Is Texas v. U.S. really "necessary"?

|The Volokh Conspiracy |

Nearly a decade after its enactment, the Affordable Care Act remains under constant siege. Indeed, covering Obamacare reminds me of the film Groundhog Day: the same script repeats itself over and over again, in slightly different contexts. The Supreme Court has twice rejected challenges to the Affordable Care Act's survival. Now, the third major challenge to Obamacare is on the Supreme Court's marble doorstep. The Fifth Circuit Court of Appeals held that the 2017 tax bill that eliminated the ACA's penalty also rendered the individual mandate–and perhaps other aspects of the law–unconstitutional. 

The dissenting opinion scoffed at the entire case. Judge Carolyn Dineen King asked if it is really "necessary for a federal court to rule on whether the Constitution authorizes a $0 tax or otherwise prohibits Congress from passing a law that does nothing." Judge King pithily captured popular opposition to this case: why should the courts disturb a transformative federal law because Congress may have lacked the power to enact a single unenforceable provision? 

The answer to this question is simple, but likely will be unsatisfying to critics. In 2012, Chief Justice Roberts was faced with a choice. He could have joined his four conservative colleagues who held that the entire Affordable Care Act was unconstitutional. Or, he could have agreed with a prominent conservative appellate judge who found that Congress could require people to buy insurance as a means to regulate the nationwide health care marketplace. Either option would have settled the status of the nascent law with finality. Obamacare was constitutional, or it wasn't. There would be no doubts.

The Chief Justice chose door number three. He agreed with Justices Scalia, Kennedy, Thomas, and Alito that the ACA did not merely regulate interstate commerce, but imposed an unconstitutional mandate to engage in commerce. But he did not stop there. Roberts concluded that the ACA could be saved because the law's penalty resembled a tax, and Congress's taxing power is broader than its commerce powers. This split-the-baby approach provides the answer to Judge King's question. Had Chief Justice Roberts definitively resolved the status of the ACA, it would be completely unnecessary to decide whether reducing the penalty to $0 rendered the mandate unconstitutional. But he didn't make that ruling. Now, when Congress altered the penalty, we have to assess the effect of that alteration on the ACA's constitutionality.

Roberts's steadfast effort to chart a middle course effectively rewrote Congress's handiwork. And by identifying factors that saved the mandate, Roberts recognized that the absence of those factors would doom the mandate. Rather than having a steady, stable legal regime, we are left with what I've described as "Schrödinger's mandate"–a law whose validity turns entirely on what Congress does after the fact, regardless of what Congress intends. In the pursuit of moderation, Chief Justice Roberts left the ACA dangling by a metaphysical string–a string that Congress sliced in 2017.

Now, I'll level with you. The mere fact that Congress toppled the saving construction did not require Texas and other red states to bring this lawsuit. The Plaintiffs could have simply concluded that Congress's decision, at most, rendered the individual mandate unconstitutional. And because the government would take no action to enforce the mandate, a lawsuit would have been meaningless. But the conservative attorneys general didn't take that approach. They argued that if the mandate was unconstitutional, the entire law had to fall. And two private plaintiffs argued that the ACA was a bad policy that required them to buy expensive, unwanted policies. Here, the Plaintiffs' case blends fidelity to constitutional principles with advancement of policy preferences.

I don't begrudge the red states any more than I fault blue states who bring similar cases. Lawfare is colorblind. Conservative and liberal attorneys general alike bring audacious legal cases based on thin legal reeds, to achieve goals the political process cannot support. But this case does not rest on gossamer threads. Indeed, I think Texas v. U.S. is a stronger case than the two previous challenges the Supreme Court considered. Chief Justice Roberts opened the door to this argument by saving the ACA under certain circumstances. If those circumstances are no longer present, Obamacare is unconstitutional, at least in part. That holding would be far simpler than some of the decisions we've seen in recent years. But the Court could go the other way. In his customary role as the swing vote, Chief Justice Roberts will decide whether to let Texas through the door he opened, or slam it shut.

