Affordable Care Act

President Trump Rejects Premise of Justice Department Briefs in ACA Case

Once again, the President's Twitter feed contradicts the claims of his lawyers.

|The Volokh Conspiracy |

Last night, the President tweeted about his health care policy accomplishments:

According to this tweet, the President "terminated" the individual mandate, presumably by signing the federal tax reform bill that eliminated the tax penalty that had been used to enforce the Affordable Care Act's minimum coverage requirement, which is usually referred to as the "individual mandate." By zeroing out the tax penalty for failing to obtain qualifying health insurance, the tax reform bill turned the purported requirement into nothing more than a precatory statement, as there is no consequence for anyone who fails to comply with the statutory requirement.

Interestingly enough, the Department of Justice does not share the President's understanding of what happened to the mandate. For while the President is taking credit for eliminating the mandate, DOJ is in federal court arguing that the mandate still exists and is capable of imposing Article III injuries on individuals. According to DOJ, there is still a legal obligation to obtain qualifying health insurance, and that anyone who purchases insurance in order to comply with that requirement has suffered an injury-in-fact that satisfies the requirements of Article III standing.

A perverse corollary of DOJ's position is that Congress and the President, by zeroing out the tax penalty for failing to obtain qualifying health insurance, actually made the Affordable Care Act more coercive on the American people. This is because, after NFIB, Americans were left with a choice—obtain health insurance or pay a "tax." This was deemed not coercive by the Supreme Court, which stressed there was no consequence for failing to purchase health insurance other than paying the "tax." DOJ's position, however, is that once the tax penalty was zeroed out, the mandate actually imposes a real obligation to purchase insurance. In other words, DOJ's position is not only that Congress and the President failed to "terminate" the individual mandate, but also that President Trump—by signing the tax reform bill—actually made the mandate more coercive, by eliminating the choice to forego health insurance and pay a "tax."

In most cases, when President Trump tweets something that contradicts the statements of other government officials, it's safe to assume that the President got it wrong. In this case, however, the President is actually the one who got it right.

[Post-script: There's actually an argument that the President is wrong here, but not in a way that helps the DOJ's position. There is a serious argument, made by my co-blogger Randy Barnett here, that NFIB v. Sebelius actually eliminated the mandate, leaving just a tax penalty. Under this view, there was no mandate to eliminate, just a tax penalty to zero out. Another implication of this view is that, if the DOJ is right that there is a mandate to challenge, then the tax reform bill somehow managed to resurrect the individual mandate and reimpose it on the American people. Otherwise, there would be no mandate capable of imposing a legal obligation, let alone an Article III injury.]

NOTE: The last paragraph was edited for clarity.

 

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  1. The problem here really comes from the fact that Roberts’ “saving interpretation’ was utter BS. The ACA didn’t just impose a mandate, and specify a penalty for failure to comply: It repeatedly referred to the penalty as a penalty. Sure, it was a penalty implemented through the IRS, but it was a mandate and a penalty.

    The Court should absolutely have treated it as a command, not a choice.

    Congress later zeroed out the penalty, but the language of the law is still the language of command, not choice, and it is arguable that at least some people could face consequences for failure to comply. Parolees who may go back to jail if they break a law, bar applicants who have to be law abiding. The threat is hypothetical, but is should be enough.

    1. But it wasn’t BS. Back in the 1920s, when the Commerce Clause was interpreted to prohibit Congress from regulating employment, Congress passed a “tax” on companies employing child labor. It called it a tax. It Said so right in the law.

      But when the Supreme Court reviewed the law, it devised a functional test and ruled that functionally, what Congress had passed was not a tax within its taxing power. Rather, it was a penalty that rendered the law an unconstitutional regulation of purely intrastate commerce.

      Why should the Supreme Court apply exactly the same nearly century-old functional test in the reverse direction, to hold that something that Congress had declared to be a penalty is functionally a tax and hence should be evaluated under the taxing power, not the interstate commerce power.

      You may disagree with the result. But CJ Roberts absolutely didn’t simply make it up. The test has been on the books for many years. And Roberts applied it exactly as written.

      1. Sorry, why shouldn’t the Supreme Court apply…

      2. Also, it’s at least arguable that at least some people cross the street, there might be consequences. But does this give you Article III standing to sue every automobile owner in the country? Because you might arguably be injured if you cross the street, this means you’ve suffered an injury sufficiently real and immediate to create a case or controversy with that automobile owner?

        1. If there is actually somehow a majority opinion at SCOTUS accepting the standing argument in this case, the dissent is just going to be a copy-paste of Alito’s opinion in Clapper.

      3. Isn’t that the reverse conclusion? Functionally, the ACA mandate wasn’t a tax. Rather, it was a penalty.

        1. Wasn’t that the unconstitutional part the tax interpretation was supposed to save? Congress trying to make it illegal for you to sit there with your heart beating and doing nothing.

      4. The Supreme court turns that “test” on and off depending on whether they want to uphold the law in question. It’s not a test a law they like can fail. The NFA, for instance, imposed a “tax” of something like 10,000% on some articles such as suppressors, but the Supreme court upheld it, saying that so long as Congress calls something a tax, and it could theoretically raise any revenue at all, who were they to dispute it?

        In this case, they didn’t even pretend it was a tax, and the Court pretended for them. And you may not mind their doing it, but it was something new, they’d never gone that far before.

        1. Well, if you have a business license tax of $50, and the business loses money that year, it’s an infinite percentage of the profits. And yet I think most people would agree that a $50 annual payment for a business permit is still a tax, not a penalty. This means the absolute amount of the tax has to also matter, not just the percentage of the relevant transaction.

          Is a $200 payment for a home-made gun still a tax even when the gun is made of extremely cheap materials and isn’t worth much? It’s certainly more arguable than a $50 business permit. Maybe the absolute-value line should be lower than $200. But if we agree $50 is below the line, I don’t think a ruling that $200 is below the line can be called completely crazy. I think reasonable people could disagree.

          1. I assume you’re talking about the $200 gun manufacture permit tax applied to someone making a single cheap home-made gun.

            I understand you’d consider it excessive. But once you accept the validity of charging a permit fee in the first place and then look at it in the context of other permit fees, I don’t think it’s as pretextual or obviously pretense as you are claiming.

          2. The NFA of 1934 levied a $200 “tax”. In 1934, the average income in the US was about $3,100. At the time a suppressor would have cost about $5, so we’re talking about a 4000% tax as applied to suppressors. For machine guns it was merely 100% or so.

            Adjusted for inflation, you’re talking a tax in today’s dollars of $3,800. Adjusted to the same fraction of household income, $5,800.

