Affordable Care Act

Red State Challenge to Affordable Care Act Goes to SCOTUS (But the Arguments Remain Incredibly Weak) (Updated)

Today's cert grant is based on the importance of the case, not the quality of the arguments

|The Volokh Conspiracy |

This morning, the Supreme Court granted certiorari in Texas v. United States, the ambitious red state lawsuit trying to tear down the entire Affordable Care Act because Congress zeroed out the tax penalty for failing to purchase qualifying insurance. As Josh notes below, the case will be heard on the Fall (though whether before or after the election remains to be determined).

The reason for the cert grant is understandable: A lower federal court invalidated a provision of federal law, with potentially significant implications. This is often reason enough to grant certiorari. Of note, the Court accepted both the petition filed by the blue states challenging the Fifth Circuit's decision, as well as the cross-petition filed by the red states seeking to ensure that severability is among the questions presented to the Court. [Update: Though as Josh notes, the Court did grant the petition for certiorari filed by the House, either because granting the petition was superfluous or, as Josh suggests, because not even four justices believe the House has standing.)

As readers know, I believe this is a dog of a case. The argument that any of the plaintiffs have standing is quite weak, and the ultimate severability arguments are unmoored from existing doctrine as well as the original understanding of the Article III judicial power.

I critiqued the Fifth Circuit's opinion here. Most of my other prior posts on this case are listed in this post (except for this one).

NEXT: Will the Supreme Court hear the Obamacare cases before or after the 2020 Election?

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  1. The truth is, the ACA should have died on enumerated powers grounds: It’s rather transparently regulating intra-state commerce. And that’s not even getting into Roberts inventing penaltaxes.

    1. The Feds have been regulating intra-state commerce since the 1920s.

      That principle is dead.

      1. It’s still true: The ACA is grossly unconstitutional in multiple ways, even if the aspects of the Constitution it violates are ones the Supreme court has lost all interest in enforcing.

        Anyway, my view of the matter is that if we can evolve away from enforcing the Constitution, we can damned well evolve back to it. We are not doomed to never restore the rule of law in this country.

        1. Brett, imposing your particular understanding of the Constitution on the world and then railing about it is a fun hobby and all, but it’s a lot more useful to distinguish between is and ought based on our current institutional framework, not the Brett Is the Ultra-Supreme Court framework.

          1. It’s significant when my particular understanding of the Constitution conforms to what it was understood to mean up until FDR scared the Court with his packing scheme.

            I know you prefer a Constitution which is written in sand, but this one was written on parchment in real words with actual meanings.

            1. The Supreme Court held that Congress could regulate intrastate activity as early as 1824, long before FDR was born. I think you’ve got your Roosevelet’s mixed up. Swift came out in 1905, when Teddy Roosevelt was President. You’re also confused about the court packing plan. That resulted in West Coast Hotel Co. v. Parrish, which has nothing to do with the commerce clause, since it involved a state law. I think the commerce clause case you probably had in mind is NLRB v. Jones. Maybe tell us which cases you think evidenced your “particular understanding of the Constitution” and specifically your narrow view of the commerce clause + N&P clause.

              1. “The Supreme Court held that Congress could regulate intrastate activity as early as 1824, long before FDR was born.”

                I think you’re a bit mixed up. You’d be talking about Gibbons vs Ogden, which had to do with a ferry monopoly New York had granted a couple of companies for a route to New Jersey. Congress licensed a third firm to carry passengers on that route.

                You might notice that New Jersey isn’t in New York. It was interstate. All that Gibbons vs Ogden established was that “commerce” wasn’t limited to buying and selling goods, but also included services.

                1. In Gibbons the court said that commerce “among the several states” did not necessarily “stop at the external boundary line of each State, but may be introduced into the interior.” The limitation assumed was that the commerce clause could not be applied to those “internal concerns . . . which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government.” Of course this limitation wouldn’t stand up to 20th century facts, anyway.

                  1. Right, basically it held that interstate commerce didn’t exist only at the state line, but still required that it start in one state, and end in another.

                    This limitation wouldn’t stand up to 20th century sophistry, at any rate.