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  1. Yawn… wake me when Texas and the Reich settle this matter in the Octagon.

  2. When first we practice to deceive

    O what wonders we must believe!

  3. “Either option would have settled the status of the nascent law with finality. Obamacare was constitutional, or it wasn’t.”

    One might think so but the political reality is that the status of a law that provides benefits to so many people would always be subject to assault by those who don’t want to see benefits flow to so many people.

    1. Then you surely would support the “$1000 for your rights” bill.

      It’s very simple, a 2 part law that
      1. Gives every person in the US $1000
      2. Eliminates the right to free speech.

      And surely anyone who would argue against such a bill just doesn’t want benefits to flow to so many people.

    2. This is about whether the Trump tax cut is constitutional or whether this part of the tax cut is severable.

  4. Actually this lawsuit is awesome because it means part of the Trump tax cut is unconstitutional!! So the lower court judge should be deciding whether this is severable from the tax cut legislation and not the ACA. So the entire absurd Trump tax cut could be declared unconstitutional!!! This is hilarious!!

    1. Does it hurt being that ignorant Seb?
      Or just normal for a Progressive prole?

  5. “If those circumstances are no longer present, Obamacare is unconstitutional, at least in part.”

    But even though the circumstances that made it a mandate are removed, it’s still unconstitutional? This whole thing is an embarrassment to the system and to self-governance generally. You cannot penalize people for not purchasing broccoli. But you can tax them for not buying broccoli. But if you do tax them for not buying broccoli, it has to be at for more than $0. Because it is ok to mandate broccoli purchases, so long as you give it to them, good and hard.

    A $0 penalty is no tax, but it isn’t a mandate, either. There’s no longer any need for a savings interpretation.

    1. Whaaaaaaa. I hate Obama and Kenyacare! Obama is a poop head! Whaaaaa!!

      I love Kushnercare that Trump has given us. Santa Trump gives presents to all the good little Republicans and has made Josh Kushner a billionaire with his executive orders that have transformed Obamacare into Kushnercare. Thank you Santa Trump for even taking care of the Christians that reject Christ like Ivanka Kushner!

    2. There might be case law the other way on this, but assuming there isn’t: there are various benefits that require you to disclose any laws you’ve ever broken (all the ones that come to mind are related to the military 20 years ago, so some of that may have changed). They explicitly want you to include speeding and running red lights, which they’ll dutifully check off and then ignore. Failure to report a violation can result in you losing the benefit (like some security clearances), even if it’s something dumb – because this is basically an honesty test, will you come forward with anything that might be a concern.

      A mandate, even with no penalty, should trigger these scenarios, and could cause people to lose their jobs.

      Same thing with parole, bail, etc which require you to comply with all laws.

      So there may actually be some collateral consequences of a zero penalty mandate. Have any of these been litigated yet?

      1. When the mandate was brand-new, my security officer told us to report if we were paying the tax/fine/fee – but that it would not be held against us at all.
        Last year, when I was going through to process again, we were told it didn’t matter if we reported or not, they didn’t care. Speeding tickets and such still needed to be reported though.

        So… who knows? I’ve never heard of anyone suffering adverse effects for their security process, even through the rumor mill.

      2. I do not believe you that any person’s failure to report every time they sped but were not stopped can or has ever resulted in the loss of any benefit, including a clearance. Every person who has ever had a security clearance has failed to disclose the hundreds of legal violations they have committed but for which they were never stopped, cited, arrested, or otherwise bothered by law enforcement.

        However, it is these people who have lost their jobs for failing to comply with the mandate who would have standing to challenge it. None of those people are plaintiffs in the present law suit, since they don’t exist.

        1. Actually, you ARE required to admit if you have broken the speed limit, or downloaded copyrighted files, or littered, or in any way broken the law. It’s usually only done during your periodic reinvestigation, as part of the “Have you broken any laws?” reporting section, and they usually don’t care about individual instances – unless the fine was high enough (over $100 in my agency), the value was large, or there was other harm.

