Thoughts on the New Constitutional Case Against Obamacare

20 states are right to claim that the mandate is now unconstitutional, but wrong to argue that this requires invalidating the entire Affordable Care Act.


On Monday, twenty Republican-controlled states filed a lawsuit challenging the constitutionality of the Affordable Care Act's individual mandate, which requires most Americans to purchase government-approved health insurance. The full text of the complaint is available here. The lawsuit contends that, if the mandate is invalidated, the Court must also strike down the entire Affordable Care Act, because the rest of the ACA cannot be "severed" from the mandate. The red state plaintiffs are right to argue that the mandate is unconstitutional. But they are probably wrong to conclude that a ruling against the mandate requires the court to eliminate the rest of Obamacare along with it.

Back in 2012, Supreme Court ruled that the mandate is constitutional in its highly controversial decision in NFIB v. Sebelius. But Chief Justice John Roberts' controlling opinion for the Court only reached this conclusion by reinterpreting the mandate as a tax, thereby saving it from being declared unconstitutional. Roberts concluded that the mandate was not authorized by Congress' power to regulate interstate commerce, or by the the Necessary and Proper Clause, which gives Congress the authority to enact legislation that is "necessary and proper" for the execution of other federal powers granted by the Constitution. Thus, it could only be saved by ruling that it qualifies as a tax, authorized by the Tax Clause of the Constitution. Roberts listed several factors that led him to conclude that the mandate can be considered a tax. But a crucial one is that the violators were subject to a fine collected by the IRS. As Roberts put it, "the essential feature of any tax [is that] it produces at least some revenue for the Government."

In December 2017, the GOP Congress enacted a tax bill that, among other things, abolished the fine previously imposed on people who disobeyed ACA health insurance mandate. The mandate itself remains on the books. But violators are no longer subject to any penalty. For this reason, the state plaintiffs in the newly filed case argue that the mandate can no longer be considered a tax. In the absence of a financial penalty, it no longer "produces" any "revenue for the Government." Indeed, it no longer even tries to do so. And if the mandate is not a tax and is not authorized by the Commerce Clause or the Necessary and Proper Clause (as the Court ruled in NFIB), then it is no longer within the proper scope of federal power authorized by the Constitution.

The plaintiffs are absolutely right on this point. A tax that does not require anyone to pay anything is like a unicorn without a horn. It is pretty obviously not a tax at all. In fairness, the requirement of a monetary payment was not the only circumstance that Chief Justice Roberts considered in determining that the mandate qualifies as a tax. He also claimed that several other factors were relevant, such as that the mandate did not include a scienter requirement, that the penalty was not so high as to be "prohibitory," and that those who violate the mandate were not considered to be lawbreakers if they paid the fine. But, while the requirement of a monetary payment may not have been sufficient to prove that the mandate was a tax, it surely was necessary. You don't have to be a constitutional law scholar to understand that there can be no taxation without some kind of payment.

In my view (see here and here), Roberts was wrong to conclude that mandate qualifies as a tax, even when it did impose a fine on violators. It was more akin to a penalty imposed for violation of a law, similar to fines imposed for violating any number of other laws, such as those banning speeding or jaywalking. But it is even more clear that the mandate cannot be considered a tax once the fine is removed and violators no longer have to pay anything.

While the state plaintiffs are right to argue that the individual mandate can no longer be considered a tax, they are wrong to claim that the fall of the mandate should take the rest of Obamacare down with it. The states do not assert that any other part of the ACA is unconstitutional; they argue, rather, that the rest must be struck down because the individual mandate cannot be "severed" from it. If one part of a law is declared unconstitutional, and that part cannot be severed from the rest, then the whole thing must fall.

The Supreme Court's severability jurisprudence is far from a model of clarity. But the Court has held that if the unconstitutional part of a law is so important to the rest that the statute as a whole cannot work as intended, then the latter falls along with the former. Otherwise, the residual law is no longer what Congress had intended to set up. In NFIB, four conservative justices who concluded that the individual mandate is unconstitutional also contended that it could not be severed from the rest of the ACA, because of the ways in which the mandate was essential to the overall regulatory scheme.