            I should note that the authors of the act explicitly stated that the objective was to make these firearms and accessories unaffordable. Though they didn’t go so far as the ACA did, in actually calling the penalty for buying them a “penalty”.

    2. “Parolees who may go back to jail if they break a law, bar applicants who have to be law abiding.” Then they can sue, they would have standing. The plaintiffs in these cases are not parolees or bar applicants however. Do you have any examples of such people who are harmed by the mandate?

      “The threat is hypothetical, but is should be enough.” That is the opposite of how standing works. If it’s hypothetical it is not a case or controversy. It rejects everything that Roberts, Alito, and Scalia, and every other justice have said about standing for the past thirty years. It’s even beyond Douglas’s suggestion that trees have standing.

      As for the penalty/tax issue, keep in mind that while labels are important and informative, they are not dispositive, nor should they be. Consider the opposite scenario: Congress imposes large daily taxes for failure to obtain health insurance. I don’t think you would be arguing that the label of a “tax” should prevail, when it is acting like a penalty. The real B.S. was probably waving away the applicability of the Anti-Injunction Act. I think Kavanugh in his Seven Skies dissent and the Fourth Circuit in Liberty University v. Geithner had the better argument.

      1. Until a parole officer or bar committee actually enforces the law and actually gives it the interpretation the plaintiffs attribute in doing so, parolees and bar exam applicants have only a speculative belief that parole officers and bar committee members might someday chose to interpret the law a particular way and to give it a particular enforcement priority. This type of speculation about how discretionary officers might someday choose to exercise their discretion results in less basis for standing than the general public has do laws that have actually been interpreted and enforced (against others people) in the past.

        1. I’m not so sure I agree with that. So in the standard parole/probation orders there is generally a requirement from breaking the law. So a parolee who has that order and is conflicted between violating the terms of probation or purchasing health insurance (perhaps insurance he or she cannot afford) could create a cognizable injury for standing purposes because they are faced with breaking the conditions and risking a violation or paying money for insurance they may not want.

          In any event, I think that would be an as-applied challenge and not a basis for a facial attack on the entire law.

      2. “Standing” standards have been so watered down over the years, that even hypothetical injuries pass muster.

        1. No? Did you read Alito’s opinion in Clapper v. Amnesty Int’l? Or Spokeo v. Robbins? Because that is actually the opposite of what happened.

          1. You make a good point, but what I believe you see in those cases is the pendulum swinging back again, at least somewhat. For instance, in the 90s, potential visitors to federal parks were given standing to sue about timber policy regarding the Spotted Owl. Those types of decisions didn’t come out of nowhere.

            Feel free to outcite me, because I’m speaking in generalities here.

    3. Or perhaps the problem is the Court rejecting that the requirement to carry health insurance was Necessary and Proper to carrying into execution the regulations on guaranteed issue and community ratings? Neither of us gets to re-litigate those issues.

    4. “The ACA didn’t just impose a mandate, and specify a penalty for failure to comply: It repeatedly referred to the penalty as a penalty.”

      You state this with such fervor, it seems a shame to point out that it’s entirely pointless. It doesn’t matter how many times they call the tax something other than a tax, that doesn’t magically make it not a tax. This it true whether you call it a “penalty”, or a “revenue enhancement”, or an “opportunity funding mechanism”. It is what it is. I used to think it was dumb when the pols tried calling the taxes they passed somethihng other than “taxes” because you’d have to be pretty stupid to not see that calling it “not a tax, for sure!” doesn’t make it not a tax. But apparently, the tactic DOES work on some people.

      1. Basically what you’re saying is that Congress can fine you for doing or not doing anything, so long as the penalty is financial. If they call it a tax, how dare anybody dispute it. If they call it a penalty, well, words don’t really matter, do they?

        So, they can order you to buy broccoli, and maybe eat it, and fine you $10,000 if you don’t. Maybe per day.

        Apparently you just want Congress to have the general authority the Constitution deliberately doesn’t give it, and view the power to tax as a handy excuse to give it to them.

      2. Adler of all people should realize the futility of holding any one to any standard of precision in the use of words regarding the ACA.

        I’m referring particularly of the phrase “enrolled in through an Exchange established by the State under 1311” which Adler probably still hears sometimes in his sleep.

        Or Congress stating explicitly the mandate was not a tax, and the Supreme Court overruling that express congressional intent and saying the mandate was a tax. I can’t think of anyway to consider that an ruling that seeks to find the original public meaning in a statute.

        But if after that he’s going to insist on analyzing the President’s tweets as if they were legal briefs I have to just stand back in wonder.

    5. I think I get it now. Despite the lack of criminal penalties in the ACA mandate, the extremely unlikely arrest of a parolee who fails to purchase health insurance is a hypothetical that should be treated seriously enough to void the entire law.

      However, the reasonable likelihood that undocumented people may be less likely to participate in a census that includes a citizenship question, resulting in a possibly significant under-count, is so much garment-rending by progressives and a risk he is willing to take.

      I was kidding, of course. I already knew that.

    6. Parolees don’t go back to jail if they “break the law.” They go back to jail time if they commit *crimes.* When’s the last time a parolee went back to jail for getting a parking ticket—a civil violation that, unlike failure to maintain insurance, actually carries a penalty.

      Failure to maintain insurance is also not a basis for denying admission to the bar, at least in Virginia. https://barexam.virginia.gov/cf/cfreq.html

  2. I stand stronger than anyone in protecting your Healthcare with Pre-Existing Conditions.

    Jonathan,

    Are you seriously claiming that Trump got this right? Really? You believe that Trump and the GOP have any sort of plan at all, beyond repealing Obamacare, much less one that protects people with pre-existing conditions?

    1. Here’s my plan. Stop importing illiterate third worlders for Democrat Party votes.

      1. A Trump fan complaining about illiteracy?

        Carry on, clinger. Until you are replaced.

      2. Most “third worlders” are more literate than most Americans. And exactly what is your proof that undocumented immigrants are voting illegally?

        Oh wait – you don’t have any.

        1. Don’t you liberals ever get tired of the lies? And they don’t need to be voting illegally. Their “citizen” children are voting for Democrat Party politicians.

          1. “Don’t you liberals ever get tired of the lies? ”

            You don’t seem to care what they think. You keep coming back, with more lies, and new and exciting versions of the same old ones.

        2. I posted this in a thread the other day about the Census, here it is copied and repasted: I have been a voting site manager for a County Clerk where I caught two non-citizens voting. You know the reason why I caught them? Only because they (a couple that came in together) said to poll workers that they thought that they could only vote in Federal elections as non-citizens, so they had questions about the ballot they received that had local elections on them.