          And yes, people have lost their clearance for not reporting speeding tickets. I know a guy that his clearance for watching legal pornography (S&M).
          I do not know of anyone in the clearance process that has been punished in any way for failing to buy health insurance, but it can happen – stupider things have happened.

          1. And if he claimed that he paid the $0.00 penalty?

  6. Someone in California needs to file this exact same lawsuit except go after the Trump tax cut. So argue you are being harmed by the zeroing out of the individual mandate and that the tax cut legislation is unconstitutional and the entire tax law should be declared unconstitutional…in the alternative the individual mandate portion could be declared severable and the individual mandate tax would be restored.

    1. I would like to thank Seb for publicly displaying his/hers/its ignorance.

  7. This country has a long history of resolving social controversies by passing hortatory laws (or keeping existing ones on the books) and then not enforcing them. As the Supreme Court noted in Bowers v. Hardwick, many states with sodomy laws had stopped enforcing them for private consensual conduct some years before, and Mr. Hardwick’s situation, giving rise to a live federal-jurisdiction controversy, had become unusual. As federal courts have repeatedly held, when states don’t enforce their laws, what those laws say is no business of the courts. It just doesn’t matter whether laws, or the decisions not to enforce them, or a good idea or a bad one. The federal government is no different.

    Article III requires a live case and controversy for federal courts to have jurisdiction. Having a law on the books the plaintiffs disagree with is not enough. The named defendants must be causing the named plaintiffs actual, real harm.

    The long-standing practice of simply not enforcing controversial laws is one reason why I argued Obama was within his prosecutorial-discretion rights regarding his immigration policies. A Congressional decision not to enforce deserves even more finality from the courts.

    This case was never the federal courts’ business. Deciding it was neither necessary nor proper.

    1. Obama started declaring these phony refugees “economic refugees” when he rescinded “wet foot dry foot” and characterized Cuban refugees as “economic refugees”. Trump has done a good job building on Obama’s lead.

    2. Even if the penalty is now set to zero, how can you be so sure there are not other consequences for failure to comply with the mandate? I would not be at all comfortable not doing something the government says I have an obligation to do. Most obviously, the government could change its mind.

      1. It is the plaintiff’s job to prove jurisdiction. If you can’t be sure, the burden of proof has not been carried and the conclusion is jurisdiction does not exist. Subjective feelings of discomfort are not a basis for federal jurisdiction.

        https://casetext.com/case/doe-v-duling

      2. And of course if Congress changes its mind, then there is a new state of the law for courts to consider. It is not the role of courts to give advisory opinion a on hypothetical laws that Congress might decide to pass in the future. And it is not enough for Congress to just pass a law. The names defendants have to be actively enforcing it against the named plaintiffs, right now. What people might hypothetically decide to do in the future is none of the courts’ business.

  8. So, just so I understand, is there any expectation that Roberts will actually take a principled legal approach to review? Or are we just to expect and accept that he’ll basically do whatever he wants based on the political mood he just happens to be in at the moment?

    1. The principled position is that previously the Court didn’t think it was severable, and the Congress passing it didn’t think so (because they didn’t say it was), but they obviously intended to functionally sever it in 2017. Since they changed their mind on sever ability, who is the court to gain say them?

      1. But although Congress functionally eliminated the individual mandate, it’s still there. Congress could have eliminated it at that time, but chose not to.

        So by the same argument, you can say that by choosing NOT to eliminate it, even when reducing the penalty to zero, they must have thought it was essential to the law.

      2. The problem here is that Congress actually severed it. They passed a law that was the functional equivalent of a court injunction against the mandate while leaving the rest of the law in place. That which Congress did, courts must assume Congress intended.

      3. Who is the Court to gainsay them Robert? Since when does Roberts respect statutory language? In King v Burwell? Where he re-wrote the law to pass his constitutional muster?

  9. The problem with unenforced laws is that there’s no law that controls when a previously unenforced law can suddenly become enforced again. Maybe it’s only enforced when people complain, or against people we like, or don’t like, or who looked at us funny. That’s not a legal system, it’s thuggery.