But there is a big difference between a court choosing to sever a part of a law, and Congress doing so itself. And in this case, Congress has already effectively neutered the individual mandate, while leaving the rest of the ACA in place. It was Congress that removed the monetary penalty imposed on violators of the individual mandate, thus rendering it ineffective. And it was also Congress which chose to leave the rest of the law in place, nonetheless (largely because President Trump and the GOP leadership repeatedly failed to round up enough votes in the Senate to repeal any more of Obamacare). Unlike in NFIB, a court could not conclude that Congress' design for the ACA would be fatally undermined without an effective individual mandate. The four dissenting justices in that case argued that, without the mandate, the other parts of the law could not "operate as Congress designed them." In this case, Congress itself has concluded that a mandate-less ACA is acceptable (or at least a lesser evil than the available alternatives).

The state plaintiffs also claim that a mandate-less law is so badly flawed that it flunks even minimal "rational basis" review to which virtually legislation is subject. But given that almost anything can pass rational basis review, so long as it has some remotely plausible rationale (Justice Antonin Scalia famously called the rational basis test "a test of whether the legislature has a stupid staff"), that argument is unlikely to succeed. A recent Congressional Budget Office analysis predicts that a mandate-less ACA would be worse than the status quo in some ways, but also that it would not collapse completely. The ACA is a badly flawed law with or without the mandate. But it's good enough for rational basis government work.

In sum, the states deserve to win on the issue of the constitutionality of the individual mandate. But they should lose on severability.

If all this lawsuit is likely to achieve is the removal of the already essentially neutered individual mandate, one might ask whether there is any point to it. It is indeed true that such an outcome would have little or no impact on health care policy. But it would help establish an important constitutional principle: the federal government cannot use its tax power to impose mandates unless that mandate includes a monetary fine that raises some revenue for the government. Otherwise, the mandate is unconstitutional, unless it is authorized by one of Congress' other powers. Congress cannot enforce otherwise unconstitutional mandates by means other than financial penalties. Making that clear would limit the damage caused by Roberts' ill-advised ruling in NFIB, concluding that the ACA individual mandate (in its original form) qualifies as a tax. If courts conclude that the mandate qualifies as a tax even if there is no monetary fine, that might open the door to the imposition of mandates backed by other kinds of penalties.

The main goal of the red states who filed this lawsuit is to get rid of Obamacare entirely. That outcome is unlikely. But they could potentially secure a modest, but still valuable victory for constitutional federalism.

In addition to the substantive issues at stake in this case, some procedural ones may come up, such as whether the states (or anyone else) has standing to file a lawsuit against the now-neutered individual mandate. It is also possible that the Trump administration (which is no fan of Obamacare) will choose not to defend the constitutionality of the mandate, in which case the court might appoint an independent lawyer to defend the statute (as it did in the 1982 Bob Jones case) or allow blue states to step in to defend (as lawyers hired by mostly Republican members Congress were allowed to step in to defend a provision of the Defense of Marriage Act, which the Obama administration refused to defend in United States v. Windsor). I may address these procedural questions in a future post. For now, I tentatively predict that they probably won't prevent the courts from deciding the case on the merits.

The history of ACA-related litigation is filled with surprises and failed predictions by experts. So I have to admit it is possible this case will turn out in a way very different from what I hope and expect to happen. Having long argued that the individual mandate is unconstitutional, and authored an amicus brief advocating that position in the original Obamacare case, I cannot claim to be a completely neutral and objective observer.

For what it is worth, my own predictions about the original individual mandate case were on target about several key issues, but wrong on others. It will be interesting to see what happens this time.

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  1. You pretty much admitted in this post that because they deleted the penalty and effectively neutered the tax, that there is “no point” other than establishing a “principal”

    But there is something called “standing”

    1. Theres also something called “lying”.

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  2. “In this case, Congress itself has concluded that a mandate-less ACA is acceptable…”

    Has it? Isn’t the mandate still there? We’re still required to buy insurance, and this requirement is necessary to prevent free riding. Just because Congress decided not to tax people who don’t buy insurance doesn’t mean that we are allowed to ignore the mandate.

    1. Yes, the law says you have to purchase health insurance, but there’s no longer any penalty for not purchasing health insurance. Congress has officially given you permission to ignore the mandate.

      1. And here I was thinking that the President had a duty to see that the laws be faithfully executed, whether there is a punishment for unlawful behaviour or not.

        1. But, if there’s no punishment, he can’t invent one out of thin air.

      2. No they haven’t. I’m a law-abiding guy. And I am still required to buy insurance, even though I don’t have to pay a tax if I don’t.

        1. Then purchase health insurance, law-abiding guy.

          1. If I must… I don’t feel I need it. I just wish I could fulfill my duty to obey the law without spending a lot of money on a product I don’t need. Maybe the courts can help…

            1. Yeah? Well, I don’t particularly feel like paying for your emergency room visits, so I’d say you do need health insurance.

