted as part of a fraud on the American people, designed to ultimately lead to a federal, single-payer healthcare system. In a hearing before the House Committee on Oversight and Government Reform, for example, Representative Kerry Bentivolio suggested that Jonathan Gruber, who assisted in crafting the legislation, had "help[ed] the administration deceive the American people on this healthcare act or [told] the truth in [a] video . . . about how [the Act] was a fraud upon the American people." Examining Obamacare Transparency Failures: Hearing Before the H. Comm. on Oversight and Government Reform, 113th Cong. 83 (2014) (statement of Rep. Kerry Bentivolio).

The footnote accurately quotes a Committee Report about Obamacare. But there is no reason to include this passage, or to explain what "some opponents of the ACA" thought. This footnote–an unforced errror–takes away from the otherwise sober approach of the decision.

Recently, another member of the Fifth Circuit, Judge Don Willett, reconsidered his opinion in an important First Amendment case. The majority here should remove Footnote 3 from the final published opinion.

Update: Jonathan Gruber (yes that Jonathan Gruber) responds to Footnote 3:

Nevertheless, this week, an appellate court didn't reject the judge's improper reasoning. The court simply sent it back to him to take another shot at it. The judges of the Court of Appeals for the Fifth Circuit even spiced up their report with a random footnote so politicized, it could be a direct quote from our president: "Some opponents of the ACA assert that the goal was not to lower health insurance costs, but that the entire law was enacted as part of a fraud on the American people."

This is a complete abdication of responsibility in the face of an improper decision. Rather than make the hard call, the appellate judges punted—conveniently, until almost certainly after the 2020 election.

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  1. Well, no reason aside from it being true. But I suppose I agree, that’s not enough reason to mention it.

    1. Yes. It’s all a fraud. It couldn’t possibly be true that ACA supporters wanted as many people as they could to have comprehensive and affordable insurance within the limits of political feasibility at the time. Nope it was a definitely a fraud. These people definitely did not care about kids with preexisitng conditions or people with slightly too much money to be on medicaid or anything.

      Or perhaps the majority is projecting bad faith onto the law’s supporters because they routinely make decisions in such a cynical fashion that they assume other people must too.

      1. “If you like your doctor, you can keep your doctor!”

        ~ Pres. Barack Obama (repeated publicly 20+ times)

        “This bill was written in a tortured way to make sure the CBO did not score the mandate as taxes.”

        “Lack of transparency is a huge political advantage.” (with regard to the way the ACA was written and promoted)

        “Call it the stupidity of the American voter or whatever, but basically that was really, really critical to getting the thing passed.”

        ~ Jonathan Gruber, Obamacare architect

        1. One economist’s view is not the view of every supporter of the ACA. Nor is it the view of every member of Congress who voted for it and the President who signed it. If you actually think that they didn’t care whether people in the here and now got insurance and weren’t excluded because of preexisting conditions or what have you, then it is because you’re projecting your own cynicism onto them.

          1. If you are actually naive enough to think politicians care, tell the truth, or are honest, well, you must be a politician yourself, and a pretty poor one.

            1. Or maybe you’re just projecting because you routinely do none of those things?

              1. Go ahead. Name one honest politician.

                1. Go ahead, name one honest thing you’ve done.

                  1. Called you out for being naive.

                    1. Well I suppose honest cynicism is still honest. Good work.

                2. One honest politician? How about Donald John Trump, is he in your estimation an honest politician? If he isn’t, what would you point to as evidence that he is other than honest, and who among currently serving politicians do you think more honest than Trump? For purposes of comparison with those who serve in or seek public office, do you count yourself an honest person, or do you hold politicians to different standards of rectitude than you hold yourself?

                  (neurodoc would like your answer so he might judge the seriousness of your questions.)

            2. What do you think was the objective of ACA supporters, if not to extend health coverage?

              What nefarious purpose did they have?

              1. Apparently it is a nefarious scheme to enact single payer, which is itself a nefarious scheme to…try to ensure people have quality health insurance? I guess? Even if you truly believe that any government intervention is a terrible method for delivering any sort of better health outcomes, the notion that the vast majority of supporters of ACA/single-payer are motivated by something other than the desire to improve healthcare outcomes is bizarre.