                    1. Health insurance contracts are sold, delivered, managed, adjusted, and enforced interstate. Even if there was a hypothetical health insurer that sold a policy exclusively intrastate, and the insured never left the state, the regulation of the health insurance market might still be enforceable under the commerce clause so long as “affect[s] other States”.

                    2. “the regulation of the health insurance market might still be enforceable under the commerce clause so long as “affect[s] other States”.”

                      This limitation wouldn’t stand up to 20th century sophistry

              2. I’m pretty sure he’s looking for Wickard v. Filburn, so he’s definitely got the right Roosevelt. (Although it probably wasn’t a consequence of the court packing proposal by that point, it is the relevant commerce clause decision).

      2. And apparently they think they can use that power for anything.

        The “interstate commerce” justification has gotten completely out of hand. I’m pretty sure that the Founders didn’t expect the clause to be used to justify regulation of every human activity because every human activity in the United States involves, to one degree or another, something that has passed across state lines in commerce – at least one electron or, gasp, an entire atom. This was actually probably mostly true even at the time of the ratification of the Constitution although it is much more true now.

        I’ll bet that not a single thought expressed on this entire web site was put online without interstate commerce being involved (a keyboard, a mouse, a screen/monitor, a CPU, a memory chip, etc. that crossed state lines in commerce or just some electrons whose movement was started by an out of state generator was almost certainly used).

    2. I thought the enumerated powers argument against the ACA was that insurance isn’t commerce at all, not that the ACA regulated intrastate commerce.

        1. I couldn’t follow Epstein’s argument. Is he arguing against the mandate or against all of Obamacare? Assuming it is the latter, is he arguing Obamacare is unconstitutional because it doesn’t regulate commerce, or it regulates intrastate commerce? Epstein’s case references do not make it clear what his arguments are.

          Since you believe all of Obamacare is unconstitutional because it regulates intrastate commerce, perhaps you can clarify how Epstein’s argument supports your belief.

          1. It’s a two part argument. The mandate itself is unconstitutional as a regulation of inactivity, because Congress lacks the power to order people to engage in economic transactions. And the mandate was a penalty, not a tax, despite Roberts’ mental gymnastics.

            The ACA in general is unconstitutional because it regulates intra-state commerce, and the Interstate Commerce Clause, (Always referred to in that way when I went through school in the 70’s.) only gives Congress the authority to regulate commerce which crosses specific boundaries. The commerce itself, not anything that led up to it, follows it, or might affect or be effected by it.

            1. Just so we understand, your view is that the commerce clause means what you were taught about it in the 1970s, long after the purported jurisprudential shift you lambast above, and that’s why you think the original understanding is that it was limited to interstate commerce?

              Where did you go to school where they were teaching you that the commerce clause did not extend to intrastate commerce?

              1. A school that actually covered the issues involved in Wickard when covering the New Deal.

                And, yes, the original understanding IS that it was limited to interstate commerce. That’s why, even now, when regulating things other than interstate commerce, they have to invent some “nexus” to interstate commerce, claim they’re regulating whatever it is because it could influence such commerce.

                That’s why it used to be called “the Interstate Commerce Clause”, not “the Commerce Clause”.

                The modern understanding of the clause didn’t show up in court cases until after “the switch in time that saved Nine”, when the Court caved to FDR’s threat to pack it.

                1. Your continue to mix up is and ought. Have some humility, dude.

                  1. Maybe you’re the one who’s wrong about “is” and “ought”. This has been discussed many times on this blog.

                    Have some humility, dude.

                    1. Asking an internet commenter to show humility?

                      What next?

                    2. No, what the Supreme Court says is what the law is, TiP. That’s not humility, it’s reality.

                    3. No, that’s somebody who doesn’t want to admit the Supreme court can be wrong, because it makes life too complicated or might suggest it is wrong about things they like.

                2. “The modern understanding of the clause didn’t show up in court cases until after “the switch in time that saved Nine”, when the Court caved to FDR’s threat to pack it.”

                  Swift and Company came out in 1905.

                  1. Ok, you got me: The infection started a little earlier than that, it only became full on gangrene when FDR threatened to pack the Court.

            2. Almost certainly any medical service you receive that is covered under the ACA involves something that crossed state lines in commerce (perhaps a mask, a glove, a doctor’s degree, a floor cleaning product, etc). Isn’t that enough for you?