              But don’t worry because you may now be able to buy cheap insurance with huge deductibles that doesn’t actually cover anything. Then you can abide by the law without burdening yourself with financial security should you get in a car accident, or catch some nasty bug, or break an arm water skiing, or fall off a roof, or get hit by a drunk driver, or discover some previously hidden chronic condition, or accidentally saw off a finger, or…

              1. Of course, the difference being that you can choose not to buy a car. I suppose you could also choose not to live.

                I note you use the example of you don’t want to pay their E.R. bills, which is amusing since the Government has effective said that yes, you will pay everyone’s E.R. bills through higher prices.

                No such thing as a free lunch, pal.

              2. You’d think this emergency room visit talking point would die as we have actual data showing emergency room visits went up post ACA. Partially because people can’t get into see their Primary Care Physician anymore.

                1. That would be a good point if I had said anything about the frequency of use of emergency care, or if health insurance doesnt cover trips to the emergency room. I only have to pay for your trip there if you have no means of paying for it yourself.

              3. “Yeah? Well, I don’t particularly feel like paying for your emergency room visits, so I’d say you do need health insurance.”

                No problem. I can just buy it on the way to the emergency room.

              4. How do you know that 12″ isn’t financially able to shoulder all their medical costs? Do you suppose that Jeff Bezos, Bill Gates, Warren Buffett, and Tim Steyer really can’t cover their lifetime medical costs without insurance?

              5. But don’t worry because you may now be able to buy cheap insurance with huge deductibles that doesn’t actually cover anything.

                As opposed to the status quo of expensive insurance with huge deductibles and thin provider networks that covers services you’re biologically unable to use?

                1. Yeah, either option would make 19th century healthcare if not great, at least our only option again. And if its your only option you may as well think its great.

              6. “Yeah? Well, I don’t particularly feel like paying for your emergency room visits, so I’d say you do need health insurance.”

                Go back to the root of the problem: forcing hospitals to treat anyone who shows up regardless of ability to pay, which then makes them have to recoup the expense by pricing an aspirin at $10 for those who DO pay (or whose insurance does.)

                If a hospital decides to treat anyone, that’s their business, and an admirably compassionate position. But saying that they MUST by law do so is involuntary servitude, and prevents them from telling some idiot who made the poor choice NOT to buy insurance “no, we will NOT tie up ER time and resources to treat your hay fever, jackass.”

    2. Federalist #15:

      “It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.”

      Hence, by removing the tax penalty, Congress has reduced the mandate to a recommendation just like nanny government running a public service announcement that says that you should eat more broccoli because it’s good for your health.

      1. Well, that Federalist is BS.

        Look at EnergyStar ratings. One of the more effective government environmental policies, and nothing coercive about it.

        1. So now you’re an anarcho-libertarian?

          1. One can understand coercion is bad but believe there are lots of policies worth paying that cost.

            1. So Fed. 15 was essentially correct in claiming that there must be laws with teeth in them because it will be the exception that enough people will follow recommendations from government (particularly when it comes to the most important matters of government like getting people to pay taxes) to render sanctions for disobedience unnecessary.

              1. This is only true if you demand your entire population obey. That’s not practicable in today’s world.

  3. If the fine is waived, who can claim an injury required for standing?

  4. The Medicaid expansion was ruled unconstitutional but the states were just given the option to expand…so this is very similar. Republican controlled states still refuse the Medicaid expansion and prevent doctors and hospitals in their states from receiving a valuable revenue stream because they believe Obama is a Kenyan Muslim.

    Btw, Obama and liberals always opposed the individual mandate and Kos almost didn’t endorse the ACA because of the inclusion of the individual mandate. Trump repealing the individual mandate saves Obamacare by repealing the least popular provision (that is inconsequential) while keeping the important aspects. This makes sense considering Kushner’s brother is heavily invested in Obamacare:

    Meet the new boss.
    Same as the old boss!

    1. Wow, a post full of lies.

      Republican controlled states still refuse the Medicaid expansion and prevent doctors and hospitals in their states from receiving a valuable revenue stream because they believe Obama is a Kenyan Muslim.

      BS on believing Obama is a kenyan muslim. BS on the “valuable revenue stream” as the states which expanded are having to pay a portion of that cost too.

      Btw, Obama and liberals always opposed the individual mandate and Kos almost didn’t endorse the ACA because of the inclusion of the individual mandate.