              2. Internal logic is an artifact of the pre-post-truth era.

          2. One economist’s view

            I’m going to be generous here and assume that you referring to the repeated dishonesty of the chief architect of the ACA and the POTUS who pushed it as “One economist’s view” is a result of simple-mindedness on your part rather than you intentionally attempting to peddle ridiculous bullshit. I’ll make the same generous assumption with regard to your not understanding that the perpetration of fraud is not dependent on bad intentions.

            1. Gruber was by no means the “chief architect” of the ACA. That’s Fox news BS.

        2. Politifact Lie of the Year (2013): ‘If you like your health care plan, you can keep it’

          1. Even so, the goal was always to get people covered, even if the means turned out not to be great.

            1. Hitler claimed to have good intentions. Stalin claimed to have Good intentions. Mao claimed to have good intentions. Many slavers claimed to have good intentions.

              What is your point?

              1. Except they blatantly did not claim to have good intentions to groups they labelled undesirable (Jews, counter-revolutionaries) or to the slaves. By contrast the good intentions here were to get as many people as possible comprehensive insurance they could afford in the absence of a universal scheme. That’s clearly substantively different from Stalin, Mao, Hitler, and slavers.

                Those individuals and group made no secret that they wanted specific people to die or did not care who died. The ACA supporters by contrast clearly wanted as many people as humanly possible to have better affordable health insurance which would lead to better health outcomes. It is fundamentally human life affirming.

              2. Some people have good intentions, others don’t.

                Doesn’t seem hard to understand.

              3. Don’t get wrapped up in that talk in the two comments above. In my experience, the actual RESULTS of a policy don’t matter so much as the good intentions to liberals.

              4. Rebecca claimed she bought me a birthday gift. She gave me a new iPad.

                Sarah claimed she bought me a birthday gift. She pulled a switchblade out of her purse and stabbed me in my thigh.

            2. Even so…

              So you’re not arguing that it wasn’t in fact fraud (you know, the subject of this thread), but simply that the ends justified the means.

        3. Licensed by the Board of Health Care Architects…? Annoying.

      2. I wasn’t a fan of Obamacare, partly because I thought it might forestall single payer, but there’s zero doubt in my mind that its sponsors felt it would expand health insurance and whether they were right or wrong, that belief was not fraudulent. Indeed, some of them, like Joe Lieberman, felt very strongly that it would prevent single payer, not start the balling rolling towards it.

        1. Exactly. Even of it is ultimately terrible policy and that some supporters maybe viewed it as unworkable and hoped it would eventually lead to single-payer, they obviously would have rather had more people with comprehensive coverage at that point in time than no-one.

          1. No offense, but that’s BS. If ALL they wanted to do was expand coverage, they could have (with the GOP merrily going along) could have passed just a medicaid/medicare expansion. Everybody would have claimed a win, and the foot on the debt accelerator would have pushed down a littler further as we speed towards the insolvency cliff. They wanted an intermediary step to single payer, and the ACA was the vehicle.

            1. They also wanted protections for people with preexisting conditions, the removal of plan cancellation when people get sick, and the end to yearly and lifetime caps.

              Even if it is a bridge to single payer it’s not like they simply wanted people in the here and now to suffer.

              Also the GOP clearly did not want to expand Medicaid because they opted out after NFIB and fought that provision as hard as they fought the mandate.

              1. BS, the GOP would have expanded government coverage because George W. Bush and the GOP created Medicare part D just a few years previous to Obamacare!

                It was a bridge to single payer, you know it, I know it, we all know it. That it may have had what you think are redeeming policy features, means that they were along for the ride.

                1. Again. You’re just overly cynical if you actually think that the people creating ACA didn’t care about uninsured people in the here and now before eventually implementing single payer.

                2. BS, m_k.

                  It’s plain the GOP didn’t want to expand Medicaid because they fought the expansion in the courts, and many GOP-dominated state refused it when it was made optional.

                  Besides, the GOP was never going along with anything Obama wanted to do. They said so. Stop pretending otherwise with all this, “Gee, if the Democrats had just been reasonable.” It’s nonsense.

                  How blind to the evidence can you be?

                  1. The GOP was/is not against expanding government coverage because the last administration had just done it prior to Obama. It’s a myth that the GOP is not big government.

                    How much evidence are you blind too? The train that the medicaid expansion was linked too (Obamacare) had a ton of other flaws in it, notably the commandeering of state sovereignty, such that it was a poison pill. These things matter.