          After a poll worked told me about the conversation (he gave them the ballots too) I pulled their names from the database (they had just registered with valid IDs at that) and I passed it on to the State’s Attorney. It was not much investigative time to determine that they were not-citizens and they were prosecuted for it with a slap on the wrist.

          How often does it happen? I can’t say. But it DOES happen.

          1. “How often does it happen? I can’t say. But it DOES happen.”

            Sure. And hot girls sometimes date short, bald guys. But does it happen enough to change anything?

            1. Yes. It does.

              Based on survey data, 6.4% of all non-citizens voted illegally in the 2008 election, and 2.2% of non-citizens voted illegally in the 2010 midterms.

              That’s enough to easily sway close elections, like the 2008 Senate race in Minnesota.

              1. What survey data?

                1. Peer reviewed, Richman et. al, 2014, Electoral studies.

                  The numbers actually stand up reasonably well, based on recent studies in Virginia, where it found 5556 non-citizens were removed from the voting rolls due to discrepancies found, and of those 1852 had cast ballots.

                  That represents a non-citizen voting rate of ~0.4%. Lower, but these were only the cases where the illegal voter registrations were found via discrepancies.

                  Moreover, several states actively suppress any knowledge of non-citizen voting.

              2. Sounds like Richman’s debunked Internet survey.
                The Trump campaign tried to push that back in like 2017 when Trump was going off about how he totally won the popular vote. It was laughed out of public discourse then. Amazing to see it pop up again.

                1. You’re only going to have bad survey data, so long as any effort to gather better data results in the left going to DEFCON 1 and mobilizing the judiciary to keep the data from being obtained. Historically the Democratic party goes totally bonkers at ANY effort whatsoever to measure, prevent, or penalize illegal voting.

                  1. Indeed. Not a single case of non-citizen voting in California was found in 2016.

                    Statistically, based on current known cases of non-citizen voting in various other states, this is so extraordinarily unlikely, that we must assume California simply isn’t even attempting to document or prosecute non-citizen voting.

                    1. So the fact that no case was found in CA proves that there must have been some?

                    2. If you told me that voting fraud was rare in California, I’d be somewhat skeptical, but strange things do happen.

                      If you tell me it’s nonexistent, I know you’re not looking for it.

                    3. Nonsense.

                      It might be rare enough that an honest investigation missed it.

                      Here is some information from Ohio’s Republican Secretary of State.

                      Even Jon Husted could only find 52 possible violations in 2016.(link below)

                    4. Husted link put here to dodge censors.

                    5. So, Bernard, think about those statistics for a second.

                      Ohio found 52 violations in 2016. That’s in a population of 11.7 million people, with non citizens making up 2% of it’s population. So, 234,000 non-citizens

                      California, by contrast has a non-citizen population of 13%, with 39.5 million. That’s a non-citizen population of 5.1 million. More than 20 times as high as Ohio’s Yet despite having 20 times as many non-citizens, not a single case was found in California… What are the statistical odds there?

                      The crime rates between the states aren’t that dissimular. Perhaps the largest difference is the homicide rate, that shifts from 11.4 to 1.4 per 100,000 people. The larceny rate is between 934 and 2100 per 100,000 people. The rate of forcible rape is between 160 and 16 per 100,000 people. Ohio just showed a non-citizen voter rate of 22 per 100,000 non-citizens, according to your numbers.

                      But you’re going to tell me that California somehow magically breaks the statistical distribution for crime within the states, and drops off to “zero”. Not 2.2 per 100,000 non-citizens, which might be believable, but “zero”?

                      If California or Alabama came out and said “We had no murders this year. Zero”. Would you believe them? Based on all the other statistical evidence? Or would you suspect something else?

                    6. Without more, lack of evidence a thing exists is not proof it exists and is being covered up.

                      That’s tin-foil crazytown.

                    7. And this is the part of the conversation where Sarcastro denies statistics, statistical variation, and science in general.

                  2. When 98+% of such efforts are fraudulent, and based on lies from people like Christian Adams, Hans von Spakovsky, and Kris Kobach, it’s not worth the effort to sort out the one or two that might make sense.

                    If you guys stopped the BS, stopped the outright suppression, and paid attention to making it easier for citizens to vote you might get taken seriously if (and only if) you identify a real problem.

          2. Since they were prosecuted there’s a public record. What are their names and what jurisdiction? I’d love to read about it.

    2. Plan? No, mostly just some pablum about Health Savings Accounts. The right is to theoretically scattered on health care to come up with a GOP-wide “plan”. Many want some sort of free market approach, but to protect existing entitlements, the latter of which make a free market approach about impossible.

      That said, repealing Obamacare would itself be a terrific victory towards freedom. Why is a “plan” necessary anyway, btw? Nobody “plans” 1/5 of the economy and does it successfully.

      1. The freedom to die poor is my favorite freedom.

        1. Your quip isn’t clear. Are you talking about assisted suicide, or making a joke that without Obamacare, a person is more likely to die than if it existed?

          Also, don’t conflate health insurance with health care. They are two different things.

          1. While insurance and care are different, in the United States the former is required for access to the later except in emergencies. So getting rid of the Medicaid expansion will now result in people not having the insurance required to access care. What do you think will happen to them when they are no longer on Medicaid but cannot afford insurance? Or what do you think will happen to people with preexisting conditions who cannot afford insurance on the private market but don’t qualify for Medicaid? Or people who reach a yearly or lifetime cap on coverage once those are reimposed?

            1. You ask to many hypotheticals for an indepth response on any of them. That said, maybe I missed all the dead people before Obamacare was passed a decade ago, way back in the dark ages.

              Also, there is zero evidence that the Medicaid expansion improved the health of anyone. The most it did was improve the mental outlook of those who were covered but not previously, and increased usage of the health care system. Look up the Oregon Medicaid expansion study where there was a randomized experiment by comparing a control group of those who didn’t get on Medicaid and those who did.

              Getting rid of Obamacare doesn’t get rid of the Medicaid expansion for those states that did it. That was the bargain that the states that took it made, knowing that (perhaps) the funding won’t always be available.

            2. ” in the United States the former is required for access to the later except in emergencies. ”

              Seriously, that’s not really true. The medical profession DO take cash, you know. In fact, many doctors are starting to go the “concierge medicine” route, where you put your doctor on a retainer, and use of insurance is disallowed; They find eliminating the cost of the insurance company mandated paperwork is worth it.

              Then there are the “Medi-Share” programs that, rather than operating as insurance, just pool expenses in a group for covered procedures.

              In fact, I’d say you’ve got it backwards: The best case for insurance being necessary are the emergencies, not routine care.