      Oh really? Then why did they pass it with the mandate then? Hard to argue they “always opposed” when they’re the ones who implemented it.

      1. The feds pay 90% of the Medicaid expansion in perpetuity?so I give you $9 if you can come up with $1! Louisiana now has a Democrat governor thanks to the Medicaid expansion and a popular Republican governor in NC lost to a Democrat that ran on expanding Medicaid…it is a no brainer and more Republicans will lose because it is a great issue for Democrats.

        Moderate red state Democrats pushed for the individual mandate because they were under the impression conservatives in their states would support it because it was originally a Republican proposal…they were wrong and Republicans have undermined Obamacare using the individual mandate to beat the red state Democrats.

        Trump is a BIRTHER and beat an outstanding field of non Birthers in the Republican primary. So that is all the proof I need for the “Kenyan Muslim” remark.

        1. So you admit that your revenue stream is a net loss on government budgets. Not sure why you are arguing.

          1. A state can unlock $9 of fed spending by coming up with $1…that is a “no brainer” unless you have no brain!

            1. But so what if there’s no need to spend the $1 in the first place. Why should the state spend money it doesn’t need to spend just because the feds promise to spend even more?

              1. So providers in their state gets the $9!! Taking the Medicaid expansion is a no brainer!

                I am a Tea Party Republican so I initially supported rejecting the Medicaid expansion in the hope of getting a superior program like Ryancare passed but now that Ryancare failed red states must accept the Medicaid expansion.

              2. Because, like it or not, all those folks who would be covered by the Medicaid expansion are still going to the hospitals and running up the tab that gets paid off by everyone else in the form of inflated prices. Those costs are going to happen – and indeed, because such folks are not getting treated earlier, are higher than they would be – so the question is does everyone pay a “tax” for 100% of their costs, or only 10% (OK, let’s call it 12% since everyone’s federal tax goes up)?

            2. A no-brainer is the myopic person who thinks it’s a good idea to further erode your state’s sovereignty by accepting more federal dollars and the strings that come with it for a bad policy.

              Some Tea Party Republican you are.

              1. No, a Tea Party Republican doesn’t want his tax dollars going to providers in other states. If his tax dollars are going anywhere he wants them to stay in his state. I initially supported rejecting the Medicaid expansion but Republicans failed to reform Obamacare so now we must expand Medicaid in order to keep our tax dollars from going t hospitals in other states.

                1. A Tea Party Republican does not accept the growth of the federal government simply to get back a share of money extorted by the federal government. Reducing it merely to a matter of money ignores the Constitution (and the constitution of liberty) and thereby is a capitulation to the administrative state. You’re playing the game just the way progressives want you to.

                  1. The Tea Party was actually started by Americans living in Atlanta that were in mortgage debt and didn’t like the banks getting bailed out while they got stiffed. The Tea Party then became a big tent party and the mission became muddled. But the Tea Party was initially about Americans being treated unfairly with respect to the bailouts…so the Tea Party wanted a bailout of their own.

                    If California gets billions in Medicaid spending then Texas should also get that same spending…it is only fair.

                    1. So your true colors are revealed.

                    2. 68% of West Virginians voted for Trump and it expanded Medicaid.

        2. I agree. I am an “early retiree” with assets but little taxable income (I am doing a Roth ladder, and thus my distributions are tax-free), and I am now on Louisiana’s Medicaid expansion (and before that I was getting the huge premium tax credit for an ObamaRomneyHeritageCare exchange plan) even though I am “able-bodied”.

    2. Medicaid is a loss for providers you nincompoop. They pass the cost on to you, assuming you’re not on Medicaid.

      1. Wrong dummy, doctors can figure out how to make Medicaid profitable or they can simply refuse to accept Medicaid patients.

        1. Which more and more doctors are doing.

          1. It is a new revenue stream and providers obviously support it because they fought the Republican reform effort.

            1. Then explain why the number of providers who are opting out of medicare has increased drastically in the last few years.

              1. I had this discussion with another commenter and they believed their doctor was starting to schedule all Medicaid patients on certain days so they could do a “cattle call” day and make the patients profitable. Doctors can make Medicaid patients profitable by giving them worse care but you get what you pay for.

        2. No, honest docs cannot figure out how to make Medicaid profitable. They hate and despise it. They also cannot make Medicare profitable, unless they are lucky enough to have a procedure for which Medicare reimbursement is still at a profitable level.