                    In alternate universe where the Dems did not have both houses of Congress in 2008, they wouldn’t have gone all the way with Obamacare. In another alternate universe where they had won even bigger margins and Kennedy hadn’t died, they would have given us an American version of the NHS.

                    1. The GOP was against any such expansion situationally, because it did not want the Democrats getting credit and instead wanted to rev up its base about socialism and the government taking over 20% of the economy.

                    2. The train that the medicaid expansion was linked too (Obamacare) had a ton of other flaws in it, notably the commandeering of state sovereignty, such that it was a poison pill. These things matter.

                      Oh bullshit. That makes no sense. Whatever real or imagined flaws there were in the rest of Obamacare, refusing the Medicaid expansion did nothing to alleviate them. It was a simple yes/no proposition to the states.

                      Some Republicans refused, for no better reason than to spite Obama, which is pretty much the definition of GOP policy from 2009 through 2016. That’s all. And now we read sad tales of rural hospitals closing in some of these red states and people having to drive hours to get to an ER or have surgery or whatever. Too bad.

        2. whether they were right or wrong, that belief was not fraudulent

          So your argument that fraud is not actually fraud so long as you believe that your lies are in the service of a greater good.

          1. You don’t know what fraud is do you?

      3. If you like your plan LawTalkingGuy, can you keep your plan?

        1. Well I was in college when ACA passed so I was able to stay on my parents plan until 26 when I was in law school. So yes? And then I wouldn’t have to worry about being denied insurance in the market place due to some medical conditions I have. So that’s nice too.

          1. How nice for you. Not so nice for millions of other Americans. But who cares right? Mommy and Daddy helped you out.

            1. You know what’s not nice for millions of Americans? Not having that option before ACA. Also not having the fallback of an expanded Medicaid.

              And yeah I got to stay on my blue collar dad’s union insurance plan. I’m lucky I had a parent who had that. I take it by your mocking that you think its bad form for parents to do things for their children.

              1. I think you’re confusing parental obligations and responsibilities with the Nanny State.

                And, really, Medicaid? Won’t it be great when we have Medicaid for all. I can’t wait.

                1. It’s a normally a lot easier on Mom and Dad’s bottom line to put Junior on one parent’s employer-provided health benefits plan than to buy a whole policy somewhere just for Junior.

                  1. A lot easier for junior to sponge off his parents too.

          2. That’s a fiction, that coverage for pre-existing conditions didn’t exist before Obamacare. Anyone could get coverage as part of and employer’s plan, and unless some physical portion of a job is required, then prospective employers are not allowed to ask, let alone discriminate, on the basis of your health.

            That said, buying “insurance” after your sick isn’t insurance at that point, it’s welfare. You don’t get a homeowners plan after your house catches on fire.

            1. If someone has a chronic condition that needs coverage that doesn’t mean they won’t need insurance for some other condition. Consider an amputee, perhaps one who lost a limb at an early age, that’s a preexisting condition that will require continual expenditures, but the person also needs insurance in case they get the flu or cancer or something. And even if it is welfare, so what? Why should people suffer continuously for something beyond their control?

              1. The beginning of wisdom is calling things by their true names. Then lets have a debate about how much disability welfare we want to give out. Very few people are against SS disability, and there are better ways to handle it than a massive overhaul of 1/5 of the economy through government control.

                1. Then John Roberts is a very wise man since he called the mandate a tax.

            2. Whether or not a particular employer’s plan excluded preexisting conditions was up to the employer. And in any event, you seem to favor a system vaguely similar to slavery (“You can either work here, and continue to have your dialysis covered, or quit.”). That’s an incredibly dysfunctional market, if nothing else

            3. And some employers didn’t provide insurance, and some people wanted to work for themselves, or retire early, and some got sick and couldn’t keep the job that provided insurance, and some….

              IOW, yeah, some people could get coverage for pre-existing conditions. It was hardly universal.

            4. That said, buying “insurance” after your sick isn’t insurance at that point, it’s welfare. You don’t get a homeowners plan after your house catches on fire.

              What about when you lose your existing policy due to illness? Say you get sick and can’t keep working.

              Say there’s a downturn in the economy and you get laid off.

              Doubly screwed.

              Say you want to change jobs but the new employer doesn’t provide insurance.

              Besides, “pre-existing condition” doesn’t just mean a serious illness. Insurers use it provide all sorts of excuses for refusing coverage.

        2. I kept my plan, kept my doctor, the works.

          Most people did, despite the endless repetition of yet another right-wing slogan.