              1. The best case for insurance being necessary is the possibility of expensive prolonged illness.

                I doubt many oncologists or cardiac surgeons do “concierge practice” because they don’t have a set of patients that they see regularly over a long period, as internists do. And my internist, for one, does do a version of the concierge practice, but he has no problem taking insurance.

        2. Seems more like your favorite freedom is robbing your neighbors consequence free.

      2. The right is to theoretically scattered on health care to come up with a GOP-wide “plan”.

        Well, OK.

        But then they should quit promising to provide one. Their statements on health care are ridiculous lies.

        but to protect existing entitlements, the latter of which make a free market approach about impossible.

        Yes. But they won’t admit that, or that a “free market” approach isn’t going to work. We didn’t have that before Obamacare, with tax-privileged and highly regulated employer-based plans.

        And if you don’t have protection for those with pre-existing conditions you don’t have a health plan at all.

        Why is a “plan” necessary anyway, btw? Nobody “plans” 1/5 of the economy and does it successfully.

        For the above reasons, plus a few others:

        1. Health care is something almost everyone wants insurance for. Costs are unpredictable, and can be very large.

        2. Insurance that can be cancelled, in effect, because you need it is not very good insurance. See “pre-existing condition.”

        3. Without a government framework, reliable, decent, health insurance is going to be unavailable to many people.

        1. “Their statements on health care are ridiculous lies.”

          Yes, statements on Obamacare were lies.

          1. But at least Obamacare actually exists. Where is that “better, cheaper” alternative that Trump was going to sign on day one?

            1. Perhaps he made the mistake of thinking the GOP hadn’t been lying about having a plan.

        2. Health insurance with pre-existing conditions isn’t insurance, it’s welfare. Telling people that, I feel like that old woman in the commercial “that’s not how insurance works.” You don’t contact Geico after you crash your care. And even prior to Obamacare, those with pre-existing conditions were always able to get on an employer’s group plan. I assure you, someone at any company that provides its employees coverage (like my workplace) has hired someone with diabetes or was a cancer survivor.

          The fact that this hybrid system we have with government dictates but private actors doing their bidding produces only so-so results, doesn’t mean that a free market system won’t work. Simultaneously, we do know a fully gov’t run model doesn’t work very well either, producing so-so results, based on the experience of other countries.

          As to your bulleted list:

          “Without a government framework….”

          Okay, I agree, government creates a framework for lots of markets already.

          “…reliable…”

          Define that.

          “…decent…”

          Define that.

          “…health insurance is going to be unavailable to many people.”

          How many people, and at what cost, and compared to what alternative?

          In short, you run into two problems. Health care as a positive right puts obligations on other people to provide it, and secondly, health care is a service to which most people if given the opportunity will take as much as they can get.

          1. Now do Social Security.

            1. It’s welfare too.

              1. :yep:
                The strawman that anyone argues otherwise about the ACA is a new one, but is persistently coming up this week.

                1. Well, people have been claiming forever that having low-risk insured subsidize high-risk insured is just “how insurance works” but that’s flat out wrong.

                  1. But that’s risk pooling. If we’re going to use this kludgy way to do out entitlement (on accounta how Clinton was buffaloed by the insurance industry back in the day), you need good risk pooling.

                    It’s not an attempt to deceive the public.

                    1. Risk pooling and insurance are two different things. Insurance pools risks among people exposed to the same risk, it just averages expected costs: $100 a year (Plus overhead and profit.) instead of a 10% chance of $1000.

                      Corporate insurance plans often do risk pooling between people exposed to different risks, in addition to the insurance aspect; The company gets billed for the average risk of their employees. But that’s an internal company decision to subsidize the insurance of some employees.

                    2. Risk pooling and insurance are two different things. Insurance pools risks among people exposed to the same risk, it just averages expected costs: $100 a year (Plus overhead and profit.) instead of a 10% chance of $1000.

                      Insurance pools risk among people exposed to the same set of risks, in this case those associated with needing medical care, in others those associated with driving a car, for example.

                      Corporate insurance plans often do risk pooling between people exposed to different risks, in addition to the insurance aspect;

                      No. It’s still health-related risks. Sure, those differ among different people, mostly in degree, but it’s still a defined set of risks.

                    3. In Arizona and Michigan you’re going to be exposed to the same “set” of risks, but the magnitude of the specific risks will be wildly different. And the magnitude matters, that’s why insurance companies employ actuaries.

                    4. Right, the size of the risk differs, but it’s the same risk.

                      A 20-year old Olympic rower and a 50-year-old smoker are both at risk of cancer, but the latter’s risk is much greater.

                  2. Well, people have been claiming forever that having low-risk insured subsidize high-risk insured is just “how insurance works” but that’s flat out wrong.

                    Not that wrong. Isn’t that how employer-based insurance works? In my experience the premium is charged on a per-employee basis.

                    1. IIUC small group plans factor in as many risk factors (such as age, tobacco use), etc. as they are allowed. Larger group policies are usually self-funded by the employer, so the just hire insurance companies to administer the plans.

                    2. But they still charge the same for every employee.

                    3. But that’s only because they’re subsidizing some of the employees. If those employees went out to get insurance on the individual market, they’d see radically different premiums.

            2. Sure… Social Security is a ponzi scheme. An inter-generational wealth transfer. ’nuff said.

              1. Good luck with that.

              2. It’s not a Ponzi scheme. It just shares many characteristics with Ponzi schemes. And lacks others, of course.

                1. The aspect it lacks is people being permitted to opt out…

              3. “Social Security is a ponzi scheme.”

                Yup. Like Greenspan said, “The notion that we have a trust fund is nonsense…a meaningless instrument that has no function … it’s exactly the same thing as current expenses.”

          2. Health insurance with pre-existing conditions isn’t insurance, it’s welfare.

            Sometimes. And yet you live with it at your workplace.

            But it’s a serious problem. At some point everyone has a pre-existing condition. I sure do. So you have insurance, and then develop a health problem, and then lose your insurance. Notice that there are a vast number of ways to lose it:

            1. Lose your job, maybe because you got sick, maybe for other reasons.
            2. Have your employer cancel its plan.
            3. Get divorced and lose the coverage you had on your spouse’s policy.
            4. Age out of your parents’ family coverage.
            5. Graduate from college and lose access to the student plan.
            6. Have an individual policy that is not renewed because you develop a problem.
            7. Have your insurer go broke.

            etc.

            Now what? Do you think that we, as a nation, ought to have some way for people to deal with the problem? Or do we tell everyone, “Too bad for you.”