          Thus, many providers refuse Medicaid and restrict the number of Medicare patients they will schedule. Hence, the conversation I just heard my elderly father have with an elderly friend about wait times of many months to get in to see a specialist such as a pulmonologist or an endocrinologist.

          Mayo Clinic has not figured out how to make government insurance profitable.

          And as to the ER canard…your ER visits will not be paid for by the taxpayers if you earn enough money not to qualify for Medicaid. You will be billed and end up in collections if you do not pay. OTOH, if you are on Medicaid or illegally in the US, the taxpayer will indeed cover your costs. Sadly, if you ARE on Medicaid, but live in a place with a large illegal population, your visits to the ER are going to take hours and hours, because the ER is unable to handle the influx.

          And you can blame part of that on the fact that ERs are unable to rationally triage and turn away non-emergent care-seekers.

          1. Sounds like we’d better fund Medicaid more!

            1. Seriously, the ‘we broke it, now it sucks’ is one of the more infuriating Republican policy routs.

              1. I don’t think I am arguing that. I would say controlling costs is hard when the patient doesn’t pay for the services. Case: I had lunch with a neurologist one day when a Medicaid patient called to cancel an appointment because her taxpayer-funded cab had broken down on the 25-mile trip past many neurologists’ offices to the office where her appointment was to have been.

                Then there is human nature. We are stubborn creatures who do not value ourselves, and we ignore self-care and engage in terrible habits–leading to disease and injury..which are expensive to remedy. We refuse to adhere to treatments which could heal us, ending up in dire circumstances. And that tendency is not specific to any group.

                And technology is growing far more quickly than our ethics can evolve: do we provide potentially life-saving therapies (such as CAR-T at the cost of $1M per patient) to all? Do we force families who want futile care for elderly parents to pay for it with cash? (Medicare covers it.)

                Medical care is a tricky subject for many reasons. It does not lend itself to central planning and cost-control.

                Do I have easy answers? No. I am watching my mom bounce in and out of the hospital because my dad can’t care for her, but we aren’t at the point where we can force them into full-time care. It is frustrating to me–As an observer AND as a daughter who cannot order her recalcitrant parents to do what is best for them.

                1. I would say controlling costs is hard when the patient doesn’t pay for the services.

                  This is the heart of the problem with government subsidized anything.

                  Seriously, the ‘let’s spend more money on it, which increases more freeriding demand which requires that we spend even more money on it’ is one of the more infuriating Democrat policy routs.

                  1. Also don’t care for the ‘we need to do a crappy job, lest everyone will want it’ argument. Europe shows how this is not how demand works for entitlements – there is a ceiling there. Plus you have regulations so only the worthy get it.

                    1. Actually the fact European single payer systems are crappy is a feature and not a defect. So you want a health care system to be just barely acceptable because it forces people to lead healthier lives which is much more important with regard to health outcomes than actual health care.

                      So in America we have a superior health care system but in general we have worse outcomes than the Europeans so we don’t get value for our spending. Health care has many perverse incentives which is why America has seen a decline in mortality since the passage of Obamacare.

                    2. Sure there is a ceiling; they’re called long wait times ala UK’s NIH.

                      BTW: My grandfather lost his sight to glaucoma because of the wait times and lost my grandmother to cancer because of the long wait times and wrong diagnosis. They were UK residents their entire lives. My mother went from the UK to Canada then USA and prayed that illness would not occur when making a trip home.

          2. That’s nonsense. They make medical care affordable by running it on an assembly line basis. It’s part of why so many minor emergency medical centers are popping up, and it’s the future of American medicine.

            We were having a /lot/ of trouble finding a practice that would take new Medicare patients in Northern Virginia. Then, the minor emergency place I went to for a dog bite said they’d be /happy/ to act as my primary care practice.*

            How do they do it? Rotating staffs on fairly short-term contracts, including part-timers. Take patients in the evening hours. It’s set it up for efficient use of time. Everything for treatment up to minor trauma is close at hand. You give up personal relationships with “your” docs. It’s a lot like the military medicine I grew up with as an Army brat.

            *We ended up getting into a standard practice. They made /their/ money by — frankly — seeing me a lot more than was strictly necessary. Those office visits added up, but I didn’t mind as I didn’t pay for them.

          3. Wrong, doctors can make Medicaid profitable and many pediatricians and obstetricians have no choice but to figure out how to make it profitable. I have heard pediatricians that accept Medicaid referred to as “Medicaid mills” because they must get patients through so fast but it is better than the alternative.