              1. No, of course not. It’s only the actual process of selling/transporting it across state lines that’s within the regulatory reach of Congress. Once somebody here in SC has bought it, it’s back into intrastate commerce.

                1. This is nonsense and has never been the law.

                  1. It’s not nonsense, and was law for at least half the history of the US.

                    1. NToJ has taken you to school with multiple counterexamples to that.

                      To be fair, I wasn’t aware of those cases either. But the fact is your version of the legal history looks to be quite wrong.

                    2. That’s not exactly what the Court held in Gibbons is it?

            3. Excellent analysis Bellmore—now do the same thing with employer provided health insurance—if it walks like a duck and quacks like a duck…it’s a VAT!

              Btw, how does it feel losing everything argument to a pea brained 125 IQer??

              1. No, if it walks like a duck and quacks like a duck, it’s probably a duck. Do Value Added Taxes even walk?

                1. VATs are a line item on a budget. Health care costs are a line item on a large corporation’s budget. VAT revenue is controlled by the government. Employer health insurance is so heavily regulated at the state level that it is effectively controlled by the states with major input from their biggest lobbyists—large employers in the respective states. Btw, Canada’s health insurance system is also regulated at the province level. Quack, quack, quack. Waddle, waddle, waddle. 😉

                  1. Ah, I see: VATs take money from companies, other taxes and expenses take money from companies, therefore every tax and expense a business is subject to is a VAT.

                    That’s lunacy.

                    1. Only when that expense is a non sequiter—so an employer providing health insurance to its employees makes no sense but for the fact the New Deal Democrats and UAW carved out tax benefits for employers to do that.

                    2. It actually might make sense even without the tax benefit. It seems fairly likely that an employer could get a better price on a group policy than the individual employee could get alone, subject to some rules about enrollment.

            4. I’m still not seeing where where Epstein argued that the ACA in general is unconstitutional because it regulates intrastate commerce. What cases support this conclusion?

              1. He didn’t say it would be ruled unconstitutional, but what do you think he was saying here?

                Looked at from the vantage point of the original Constitution, ObamaCare should be dead on arrival. But the New Deal transformation of long-established Commerce Clause jurisprudence has introduced a set of unprincipled (but fine-grained) distinctions that turn the law into a mass of linguistic absurdities that should lead ordinary people to question the collective sanity of the legal profession. From the straightforward prose of the Commerce Clause, Judge Silberman concludes (accurately) that “[t]oday, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible.””

                The only way to interpret that paragraph is that the ACA would never pass constitutional scrutiny under the interstate commerce clause if it were still being reasonable applied.

                1. On this thread you are defending the New Deal Democrats/UAW health care VAT!?! You are the strongest supporter of New Deal policies in this comment section!?!

                2. Regulating commerce “among the states,” read literally, limits the ambit of Congress’ regulatory authority to actions undertaken by the states, not private actors.

                  Therefore, the result in Gibbon was correct, while the central power loving chief justice’s rationale went far afield.

                  If the ratifiers of the constitution had intended that Congress would have the power to regulate commerce between private parties in different states, they would have approved of text that so said.

                3. It is not at all clear whether the quoted section is referring to the mandate or the entire law. It is also not clear whether the unconstitutionality of whatever it is referring to is because the regulations are of intrastate commerce or not commerce at all.

      1. There were several strands. Insurance is done all intra-state. So there was that argument. But the mandate made part of the argument about inactivity or the decision not to buy. That was argued to not be commerce and therefore can’t be regulated.

        1. I believe Brett is arguing that all of Obamacare is unconstitutional because it is a regulation of intrastate commerce. And while it is true that the sale of health insurance is currently constrained to intrastate markets, couldn’t Congress pass laws that encourage interstate sales as the Trump administration has proposed? And if so, then wouldn’t it also follow Congress can require guaranteed issue?

          1. No. While Congress could, indeed should, deal with the problem of insurance being Balkanized in this way, it doesn’t in any way follow from this would entitle Congress to require guaranteed issue. At most they might bar interstate commerce in polices that didn’t have that feature, but policies sold intra-state wouldn’t be within the reach of that command.