            1. As a nation? No. As I said, we should not tax money spent on health care. Let the market deal with providing it.

          3. ” You don’t contact Geico after you crash your car”

            Why not? You could save 15%!

            Seriously, if you crash your car, and your current insurance either goes way up or becomes unavailable to you, you’re going to need car insurance if you plan to continue driving. At which point, you would start calling car insurance providers, likely starting with the one featured in the first car insurance ad you see. Which is why there are so many GEICO ads on TV.

            1. Right, but you don’t contact GEICO after your car crash, and expect them to cover THAT crash. And you know that’s what was meant. You don’t buy car insurance after the crash, and expect it to pay out for the crash. You don’t buy homeowners’ insurance after your house catches fire, and expect them to cover the cost of a new house. That really is NOT how insurance works.

              The ACA forced insurers to run a welfare program for the government, and then forced those paying for the welfare with more expensive, worse policies to buy those policies whether they wanted to or not.

              It’s the same as if the government ordered grocery stores to sell food below cost to poor people, and then outlawed home gardens to force people to buy at grocery stores.

              1. you don’t contact GEICO after your car crash, and expect them to cover THAT crash

                Right, which is why the mandate was thought to be needed, so that you were insured when you had the crash, and could continue to have insurance afterward.

                Tell us, what’s Trump’s great plan – that he boasts about so often – for covering those conditions?

                1. ” what’s Trump’s great plan – that he boasts about so often – for covering those conditions?”

                  Sucks to be poor, but I don’t care, because I was born wealthy.

      3. Other countries plan their health care sector just fine.

        And if no one plans something, the market does. Which in this case is just rationing weighted towards the wealthy. Fine for some stuff, not fine for health care.

        1. “Fine for some stuff, not fine for health care.”

          Well, that’s the crux of it, isn’t it? But it is impossible to effectively plan 1/5 of the economy. It ain’t like building a road, which the government is fairly good at. That morally we as a society provide government paid for health care because, for example, letting people die who couldn’t afford dialysis, doesn’t mean that the government should take over ALL health care. That is a logical fallacy.

          The system we have now, flawed as it is, produced so-so results, or great results, depending on how you measure it. Likewise for gov’t run systems.

          1. Other countries are a counterexample to your ‘impossible’ thesis.

            And the only thing worse than planning it is not planning it. You go from imperfect to amoral.

            I don’t see the fallacy in health not acting like other commodities across the board.

            1. Impossible, yes, because other countries with full gov’t run health care sectors are just as bad, if not worse, as the American one.

              Nobody “plans” a lot of things. Nobody plans the food being in your local grocery store, yet here we are with plenty, so plenty that the poor these days are fat. Same for countless other things. Gov’t getting out of the way is in fact the moral thing to do, because when the gov’t plans the food economy, it is an abject failure that leads to shortages.

                1. Yea, I’ve seen this, or at least similar comparisons. I think we need to get a few things clear.

                  First, are we going to compare the US to a fully gov’t run system like the UK or Cuba, or to the mixed public/private systems like France? They are two different things.

                  Secondly, by most measures the U.S. system is still enormously successful.

                  Third, while the U.S. is worse than some other countries, it’s not worse than them by much.

                  Fourth, how much better, or worse, depends a great deal on the measures you use. The U.S. is very good on low wait times and a high level of innovation for example. So much innovation, that the rest of the world free-rides off of the U.S.

                  Fifth, even if you compare health systems, cross country comparisons are tricky as culture makes for huge multicolinearity problems. Japan will always have a longer life expectancy and infant mortality rate than the U.S. due to culture.

                  1. We can compare it to both. We lose out compared to both.

                    The rest of your arguments are nigh innumerate flailing. ‘We’re still fine – not worse by much, (unless you count per-capita spending.), and the metrics are all crap anyhow – it’s all nonlinear and cultural! And our innovation is great!’

                    You do realize how desperate your excuses sound, don’t you?

                    If you want to argue that the death of the poor is the price we pay for freedom, fine. You’ll sound like a privileged ideologue without empathy, but at least you’ll be consistent.
                    But if you want to argue that there is no price, we just rule and are free and are the best, you’re going to have to do a lot better than attacking well accepted studies with that unengaged hodge-podge.

                    1. Our system isn’t great, but there’s no need to go all commie. There’s a simple fix: Make all health care tax deductible, thereby breaking the link between employment and healthcare and creating a real health insurance market. Obama tried something like that with the Cadillac tax, but that proved unsustainable. Eliminating health care taxes would be easier to do.

                    2. So just about all of Europe is commie, TiP? Don’t be dumb. Argue good or bad policy without the redbaiting.

                      And disaggregating from employment doesn’t actually address the problem of poor people not getting covered. In fact, it makes it worse since they’re not paying a lot of taxes anyhow.

                    3. Yeah, pretty much all of Europe is somewhat commie, and their economies have suffered as a result.

                    4. “Our system isn’t great, but there’s no need to go all commie. There’s a simple fix: Make all health care tax deductible,”

                      If the sick people aren’t paying taxes, the healthy people’s taxes will have to go up to cover the revenue shortfall. So, you’re advocating a tax hike on me. Then, of course, people too sick to work aren’t paying a lot of income taxes, so there’s the problem that your “fix” doesn’t actually work. Will your “health care tax deduction” be refundable? So the ginormous portion of the population that already pay no federal income tax, actually get a refund? How well set up will the fraud detection be?

                    5. Yeah, pretty much all of Europe is somewhat commie

                      First, your abuse of the term like this makes it useless. If all of Europe is ‘somewhat commie’ then communism ceases to be much of an evil. So maybe save tarring things as commie for the the actual oppressive communist states in our history.

                      Second, I remember a discussion with you that technically you prefer the term fascist to communist. Nice to see you’ve climbed down from that particular semantic tree.

                    6. Obama tried something like that with the Cadillac tax, but that proved unsustainable.

                      “Unsustainable” meaning Republicans didn’t like it.

              1. m_k,

                Just FYI, the food analogy, popular as it is, is an extremely poor one. The most obvious problem is that most people, very sensibly, want to have health insurance, but not “grocery insurance.”

                That’s because groceries are a regular, highly predictable expense. Nobody goes without eating for a couple of years and then needs to buy $10,000 or $100,000 worth of groceries all of a sudden.

                Medical expenses are highly variable and unpredictable, and at the upper end can easily be bankrupting, so we want insurance. And as soon as you have insurance you have a lot of attendant problems, especially with something as complex as health.

              2. “Nobody plans the food being in your local grocery store”

                You are badly misinformed. Every square inch of your local grocery store is planned.