            1. The only way they were able to make Medicaid/Medicare work is by Congress bailing them out every year. IOW more government subsidizing of healthcare using taxpayer money.

  5. ‘…it flunks even minimal “rational basis” review to which virtually legislation is subject.’

    “virtually legislation” ? 🙂

  6. Why in the world do the plaintiffs have Article III standing to sue? In order to have standing they have to claim the government has caused them some sort of concrete injury. What injury could they possibly claim? The essence of their claim is that the government has caused them no loss. They claim it has neither taxed them nor subjected them to any penalty. By doing this, they have pleaded themselves out of court and argued their Article III standing away. It’s none of the federal courts’ business what art Congress chooses to display on its walls, or how it chooses to decorate its statute books. “Laws” which aren’t enforced are not justiciable.

    1. Because it hurts their “feewings”. Oh, and also because the author of Obamacare, Barack Hussein Obama, was born in Kenya and is an illegitimate president. And did I mention Gruber and $2500??? And lastly, DEATH PANELS! So in conclusion, Obama is a secret Muslim.

    2. Your argument would work if the plaintiffs were individual taxpayers paying (or now, not paying) the tax. That argument doesn’t apply to the States who are the actual plaintiffs in this situation. The States were never subject to the tax so the imposition of it (or relief from it) has no bearing on their standing. The States argue this time the same standing arguments that they put forward last time – that they are harmed by lots of other aspects of Obamacare.

      The difference this time is that the justification the Court used to tell the States to suck it up – that the injuries that substantiated their standing last time were outweighed by congressional powers – is now moot.

      1. But if they are suing on their own behalf and not their citizens’, the individual mandate doesn’t purport to apply to states. It’s an individual mandate. Why should parties who have no basis at all for claiming they were ever subjected to a law (it doesn’t even purport to apply to them) have standing to challenge it?

        1. Because they’re not challenging that part of the law. They never were – not this time nor the last time. The States claim of standing is based on other parts of the law.

          At least, that’s how I understood the last case.

    3. The mandate to have healthcare insurance is still there and part of the ACA. The Progressive Democrats refused to put a severability [sp] clause in the Act. Hence the Article III standing for the State(s) to sue on behalf of their citizens.

  7. Obamacare was a bad idea to begin with. It did nothing to contain the costs of healthcare or pharmaceuticals, which are the roots of all the nation’s healthcare availability problems. Almost as bad, without the support of all its provisions acting together, Obamacare is unsustainable, and with the abolition of the mandate it is effectively dismantled already. Consider it gone and good riddance.

    Next time, maybe quite soon, it will be time to start over and do it right with Medicare for all. The nasty political secret behind red state opposition to universal care is that red states have already been practicing it systematically, by relying on emergency room debt forgiveness for everyone without work-related insurance?which in the red states is a lot of people. Their politicians like it that way, because blue states pay everything, while their own constituents get at least minimal healthcare, and pay nothing.

    Once the Ds get back in power, the first thing they should do to set the political stage is abolish mandated service delivery in emergency rooms in any state which refuses to expand Medicare. Six months of that, and there won’t be any red state constituency left for resistance to universal care.

    1. Oops, “expand Medicaid.”

    2. “and with the abolition of the mandate it is effectively dismantled already.”

      I can not agree with that. Sure, as far as the individual is directly concerned, eliminating the mandate ends the thing.

      However, most of Obamacare consists of mandates directed at the insurance companies, not the individual. Very expensive mandates, requiring that insurance have certain features, and that it be priced in an actuarially unsound way.

      That last is very important, because Obamacare, deliberately, compels the insurance companies to offer some people health insurance at unjustifiably low rates, rates that are guaranteed to cause the insurance companies to lose money on those policies. And yet, it doesn’t compensate the insurance companies for this subsidy they are forced to offer with money from the public treasury.

      No, it leaves them with only one way to pay for this largesse: Charging other people excessively high rates! The purpose of the mandate was to force those people to buy insurance anyway, thus keeping the insurance companies from going broke.

      Without the mandate, the notorious “death spiral becomes a vertical power dive. Obamacare is a death sentence for the insurance industry without the mandate, so it IS central to the legislative scheme.

      1. Lol, nice wishful thinking! The death spiral can’t happen because the feds have unlimited resources to fund the subsidies. So there is a price that can be set to make these policies profitable and the market is figuring it out.