          2. Explain to me how Aetna isn’t engaged in interstate commerce.

            1. Why should I? I’m insured by Blue Cross Blue Shield of South Carolina, which issues policies only in South Carolina.

              I’m not arguing that insurance, categorically, isn’t interstate commerce. I’m arguing that most health insurance isn’t.

              1. Poor example. BlueCross BlueShield of South Carolina does business nationwide. It also has affiliates (independent of other Blue Cross and Blue Shield licensees) in Georgia, Ohio, Tennessee, and Texas.

                1. And why does it have all these affiliates? Because each issues policies in a different state.

                  1. So the intrastate nature is pretty much a sham?

                  2. It has the affiliates in other states to engage in interstate commerce. Some of the affiliates don’t even do health insurance. Some administer self-funded health insurance plans.

                    But Blue Cross Blue Shield of South Carolina purports to serve over 21M customers, apparently throughout the nation and around the world.

    3. Congress is allowed to regulate intrastate commerce under the N&P clause.

      1. No, it isn’t. That deprives “proper” of all meaning. The N&P clause wasn’t intended to convert a government of “few and defined powers” into one with general police power.

        1. Just because something deprives “proper” of the meaning you want does not mean it deprives it of all meaning. And what we are arguing about is more concerning who decides the limits of Congress’s power rather than what they are. The states are represented in Congress. If the states want less commerce power for the feds, the states have the direct means of solving that.

        2. These people will argue next that the General Welfare clause grants the people in government the power to do anything they want so long as their intentions are good.

        3. Does BlueCross BlueShield of South Carolina have reinsurance?

        4. Brett, please define what you think “proper,” means. Because I don’t think it means what you think it means. But I want to be sure.

          1. Proper means “not abusive”. Not, for example, exercising a new power for its own sake, under the guise of just putting into effect some power you’re actually delegated.

            Example: The gun free school zone act: Congress has no authority to tell people where they may possess guns, outside of federal property. But Congress purported to be regulating interstate commerce by banning gun possession near schools if the guns had been in interstate commerce.

            But what’s being regulated isn’t interstate commerce, it’s just gun possession near schools. The claim of interstate commerce is pretext.

            Thus the N&P clause doesn’t authorize this.

            By contrast, suppose Congress bans export of some article from the country. It passes a law requiring bills of lading for ships leaving US ports to be reported to some federal agency. It’s straightforward how this, though not itself interstate commerce in the immediate instance, is necessary to further an actual regulation of interstate commerce. Thus N&P.

            1. Are you saying N&P can’t be used as a pretext?

              It’s hardly pretextual in the case of the mandate. While it’s not clear how much effect the mandate had, it was certainly the consensus opinion that it was necessary to make the system work. and I don’t see what was “improper,” or abusive about it.

              What Constitutional provision did the mandate violate?

      2. the N+P clause only gives Congress the power to pass laws which enact the powers explicitly granted in Article 1, which you’d actually know if you bothered to read the N+P clause. If it’s not a power explicitly vested by the constitution, the N+P clause doesn’t magically extend to cover it.

        1. “the N+P clause only gives Congress the power to pass laws which enact the powers explicitly granted in Article 1”

          None of this is true, although it’s difficult to tell what you mean by “enact the powers”. You enact laws. You don’t “enact powers”. But by necessity, the N&P authorizes implied powers not contained in any express powers, otherwise there’s no point to it. Congress doesn’t have to “pass laws” to declare war. They just declare war. (They can pass a statute, but they don’t have to.) But to the extent their are laws that Congress has to pass to determine whether war should be declared, the N&P covers it.

          Second, the N&P is not limited to Article 1. Note the use of “the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States…”

          Congress is authorized to regulate “Commerce . . . among the several States”. To the extent it must regulate intrastate commerce to do so, the N&P authorizes it. It’s not magic. It’s grammar.

      3. “Lets limit Congress’ enumerated power to regulate commerce to interstate commerce only, to ensure free trade among the states. But then lets also have the power to regulate intrastate commerce as much as they want, but hide it away in the NP.”

        1. Note that “interstate commerce” is not in the Constitution. Note also that the feds cannot regulate interstate commerce except by regulating purely intrastate activities, since the feds have to be intrastate somewhere to do the regulating. (There is no physical space in the borders between states.) And if things that occur purely intrastate affect interstate commerce, Congress would have to regulate the former to deal with the latter, anyway.