    1. This is not a question of unenforced laws. It’s a question of laws which lack an enforcement mechanism.

  10. I don’t understand the severability analysis for Texas vs US. Why not just declare the mandate unconstitutional and remove it without striking down the rest of the ACA?

    As originally designed, the mandate was obviously critical to the ACA. Healthy people are subsidizing people with pre-existing conditions, and it was clearly Congress’ intent for that to be a pillar of the ACA. So it arguably was not severable before.

    But Congress’ intention when amending the ACA should be more important for severability than their original intention. And what was the intention of the ACA as amended?

    Most charitably, Congress thought that a proper mandate with a penalty is no longer the best policy, and that it’s better to make a paper mandate that’s easily ignored; they would have removed it entirely but they didn’t have the votes. It seems to me that this clearly makes the new “mandate” severable: undercutting it like this means it’s obviously no longer intended to be a pillar on which the ACA’s viability rests.

    Less charitably, maybe Congress still saw the mandate as a pillar of the ACA, but undercut it intentionally: they wanted to cause ACA costs to spiral out of control, making it politically feasible to repeal it later. In this case, again severing it will do just as well.

    Or they may have sought to repeal the ACA with fewer political consequences by intentionally making it unconstitutional. I’m not familiar with the history of such cases. But it seems to me that SCOTUS shouldn’t act as Congress’ lackey, especially as there is an entirely reasonable alternative.

    1. Actually the individual mandate was purely to game the CBO score so Obama could run on more people getting coverage under the ACA in 2012.

      1. That may or may not been part of Congress’s motives, but it actually has an effect on the insurance premiums.
        The majority of people that were brought in by the mandate were young and healthy – the very people that would choose not the have insurance. By forcing them to pay premiums for insurance they were unlikely to use, it could compensate for the increased costs of other new patients and expanded service requirements.

    2. Simply stated, when Congress writes laws, it can choose to include or not include a severability clause. If included, then a court could sever one part of a law without the entire law being struck down.

      Congress chose not to include a severability clause in the ACA. Hence the situation whereby if one part violates the Constitution, it cannot be severed; instead the entire law becomes unConstitutional.

      1. Excellent point. The ACA has been upheld so the issue is does the Trump tax cut have a severability clause?

      2. That’s not how it works. If Congress does not include either a severability or inseverability clause, then the courts must decide whether a given provision is severable.

  11. I don’t understand how or that your post supports the proposition that the suit is “necessary.” “Necessary” to what? Making a hollow, no-consequences rhetorical point? Getting guaranteed issue and community rating struck down? That’s not something that will help Republicans unless they have a backup plan that can pass Congress quickly, which they do not. Strike down the whole ACA? A nightmare, as even Republicans should realize.

    1. You can thank the Progressive Democrats for this nightmare as they did not include a severability clause.

      1. The presence or absence of a non-severability clause has very little impact on the courts’ analysis of severability, something Congress would have been aware of. With an Act that contains as many disparate provisions as the ACA (I am no fan of the omnibus acts Congress passes, which both parties indulge in, but it is what it is), there’s probably no one-size-fits-all guess that Congress can make about severability. The question whether provision 1,244 is severable if provision 523 is struck down might present quite different issues than the question whether provision 45 is severable if provision 2,396 is struck down. It’s best to leave (or at the very least I can see why Congress might think it’s best to leave) the issue of severability to the courts if and when a provision is struck down and we know what the issues are. In any event, the Supreme Court has said that the absence of a non-severability clause doesn’t create even a presumption of severability, and I wouldn’t fault Congress for taking the Court at its word.

    2. Necessary for right-wing lawyers to show off their skill at legal pettifoggery.

  12. Nearly a decade after its enactment, the Affordable Care Act remains under constant siege. Indeed, covering Obamacare reminds me of the film Groundhog Day: the same script repeats itself over and over again, in slightly different contexts.

    It’s almost as if some people are determined to legislate judicially what they can’t get Congress to do via the ballot box.

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