        So Trump’s reforms make Obamacare sustainable because the individual market was already bifurcating with healthy individuals opting out of Exchange plans and now those people will have access to better plans. The people still in the Exchanges or on Medicaid are getting virtually free health care which they like! People like free stuff!

        1. re: “the feds have unlimited resources to fund the subsidies”

          Say what?!? Where do you think money comes from?

          1. I recognize you?did you hug a bunny too tight and accidentally kill it?

          2. The FED creates it out of thin air.

        2. “The death spiral can’t happen because the feds have unlimited resources to fund the subsidies.”

          Well this is just an ignorant assumption. The subsidies are capped and that cap is grown by about half of the current rate of growth on subsidy growth. Estimates are the cap will be hit around 2021.

          It’s generally a good idea to learn about the law you are defending before throwing out bald assertions.

          1. Lol, is that when the oceans will flood Manhattan?? You are a dumb one!

            1. 2021 is only 3 years away. Are you sure you should be calling other people dumb?

              1. It will never happen because Obamacare is too popular which we found out when the Republican reform effort FAILED! These lawsuits are absurd and Republicans just need to accept the Kenyan Muslim’s signature law.

                1. The repeal effort failed because the GOP establishment had never intended to repeal it in the first place. They’d been lying about that on the campaign trail, like they do about a lot of things that are popular with their base, but not with politicians.

                  The way you can tell this is that, 7 years in, they didn’t have an already written repeal bill sitting on the shelf. They didn’t even have a good idea what would have to be in such a bill.

                  You don’t plan how to do what you don’t intend to do.

                  1. The problem is conservative reform proposals always included refundable tax credits but when Republicans started attacking Obama in 2010 they attacked the entire law and not just certain aspects like the employer mandates. So Republicans undermined any future reforms by not having a limited and more measured attack on the law…although it is hard to argue with the gains in Congress from 2010-2014 which were possible because of the Obamacare attacks.

          2. > The subsidies are capped and that cap is grown by about half of the current rate of growth on subsidy growth. Estimates are the cap will be hit around 2021.

            Just in time for unitary Democratic control to implement “Medicare Extra For All”!

    3. Once the Ds get back in power, the first thing they should do to set the political stage is abolish mandated service delivery in emergency rooms in any state which refuses to expand Medicare.

      How about they abolish mandated service delivery outright? After all, they want to encourage people to get insurance right? And we were all required to have insurance, right? What reason is there to keep it?

    4. It did something to contain costs though Republican opposition interfered. Also, expanding health care alone won’t contain costs at any rate. Finally, the wrongful judgment that Medicaid expansion was unconstitutional as written helped the problem you cite regarding red state free riding. The original plan was better there.

      I don’t blame the owner of a car for making a bad decision because someone slashes a tire and makes it harder to drive. It expanded health care for millions. Republicans are trying to screw with Medicaid and Medicare as well. So, if that was the policy, Republicans probably would have hurt it too.

      There wasn’t support for Medicare for all. However, it did expand Medicaid (and even voluntarily, many states expanded it) and help many others with subsidies. Likewise, 1960s expansions of 1930s New Deal programs didn’t make the original ones bad ideas because they were more limited in scope. ACA helped the ball moving here and I also support doing more. I don’t know if Medicare for All is the best solution but I’m open to the idea like certain people who might run for President in 2020.

    5. Yes, expand Medicare. The program that on average pays out 300% of what the average recipient put into the system. Totes sustainable!

    6. So many … misconceptions.

      Pharmaceutical costs are roughly 13% of total spend on medical costs. For certain disease states, such as cancer, they are about 18%…and without the oncology mess we have, our costs would, indeed, be far lower-since everyone would just die quickly. Fortunately, all drugs eventually go generic, without losing efficacy, so we accumulate generic treatments which are remarkably effective.

      Of course, we could do away with pharmaceuticals, and greatly simplify the practice of medicine. With no anesthetics, no antibiotics and no pain-relievers, people would voluntarily curtail their use of the system. We could return to part of that state of nature characterized as nasty, brutish and short.

      And let us dispense with the tripe of universal healthcare. Britain’s NHS sucks. They actively ration. They do not have access to the techniques, devices and drugs that we do. The same is true even in those marvelous Scandinavian countries. Canadians come here for necessary treatment for which they would die waiting in Canada. And if you bring up Cuba, where patients must provide their own soap and linens, you will prove your total ignorance.