              3. ” Nobody plans the food being in your local grocery store, yet here we are with plenty, so plenty that the poor these days are fat. Same for countless other things. Gov’t getting out of the way is in fact the moral thing to do, because when the gov’t plans the food economy, it is an abject failure that leads to shortages.”

                Wait. The US government actually intervenes rather heavily in the food economy… From your logic then, the US is blessed with plenty of food, but also is an abject failure that leads to shortages.
                Egads! You’re right!

      4. That said, repealing Obamacare would itself be a terrific victory towards freedom

        I can’t quit my job and start a new business because of the lack of affordable health insurance options that my company now provides me and my family.

        That’s restricting my freedom. Just imagine the gains in the economy if people had the freedom to start new businesses without the fear of a single illness bankrupting them.

        1. Obamacare never provided “affordable” health insurance anymore than the market did before it. There was an individual payer market prior to Obamacare, and it was in some ways better because it was scalable.

          Yes, job lock is a real thing. It was before Obamacare and it still is now, for a variety of reasons. Imagine the “freedom” if everyone could sell their house for at least what they paid for it and move anywhere in the country, or if people didn’t have to worry about pulling their kids out of school, or missing their hometown.

          Look, if you can’t take a risk, and create a viable business plan with enough income to pay for your health insurance during your start-up phase, maybe it’s not a good business plan. But I’ll challenge you, do you have any evidence of a flourishing of entrepreneurism that happened post-Obamacare, because of Obamacare?

          1. Look, if you can’t take a risk, and create a viable business plan with enough income to pay for your health insurance during your start-up phase, maybe it’s not a good business plan.

            Easy glibertarianism. But individual plans are expensive as hell, or were in “free market” states, before Obamacare.

            Besides, even good business plans can fail.

            1. Arguing that people should have the ability to take the risk of starting a business, instead of being shackled to their job because they need or perceive a need for health insurance, is actually a badly concealed plea for socialized medicine.

              1. The clinger bleating aside, single-payer health care will be enacted in the United States soon enough. It’s inevitable. That’s why the clingers aren’t even trying to devise, let alone implement, an alternative. Mostly, they just whine. As they have for more than a half-century, while the mainstream shapes progress against conservative wishes and works.

            2. The answer is to give health insurance the same tax status no matter where you obtain it: From your employer, from Costco, from your church or block club or the NRA or the DNC.

              That solves job lock, and largely solves the whole “preexisting conditions” fuss, because you could stay on the same plan from birth to death if you wanted, despite moving and changing jobs.

              Then make HSA’s available to everybody, and stop forcing insurers to cover predictable expenses. Paying for predictable expenses through insurance just drives up their cost.

              Finally, end the balkinization of health insurance by allowing it to be sold across state lines, and ensure price transparency.

              IOW, restore the free market that WWII wage and price controls destroyed.

              1. “IOW, restore the free market that WWII wage and price controls destroyed.”

                Go back to the Depression? No, thanks.

                1. So you want to claim that the Great Depression was so comprehensively awful that every single solitary thing we did or refrained from during it is forever more prohibited? That’s kind of a tough position for somebody who likes the regulatory state, which was born during, and prolonged, the Great Depression.

                  1. “So you want to claim that the Great Depression was so comprehensively awful that every single solitary thing we did or refrained from during it is forever more prohibited?”

                    You don’t?

              2. The answer is to give health insurance the same tax status no matter where you obtain it: From your employer, from Costco, from your church or block club or the NRA or the DNC.

                That solves job lock, and largely solves the whole “preexisting conditions” fuss, because you could stay on the same plan from birth to death if you wanted, despite moving and changing jobs.

                You mean all these organizations would guarantee to stay in the insurance business, with no cancellations, forever? Really? They wouldn’t go broke, have to raise premiums unreasonably, get out of the business? And they are all national and guaranteed to stay that way?

                Who exactly is going to back all this up, make sure the plans can cover claims, etc.?

                Do you even think about these things before you offer these ludicrous libertarian fantasies?

        2. “I can’t quit my job and start a new business because of the lack of affordable health insurance options that my company now provides me and my family.”

          Weird, didn’t we pass a huge piece of legislation in 2010 to solve that problem?

      5. Actually Obamacare made a free market approach more possible, if the GOP would start trying to take advantage of the opening at the Federal or state level.

        The extremely high deductibles in the Obamacare plans, combined with the huge increase in out of network providers make legislation for price transparency, and requiring that people paying at time of service get the lowest negotiated rate, would do a lot to put the free market back in healthcare.

        Just look at the difference in the prices for Lasik which isn’t covered compared to similar procedures that are covered by insurance. Or the diagnostic scan market where the exact same procedure ordered by a physician costs 5 to 10 times what someone walking off the street is charged to get an informational scan.

    3. I know, right? I’m with Sanders, myself. The Gulags actually had excellent health care.

      1. Um, no they didn’t. What on earth are you talking about?

        1. I think he’s trying for a ‘Sanders loves the USSR’ play.

          You know, the old red-baiting playbook that was old decades ago.

          1. Don’t believe the capitalist propaganda. They paid a living wage, the guards cared enough to “visit” the inmates, etc.

          2. It’s old, but it still works because there are still lots of people that believe the gulags weren’t too bad. It’s all over Twitter today, because Project Veritas dropped a video where got some idiot Bernie Sanders supporter talking about how the gulags weren’t bad, and the inmates got conjugal visits, and who implied that Trump supporters would have to go to them to be de-Nazified.

            1. Your source is suspect, your anecdote isn’t data, your thesis has nothing to do with Sanders himself, and your politics are from a highpoint of American thoughtcrime.

              1. Oh, you only wish. There is an entire leftist subculture that wishes for the gulags. It’s akin to those on the right would would deport every illegal alien en-mass. Leftists think the Gulag Archipelago was fiction. See this article: https://www.telegraph.co.uk/opinion/2018/09/11/students-defending-gulags-new-low-hard-lefts-rewriting-socialist/

                I was also merely pointing out why the topic is trending. Oh, and the Bernie Bro was serious, btw. Thank God that such a crazy socialist won’t will the party nomination…oh wait.

                That said, MY politics are from all over.

                1. Leftist Students?! Come on – political youth have been crazy forever. Next watch me take Free Republic as the heart of the American right wing.

                  Your efforts to demonize the other side say quite a bit about your shallowness, not a lot about Bernie Sanders.

                  1. What “leftist student”? This was a campaign coordinator on Bernie’s payroll. Well, he was until the video was released.

                    We don’t need to demonize people who have horns and stink of brimstone, Sarcastro. We just need to expose them.

                2. ” Leftists think the Gulag Archipelago was fiction.”

                  Um… weren’t the leftists running it?