    4. The original Constitution contains a Spending Clause. And that’s all that Congress is doing. It’s spending some money on the public welfare as it sees it. That, and giving people some advice. Advice that you can take or leave as you see fit, without consequences.

      Everybody is entitled to give advice in this country. And Congress, just like your mother-in-law, is entitled to style their advice a law.

  2. Sure, doing the wrong thing since the 20s is a great reason to continue doing the wrong thing now.
    You know, the 20s were such a high point in Con Law.
    Overruling Wickard is the most helpful thing the Court could ever to to reestablish the proper balance to our federalist system.

  3. I just don’t understand how you could read any SCOTUS decisions on standing issued over the last 30 years and conclude it exists in this case.

    Moreover, the plaintiffs are asking for a remedy to the abstract injury in this case which ultimately harms millions of non-parties by taking away their coverage.

    “I feel harmed because I feel compelled to buy insurance I don’t want even though there are no consequences if I don’t. The only way to remedy this is by kicking millions of people off of Medicaid.”

    The lack of morality of such an argument is absolutely astounding. Only the most selfish person who sincerely believed they owed absolutely zero moral duties to any other human would find such an argument acceptable. It’s practically a left-wing parody of Ayn Rand’s objectivism.

    1. It gives conservative law professors a chance to show off their chops, and demonstrate fealty. Big rewards there.

    2. I argue it’s possible to find somebody who could suffer a concrete injury, even with the penalty set to $0. You’d need somebody with an independent obligation to obey all applicable laws, where the concrete injury would come from the failure to meet that obligation.

      Someone on parole, for instance, or a member of some profession that is anal about it’s members being law abiding.

      1. First you’d have to establish that your claim is true. That is can the failure to have insurance subject them to a harm. During the ACA argument the answer was no. So unless you say zeroing the penalty/tax changed that, which is possible but by no means certain, then they wouldn’t have standing either.

      2. You always say this, but guess what? They’re not the ones bringing suit. And furthermore, the remedy is to make declare it invalid as applied to them for the purposes of parole conditions or licensing. The remedy is not to throw the entire law out as invalid.

        Also way to dodge the moral implications of the argument.

        1. This argument also leads to the absurd conclusion that a one cent penalty would make the law OK, but a zero penalty invalidates it.

          1. No, a one cent penalty wouldn’t make the law OK, because Congress was delegated no power to penalize the refusal to engage in an economic transaction. The size of the penalty is irrelevant to that issue.

            1. But a one cent penalty would destroy your argument a concrete injury, because the injury could be avoided by sending one cent to the Treasury.

              Your hypothetical parolee would then be in compliance.

              1. The injury could be avoided by complying with an unconstitutional demand. You can’t require people to comply with unconstitutional demands, even if they’re fairly trivial.

                For instance, Congress can’t make it illegal to use an Oxford comma.

                1. Brett,

                  You wrote:

                  I argue it’s possible to find somebody who could suffer a concrete injury, even with the penalty set to $0. You’d need somebody with an independent obligation to obey all applicable laws, where the concrete injury would come from the failure to meet that obligation.

                  Someone on parole, for instance, or a member of some profession that is anal about it’s members being law abiding.

                  I pointed out that the one cent penalty would solve this problem, which sort of makes your point, which you repeat endlessly, ridiculous, and now you’re all over the place about how ACA is unconstitutional for all sorts of other reasons. That’s not what I was addressing.

        2. I agree that the entire law is not unconstitutional just because the mandate is. The entire law is unconstitutional for other reasons. And the law, conspicuously, lacks any severability clause. This was a deliberate decision, essentially to play chicken with the Court, giving them the choice to uphold the entire thing or throw it all out. And the Court blinked.

          What moral implications? I’m missing that.

          1. And the law, conspicuously, lacks any severability clause. This was a deliberate decision, essentially to play chicken with the Court, giving them the choice to uphold the entire thing or throw it all out. And the Court blinked.

            It’s all a conspiracy.