          1. How very sophistic; 4,999,999 other people did lose their plan.

            1. That number is pretty dubious, by the way.

          2. I kept my plan

            Oh, well then…that changes everything.

            1. Hey, he asked.

      4. If the ACA is so great, why did the Obama administration delay implementation of many of the key provisions that were necessary to actually make it work? You cannot force insurers to cover preexisting conditions without also having a universal mandate. But the Obama administration never, not once, ever enforced the “penaltax” that was necessary to make the ACA work, even after the delay in it actually taking effect. This was its central tenet, but the gutless administration refused to risk any political capital over it. Therefore, premiums and deductibles skyrocketed, further exacerbating the adverse selection problem. Passing a law is only one part of of the equation.

  2. Why remove it? It provides informative background and context.

    1. You’re right. It confirms the suspicions that the panel is not engaged in a credible evaluation of standing or severability. So in that sense it gives the opinion context.

      1. And it apparently annoys you to no end so that’s another reason I’d keep it.

        1. It annoys me in the sense that projection of bad faith and cynicism is annoying. The fact that that plus annoying me gives you joy tells me a lot about your character.

          1. Sorry, I forgot for a second that liberals have no sense of humor.

            1. No we do. We just don’t think being a dick for the mere purpose of being a dick is very funny.

              1. Do your parents know you use language like that?

                1. Yes. Do your parents know you that you assign positive worth to acts you believe make other people upset, merely because they make those people upset?

                  1. It may surprise you to know that, after yesterday’s disgrace in the House, I really don’t care if I upset liberals (besides, liberals are always upset anyway).

                    1. You probably don’t care if you care if you upset anyone because you probably lack empathy for others.

        2. “And it apparently annoys you to no end so that’s another reason I’d keep it.”

          Debasing the American legal system to own the libs.

          1. Is that what you call it? Okay….

  3. “This footnote–an unforced errror–takes away from the otherwise sober approach of the decision.”

    1. “errror” – Yep, that’s about right.

    2. It isn’t unforced.

    3. It doesn’t take away from the “otherwise sober approach[;]” it encapsulates the entire approach, if not necessarily the entire opinion.

    1. I’m not sure JB is prepared to receive this kind of knowledge.

  4. No. It should stay. As MKE notes it gives background and context. It tells readers and the Supreme Court what the panel was thinking. As the Chief Justice noted, “[a] fair reading of legislation demands a fair understanding of the legislative plan.” King v. Burwell, ___U.S.___, 135 S.Ct. 2480, 2496, 192 L.Ed.2d 483 (2015). That footnote will help the Court decide if the Fifth Circuit and Judge O’Connor are giving such a reading.

    1. Yeah, that’s smart. I mean there’s no reason to provide the background context of the political history underlying the whole matter. No court has ever done that in any opinion. How out of place.

      1. The political context the court offered is a bad faith explanation premised on a cynically and willfully ignorant misunderstanding of what motivated Democrats who supported the ACA.

        1. It’s a good thing your here to explain the court’s secret “bad faith” motive. With your mind-reading abilities you should go far.

          1. It’s no more miraculous than your mind reading of ACA supporters.

        2. The political context the court offered is a bad faith explanation premised on a cynically and willfully ignorant misunderstanding of what motivated Democrats who supported the ACA.

          Don’t strain yourself lugging those goalposts downfield. The issue isn’t with regard to their motives for perpetrating a fraud. The issue is that they perpetrated a fraud.

          1. Fraud is premised on knowing deceit. It’s why it’s different than a breach of contract. Motive and intent are essential to the concept.

  5. I could maybe see that information at a different point in a different opinion. The lawsuit makes no practical or strategic sense even from a Republican point of view (perhaps especially from a Republican point of view). So, if you feel like it might be useful or helpful to suggest why it was nevertheless filed, emotion (specifically, anger) is the explanation. In an opinion that would have found no injury in fact, maybe that’s marginally useful: people sometimes feel strongly that something is unconstitutional even if it hurts them not at all. Honestly, even in that hypothetical opinion, I doubt I’d include it. Ideologically driven lawsuits by uninjured plaintiffs are not a new or rare phenomenon that needs explaining at this point. {I express no opinion here on the standing arguments, or on the merits, or on whether the anger is justified; the plaintiffs’ decision to make the severability arguments was not a good one.}

  6. This is unusual. Like Loki (where you been?), I want the footnote in, but that’s not the unusual part. The unusual part is folks for and against the ACA like the footnote. And the footnote is extreme.