              2. Is the source about Sanders saying that food lines are a good thing because that’s the only way to make sure the poor don’t starve to death, suspect too?

                https://youtu.be/zJBjjP8WSbc

            2. Project Veritas.

              Yeah.

              1. You don’t believe an actual video that shows you things?

                I absolutely believe people would stay stupid stuff like this.

              2. What’s your problem with Project Veritas? It’s got “Truth” right in the title, like Nazis with socialism and North Korea with democracy.

                1. Yeah, having “truth” in the name doesn’t matter, but having video does, unless the claim is that it’s some kind of deep fake CGI, or done using actors, not the real people.

                  The left just wants everybody to ignore Project Veritas because they expose things the left would rather remain hidden. Kind of a pain, the combination of cheap video recording and not everybody staying on message.

                  1. unless the claim is that it’s some kind of deep fake CGI, or done using actors, not the real people.

                    Those are the only exceptions? An actual video of actual people can’t be deceptively staged, scripted or edited?

                    1. It can be, but you have to actually establish it was.

                      In Bowling for Columbine, Moore took a half dozen speeches the head of the NRA had given on different occasions, cut them up, often in the middle of sentences, and assembled them into one fictional speech LaPierre never gave. You can even see his tie changing color during camera cuts. THAT is deceptive editing.

                      Nobody alleges that Veritas has done anything of THAT nature. Veritas edits for brevity, not to change content. They’ve established that in the past by releasing uncut footage when challenged.

                    2. With Veritas I don’t have to prove it.

                      I have a right to say it’s a hugely unreliable source, which has doctored videos in the past, and that they therefore have no credibility.

                    3. So Bernard,

                      Why not just watch the entire, unedited video, start to finish?

                    4. “Why not just watch the entire, unedited video, start to finish?”

                      How do you know you have the “entire, unedited video”, if you don’t trust the source?

            3. “It’s old, but it still works because there are still lots of people that believe the gulags weren’t too bad.”

              Meh. There’s some that don’t have a problem with us having a Gitmo, since, after all, we only sent terrorists there.

            4. Here’s a clue, m_k.

              Project Veritas is a bunch of dishonest, lying, shmucks.

              Cite them if you want, but understand that all you are doing is damaging your credibility, and identifying yourself as a gullible fool.

              1. Here’s a clue, bernard: You pretty much have to say that, because Project Veritas catches your guys on film saying some pretty horrible things, and you can’t just admit your side has a lot of really horrible people.

                But those really horrible people really do say those things, and they really are your people.

                1. A third possibility, Brett, is that if you carefully edit the context, you can catch people saying all sorts of things. The Daily Show has been doing this for, oh, a couple of decades now.

                  It REALLY helps to not have a “side”.

                  1. Everybody does editing, James. I’ve seen reporters choosing camera angles at a militia protest to avoid getting any black people on camera, because they didn’t want to disturb the narrative that the militia movement was lily white. I’ve seen them take a narrow shot of the one run down building on a bustling street, when they wanted to report that a prosperous town was depressed.

                    The simple fact that somebody took days of recordings and edited it down to a half hour or hour of pertinent footage doesn’t make the edit deceptive. That has to be independently established.

                    People who’ve screwed up and told the truth on camera are always going to claim deceptive editing.

                    1. That’s a lot of words, and yet not once did you address what I actually said.

                2. You’re right. We do have some horrible people. What group numbering in the tens of millions doesn’t?

                  I’ll even grant that among our horribles may be some that are pathologically dishonest, narcissistic and cruel, shamelessly corrupt and contemptuous of the rule of law, too arrogant to admit their ignorance and too lazy to do anything about it if they did, and thus historically unfit for public office.

                  Let me know when we put one of those people into the White House, insist that his shit smells like roses, and accuse anyone who dares point out his incessant and blatant malfeasance of derangement.

                  1. The question is, why would you feel the need to deny that a Presidential candidate whose parents were Stalinists, and who honeymooned in the USSR, might have some campaign staff who are themselves Stalinists?

                    Bernie has some nasty people working for him because he’s a commie, and commies are typically nasty people. That’s the ugly truth.

                    1. I thought I was clear. Though I reject your guilt-by-association red baiting, I take for granted that some indeterminate percentage of any candidate’s constituency, including Sanders’, are probably awful people. My point is simply that nutpicking those people from random staff and supporters, whichever side does it, is easy, anecdotal, and statistically worthless.

                      Do the hard work of turning it into meaningful data (e.g., the 70% of Republicans who still doubt Obama was born in the US), and you’ll have my attention.

                      Meanwhile, anyone who purports to care about the character of an irrelevant Sanders supporter while being unconcerned about possibly the worst human being ever to inhabit the White House is not someone whose opinions on such matters I take seriously.

              2. Listen,

                If they’re dishonest and lying, sue them into oblivion for libel and slander. If Sanderman can get $250 million from the Washington Post for libel, surely you can sue Veritas into oblivion, and prove they’re lying fools.

                OR you can admit that some lower level Sanders said some truly stupid things, on camera, and they will be severely corrected. Consider them a real life version of our good Reverend Kirkland here.

                1. He wasn’t lower level, according to the account. And multiple Sanders organizers locked down their Twitter accounts after this broke; Worried about what might be found?

                  Veritas’ usual tactic is to release something, wait until the target says it was isolated misbehavior, and then release more to demonstrate that, no, it wasn’t isolated. So the next few days might be interesting.

                2. ” If Sanderman can get $250 million from the Washington Post for libel”

                  That’s a pretty big “if”, and not based on reality.

              3. Well Bernie’s campaign is taking Project Veritas seriously, first they lock their Twitter accounts, then claim they were volunteers rather than paid staffers, and coming next is the firings, and the Soviet style airbrushing.

                1. Yeah, damage control is proof you’re guilty. That’s a very, very dumb take.

                  As I said, word has gone out to try for a red-baiting thing against Sanders. Note all the useful idiots marching to that drum.

                  1. “Why won’t Trump let Bolton testify?. It’s proof he’s guilty”.

                    1. That’s not damage control. Also, it’s obstruction of Congress.

                    2. “Why won’t Trump let Bolton testify?. It’s proof he’s guilty”.

                      It destroys the narrative he prefers where he’s being railroaded… they didn’t even let him have any witnesses for his defense! Look at all the people they didn’t even talk to when they were deciding whether or not to impeach him…

                2. What should he have done, Kazinski, called them “fine people?”

  3. What the President says is irrelevant.

    In the same way that it was irrelevant that a (different) president claimed repeatedly that the individual mandate was not a tax and DOJ argued the precise opposite.

