The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.