    Some folks want extremism exposed. Other folks just want extremism.

    1. It’s no more unusual than the blatant partisan carping by RBG just the other day, nor Kennedy’s moonlight walks through a field of penumbras and emanations.

      If you want the fiction that courts are impartial, can we keep our fiction that courts are impartial?

      1. “It’s no more unusual than the blatant partisan carping by RBG…”

        Are you saying you want it to stay in but you’re ok with RBG’s comments, too, or that you think RBG should not have said what she said and you want this footnote removed?

        1. I’m merely commentating that it’s not unusual. Don’t assume that because I think that Obamacare was a long jog down the road to serfdom and the worst domestic policy since the Fugitive Slave Act that I support leaving the footnote in. It’s a usual fiction for the average citizen to think that courts are sorta nonpartisan.

          That said, it’s less egregious than RBG’s utterances, those a real disservice to democracy. In fact, I bet if Blackman hadn’t made this post, the number of people who would see the footnote, and have remarked on it as something to be removed, would be less than 100. Now he’s posted about it on one of the most followed legal blogs in the US that at least one SCOTUS members says she checks daily.

          1. I don’t want to assume anything. That’s why I asked you a question. Do you “support leaving the footnote in” or not?

  7. Good call, Josh, except I think the footnote should remain as a clear signal, right off the bat, of the majority’s ideological bias. Rather than portraying the ACA as a socialist conspiracy, the majority much more plausibly could have portrayed it as a remarkable piece of centrist statesmanship that built on principles first advanced by the conservative Heritage Foundation and whose backbone was based on RomneyCare’s proof of concept. A court with a different ideological mindset just as easily could have noted that a primary basis for ACA opposition is thinly veiled racism, as evidenced by the fact that states that (as the majority noted) still insist on refusing billions of $$ of their own taxpayers’ money are glaringly concentrated in the Jim Crow South. My point isn’t that the latter views are the correct ones, but that the court engages with the underlying policy issues with this level of extremism, for no good reason at all.

    To make its gratuitous point, the majority quotes a misrepresentation of Jon Gruber’s role and intent made by a former Congressman who (if you search you’ll find) also called for President Obama’s impeachment (even though admitting he had no evidence of wrongdoing) and once offered to conduct a Congressional hearing on whether the government is secretly poisoned us with “chemtrails.”

    What makes this footnote truly shocking is not only Josh’s point about how entirely irrelevant this policy dig is to anything in the court’s analysis. It is also the fact that the majority so blatantly displays a Fox News based InfoWars influenced view of public policy right at the outset of such a potentially monumental opinion.

  8. “sober approach”

    That’s the Trumpist view, I suppose.

  9. Not a great sign when the conservatives on the judiciary feel confident enough in their newfound strength to just publish blatant partisanship like this.

    This is going to get worse before it gets better. Congrats to all those noting the success of the conservative judges project with satisfaction; this may become a monkeys paw situation.

    1. You are not sending a Christmas card to Harry Reid, I take it?

      1. Always blame the other side, m_k. You have no agency, none at all.

        1. You’re funny, though not in the way you think. McConnell and Trump are clearly responsible for the conservative judges, but like the shuttle blowing up, was it the O ring failing (the GOP) or the cold weather that made it brittle (Reid).

          And don’t kid yourself, had Hillary won, and the Dems a senate majority, they would be balls to the wall doing the same thing, and without a single ounce of guilt about “muh norms”.

          1. No they wouldn’t. McConnell changed everything with Merrick Garland.

          2. Look at blue slips. The GOP took them away when they were in the Senate majority, the Dems put them back when they took it. The GOP got in, and stopped it again.

            One party is still into norms. Maybe not as much as they used to be, but the other party no longer cares about followon social costs so long as they win.

  10. This decision is a traditional judicial-restraint conservative’s nightmare. It is an orgy of policy-based judicial activism thinly masquerading as law.

    The fact that the result reached happens in this case to be a conservative one doesn’t change this.

    1. 100% correct. Plus no Republicans voted for the ACA so no fraud was committed because Gruber implied the deception was to get Republican votes but none of them voted for the legislation.

      1. Gruber implied nothing. He plainly and boldly stated that the purpose was to mislead the American public.

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