            1. Well, I suppose in the sense of several people working together. Not in the sense of being secret.

          2. The moral implications of attempting to remedy a de minimis harm through the removal of health insurance for millions of non-parties. Don’t you think someone who would want that is acting selfishly and with zero regard to the well-being of other people? I mean maybe you don’t see the moral implications because you yourself don’t believe you have a moral duty to consider the well-being of others.

            1. Well, it’s true that I don’t think that people are morally entitled to have somebody else be compelled by the government to subsidize their health insurance. Granted, if you stop robbing Peter to pay Paul, Paul is worse off. But that doesn’t imply that it’s wrong to refrain from robbing Peter.

              You seem to be under the impression that the ACA had only good effects, and no bad effects, or maybe that only the good effects are morally relevant, and the bad effects have to be ignored.

              1. The reality is in America we fund health care for those ages 18-65 with a VAT whose revenue is controlled by employers and state governments. So every product and service you purchase in America includes someone else’s health care costs. So whether you like it or not the government is compelling you to fund other people’s health insurance. Obamacare was a fix to that system in which people paid for other people’s health insurance while getting no benefit from the VAT.

                1. The reality is that the US doesn’t even have a Value Added Tax.

                  1. The reality is it does. Employer provided health insurance is a VAT whether you like it or not.

                    1. Look, you nitwit, companies aren’t even required to provide health care. Even when they do, individual employees can opt out. How often are companies allowed to opt out of VATs? Or set their own rates?

                      Every single business express isn’t a VAT, that deprives the term of all meaning.

                    2. Calling the employee fringe a tax is a rather sleazy attempt to make your point. It is not a tax, but it is a cost to the consumer. Not every cost is a tax and you know that. Moreover, that added cost is certainly not nearly as high as the VAT is in the EU that must be paid at the same rate on all transactions.

              2. It’s wrong to ask someone to destroy millions of people’s lives to remedy your own de minimis injury. You would have to be supremely selfish to ask a court to do that.

                The good effects are more morally relevant because its about insurance and access to care for vulnerable people. The bad effects are usually considered to be subsidies and taxes. Selfish people who don’t have concern for people don’t want to pay more consider those bad effects. Or in this case being forced to pay zero.

                We’ve had years of conservatives lecturing about morality. Then they elect someone as morally depraved as Donald Trump. Moreover, they celebrate him for his selfishness, depravity, and cruelty. Their moral compass was never any good anyway. It was often based on selfishness and was disconnected from the idea that humans owe anything to each other. Their opinions on morality should probably be rejected.

                1. It’s wrong to ask someone to destroy millions of people’s lives to remedy your own de minimis injury. You would have to be supremely selfish to ask a court to do that.

                  Notice that the real plaintiffs here do not suffer even a de minimis injury. The nominal plaintiffs were recruited by some red state politicians and right-wing lawyers out to make a name for themselves.

                2. So, all it comes down to is moral bullying, you demand that I not care about the bad parts of the ACA, because it has parts that are good for some people. Just some people, you’re not even putting any great effort into demonstrating that the ACA is NET beneficial, or that the benefits couldn’t have been achieved more cheaply in some far less disruptive way.

                  1. “So, all it comes down to is moral bullying…”

                    AND IF THERE’S ONE THING BRETT BELLMORE WON’T STAND FOR, IT’S MORAL BULLYING.

                  2. or that the benefits couldn’t have been achieved more cheaply in some far less disruptive way.

                    Republicans have been saying for years that the benefits could be achieved in some better way. About every three weeks Trump promises a wonderful better, cheap plan will be announced in two weeks. Nothing yet.

                  3. Call it bullying if you want. Conservatives have loved to do that for years, so I feel less bad about it now. But if you feel bullied maybe you should reconsider your morals? They might not be great.

      3. If your mother-in-law tells you that you must do something and you don’t want to do it, can you sue her? Can you argue that she’s injured you because you don’t obey your mother-in-law, you’ll feel bad and you’ll get dishonored within the family, therefore her telling you to do something you don’t want to do injures you?

        What’s the difference? The Supreme Court has already held that when Congress passes a law with no penalty, it’s simply giving you its opinion. Everybody is entitled to give you advice in this country. Even Congress.

        1. Do my mother in law’s demands have the force of law, such that if I don’t obey them, I’m legally a criminal?

          1. Does the individual mandate? There are no criminal or civil consequences to you for not having insurance.

            1. You’re still violating the law. It doesn’t say, “Eh, whatever, do what you want.” It says you SHALL obtain the insurance. It’s the language of command, not suggestion.