    1. I wouldn’t say that anything a president might say is irrelevant to litigation — but I agree with you as a general rule and on these specific incidents.

      Politicians say things oriented toward political ends and do not naturally accord with what a law or act actually says or does. Another example I would include: Trump’s statements on a Muslim ban vs the rules actually implemented.

      Conservatives made much hay of Obama’s statements on the individual mandate and rightfully so! But as a matter of law, the courts decide, as Justice Marshall roughly put it, “what the law is.”

      Courts are wrong when they overly concern themselves with the comments of politicians.

      1. “Politicians say things oriented toward political ends and do not naturally accord with what a law or act actually says or does. Another example I would include: Trump’s statements on a Muslim ban vs the rules actually implemented.”

        Interesting that you implicitly lump Mr. Trump into the category of “politicians” here. Allegedly, one of the things his followers like about him is that he is not a “politician”.
        But, what your categorization boils down to is that politicians tell people what they want to hear, instead of the truth. In that sense, Trump is absolutely a politician. He finds lying to be much easier than actually having a command of the facts and the implications those facts bring.

        1. Yes, a politician.

  4. Prof. Adler:

    How would you grade a student who submitted an examination, brief, or memorandum that included “Healthcare” and “Pre-Existing Conditions” in the manner exhibited here?

    Would it work for or against the student that he may have outsourced the work to his former caddie?

    Do you overlook illiteracy when evaluating students?

    Thank you.

  5. This writeup is quite a stretch, using a tweet with imprecise language to launch into a whole diatribe. It acts as if the tweet is a formal legal briefing when it’s far more likely simply using imprecise, informal language to make a political statement.

    It’s entirely reasonable to say the popular meaning of “terminated” refers to the practical effect taxpayers will see in their wallets without going into the legal arguments of the DoJ.

    And I say that as someone pretty skeptical of the case against what’s left of the mandate!

    1. “…using imprecise, informal language to make a political statement.”

      I think the term you are searching for here is “lying.”

      1. Not so much “lying”, although there is plenty of it.

        Rather, it is the President’s desire to take credit for anything and everything that anyone finds admirable, and the fact that he claims credit for two (or more) mutually exclusive things is not a surprise.

  6. Trump wins this one because to voters — not legal scholars — will consider this a distinction without a different.

    At the end of the day they have the option of not getting health insurance and there is no monetary negative consequence from the government because of it. How many of them do you think bother to parse out the specific words of the tax code to this extent?

    They will, of course, show up for any and all government services to help them if it turns out they really needed the insurance after all. The “penalty/tax” was supposed to pay for that but I guess giving out “free stuff” instead doesn’t matter to ACA haters.

    Soapbox: I am sort of at the brink of that choice right now. My rather flaccid health insurance just went up 15% to over $1300 a month right now and there are no other options that are less. Even Kaiser was only $50 different last time I checked. But at least they couldn’t refuse me if I had some pre-existing condition which I don’t now but might at some point in the future. The ACA was the right direction but it simply did not go far enough.

    1. Just keep in mind, it was a mutually beneficial exchange when the government passed the EMTALA [Emergency Medical Treatment and Labor Act] under Reagan to make hospitals treat the uninsured (that those with insurance are subsidizing). The trade-off to the hospitals was that they were exempt from federal taxes. We are subsidizing the uninsured twice, once through the hospitals and a second time through your insurance.

      1. And a third time through tax credits for drug research, and a fourth time through federal grants to research universities, and a fifth time through…

        1. Actually, those things subsidize everyone.

          1. No, no, government subsidies only help socialists and people looking for a handout!

  7. Prior to Obamacare, more than 1/2 of the states (33 states, it says here: https://www.coloradohealthinstitute.org/research/colorados-high-risk-pool)
    …offered [subsidized] high risk pools to cover their citizens who were deemed “uninsurable” for whatever reason. Those state programs were targeted toward those people who needed them, and with state regulators situated closer to the funding and the beneficiaries of the programs, they were able to more finely manage them.
    Why is “pre-existing conditions” a problem to be centralized & (purportedly) solved at the national level?

    1. Because 1) the targeted programs were not proving sufficient to prevent healthcare related bankrupcies, and
      2) as you yourself noted we have more than 33 states, and it’s a travesty the remaining states were just letting poorer people ‘choose’ to get crappy care and die.

      1. Well done. Livin’ up to your name, yes?

        1. Same to you.

  8. Trump’s command of constitutional law presents us with an unexpected opportunity to resolve the problem of his presidency. Just get him to nominate himself to the Supreme Court.

    1. This is Trump you’re talking about. He’ll want to be nominated to all 9 positions on the Supreme Court at once.

      1. Trump may indeed have better judgement at times than the Supreme Court, as do we all. But he himself and his most diehard supporters know his talents are too large to straight jacket them in such a constrained and tedious existance as being a judge at almost any level. Judge Judy however he could do.

        1. “Trump may indeed have better judgement at times than the Supreme Court”

          Mr. Trump would have trouble defeating a small child in a judgment contest, much less an actual adult human person.

  9. I suspect Roberts is regretting his embarrassing “the mandate is a tax” opinion. The Court could have struck down the mandate while preserving the rest of the law, which is where we’re going to end up anyway.

    1. “The Court could have struck down the mandate while preserving the rest of the law, which is where we’re going to end up anyway.”

      That’s where we are today. That’s not the R’s desired end-state.

  10. “There’s actually an argument that the President is wrong here, but not in a way that helps the DOJ’s position. There is a serious argument, made by my co-blogger Randy Barnett here, that NFIB v. Sebelius actually eliminated the mandate, leaving just a tax penalty.”

    But the district court and the 5th circuit rejected that assertion, so the Supreme Court would still have to clearly state that the mandate was struck, and there is now not a mandate, instead of a penalty-less mandate.

    But no matter who is right, Barnett, Trump, DOJ, the various states on one side or another one thing is clear: Roberts decision was an embarrassing mess that tried to find a clever out, but just left everyone trying to figure how to clean it up. If you, Barnett, the DOJ, Trump, 50 states, and the American public can’t come up with a clear answer to whether the mandate died with NFIB, the zombie mandate still exists, or Trump fulfilled his pledge and killed the mandate, obviously the Supreme Court needs to make a clearer ruling this time and I suggest Roberts doesn’t assign it to himself.

    1. I suppose I could have been more concise and just said: “Damnit Roberts, you had just one job.”

      1. Why not blame the Congressional R’s, who had a chance to rewrite the law, and instead spent two years not doing that?

    2. “there is now not a mandate, instead of a penalty-less mandate.”

      Assuming that these are actually diffferent.

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