              1. Using “language of command” is not sufficient basis to make non-compliance a crime. An actual criminal penalty is required for that.

                1. No, you’re right. The language of command doesn’t make non-compliance a crime if my mother in law uses it.

                  If the government uses it, OTOH, it does.

                  1. No, it doesn’t.

                    A “crime” is violation of law that the legislature designates as criminal. All crimes are violations off the law, but not all violations of the law are crimes.

                    This is really basic stuff.

                    1. Congress literally levied a fine on failure to get the insurance.

                    2. That’s still not a crime. Ever hear of a civil penalty?

    3. Considering the health outcomes for people on medicaid are indistinguishable from not having insurance in the first place, according to the government’s own studies, i’m not sure that actually qualifies as a harm.

    4. Well first standing has been watered down to basically mean “we don’t feel like dealing with this”.

      Its a Federal law implicating the Constitution. There’s your standing.

      Second, Its a Federal law implicating the Constitution. Theirs your injury.

      Third, in a just system, this would have been struck down long ago. The arguments in the this case are much stronger than either opinion upholding Obamacare (“ITS A TAX” and “STATE MEANS STATE AND FEDERAL!”). So if this is the instrument to finally kill it, well that’s the courts own fault.

  4. I am not sure what is so difficult about this case—if the Trump Tax Cut doesn’t have a severability clause then the entire law is unconstitutional for having the unconstitutional zeroing out of the individual mandate.

    1. How is it unconstitutional to zero out the individual mandate? Excuse me if you were just being sarcastic.

      1. My issue is with if it is unconstitutional then how can that law impact an older law already declared constitutional?? So couldn’t Congress easily abuse this by passing tax cuts that relate to old laws that make them unconstitutional??

        1. Only laws which were saved from being unconstitutional by bogus interpretation of a penalty as really being a tax, even though the law itself says it’s a penalty.

          Not a lot of those, only one in fact.

          1. Once again—if it walks like a duck and quacks like a duck—it’s a VAT! Health care costs are a line item on the budgets of large corporations, ipso facto, it is treated just like a VAT. The revenue of that VAT is controlled by employers AND state governments through heavy regulation of that particular market. So the fact employer provided health insurance is heavily regulated, even in states like Texas, makes that particular spending very much like a VAT! Bellmore lives in a country with a VAT and happily goes about his day paying that VAT whenever he purchases goods and services in America.

            1. Your saying it is a tax does not make it one. It is neither set by nor collected by a government agency contrary to the common understanding of the term “tax” by the public. Yoru sleight of hand is unconvincing.

              1. It amounts to a tax when society expects employers to offer health insurance and the federal government crafts tax policy to induce employers to offer health insurance. The fact state governments heavily regulate that particular market makes it even more tax like. Throw in the fact state governments give tax incentives to certain companies in return for creating jobs specifically with health insurance and it is very clearly a tax and in fact VAT. You support a VAT and you actually have been defending the VAT from Democrats’ reform measures!! Lololololol!!

    2. Trump can just use Prosecutorial Discretion and not go after people who pay lower than the state rates and use that discretion to grant affirmative benefits and appropriate monies to administer the prosecutorial discretion.

      It works for illegals and DACA.

  5. This blog — comments included — has taught me why Republicans have lost the culture war in America, and why defeating the backwardness-and-intolerance platform of movement conservatives for more than a half-century has been such an important achievement of the liberal-libertarian mainstream.

    Thanks, guys.

    1. Hey, Rev. Why do so many Ivy “educated” types have such a hard time putting subject to predicate to object without stammering, hemming and hawing, and spewing out so much verbigeration?

  6. Professor Adler…if the case is so weak, as you maintain, why is SCOTUS even hearing it? You imply this is ‘open and shut’. I don’t see SCOTUS hearing very many (if any at all) weak constitutional cases.

    1. Well, not if you circularly define “weak” in terms of likely Supreme court rulings. Plenty of existing precedent was based on “weak” arguments in the sense of the strength of the reasoning or facts.

    2. Because a federal circuit court declared a statute unconstitutional.

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