    7. Stephen Lathrop: ” do it right with Medicare for all.”

      That ain’t gonna cure it. Medicare has already almost run through its “trust fund,” and it and Medicaid are taking over the Federal budget. It has a lot more fraud that ordinary, insurance-run medicine. And its payment schedules become lobbying issues rather than things to be hammered out by markets. In theory it could negotiate great prices, but its political nature becomes clear when you look at Medicare and prescription drug prices.

      The big problem with pricing comes from the moral hazards associated with the way medical care is financed in the U.S., not with the fact that it isn’t run solely by the governments.

  8. The SCOTUS should rule that laws that are unconstitutional more often and pass the duty to create laws back to Congress.

    There is no authority in the Constitution for government to force people to buy a product.

    1. Which of course, now that the fine is waived, is the state of the world. You’re welcome!

    2. Except, apparently, the services of a union.

    3. “There is no authority in the Constitution for government to force people to buy a product.”

      I found this one of the more unsupported claims of them all. The Constitution provides the federal and state government a range of powers. Some of them will at times require individuals to purchase things. This idea that even requiring a stamp to mail a tax form (or a bus ticket to the office) is unconstitutional takes things a tad far.

      1. Well that’s a nice strawman argument you created. You know the “force people to buy a product” means in absent of some action. But it’s easier for you to argue a strawman that nobody else is arguing.

        1. No, I have seen people simply reference the product thing.

          I’m not sure how your way makes sense — people argued ANYTHING there (including not buying a product, such as forcing an individual to do something) was not authorized under the Commerce Clause (the whole “activity” rule for regulating commerce).

          It wouldn’t merely be purchase of a product there. So, I don’t think your way makes much sense.

  9. Laws should always be struck down entirely if any part of them is ruled unconstitutional; The alternative is making the law into something the legislature didn’t pass. Striking them down entirely at least restores a legislatively enacted status quo ante.

    1. What if the law has an express severability clause?

      1. The part of the law they’re striking down is express, too, but that’s not stopping the courts.

        Anyway, the ACA doesn’t have a severability clause, so even if that were considered an exception, it wouldn’t apply in the present instance.

    2. The status quo ante is not necessarily legislatively enacted.

      You would have an endless series of lawsuits nitpicking every minor point of a law in an effort to have the whole thing thrown out.

      1. So? Just stick to enacting things that are clearly constitutional, instead of perpetually pushing the envelope.

        1. So procedural formalism is actually in service of libertarian goals.

          1. It’s long been understood that procedural formalism advances libertarian goals, because the alternative to the rule of law isn’t no law, it’s arbitrary law.

            For instance, the Constitution isn’t really a “libertarian” document in many ways, but if actually followed the result would be much more libertarian than what we have now, because virtually all departures from the Constitution are, predictably, in the direction of less liberty.

            1. It’s long been understood if you believe the Constitution is a libertarian document. That’s not even universally held true among libertarians.
              Slavery is a pretty strong counterexample, as is the First Amendment as initially enforced.

              Sometimes formalism helps, sometimes it doesn’t. Certainly your decision to invalidate all severability clauses is less formalism and more cherry picking.

              Which, by the way, is fair. All advocates choose the procedural routs that most favor them. Those that call themselves libertarians (who are of wildly varying actual philosophies) are the ones least willing to admit this fact to themselves.

        2. Legislatures regularly pass things that they think are “clearly constitutional” but since we are dealing with a myriad of subjects in a country of over 300 million, there always will be doubts over something.

          Or, does ‘clearly constitutional’ means “meeting my test”?

          1. Feh. I think the evidence is that, at this point, Congress doesn’t even bother considering whether what they want to do is constitutional.

            1. Just because Congress’ action disagree with your idiosyncratic understanding of the Constitution doesn’t mean they’re all acting in bad faith.

              Doesn’t mean they aren’t – certainly the political incentives are Constitutionally agnostic – but your evidence looks more like knee-jerk cynicism because you’re outside of the mainstream.

              1. Do you remember the Lopez amendment? AKA the “Gun-Free School Zones Act”?

                Struck down because Congress totally forgot to even bother claiming a interstate commerce nexus. They just assumed they could ban people from being armed in large parts of the country without any enumerated power basis.

                Remember how the original NFA and Narcotics acts were enacted as tax laws, because Congressmen were aware that they didn’t actually have any authority to ban things, and wanted to shoehorn the laws into an authority they actually had?

                And yet later laws just go ahead and ban stuff, be it guns or drugs.

                I don’t think they’re acting in bad faith at this point, I think they’re acting without any faith at all, they just assume they have the power to do anything they want, and then get pissed off on the rare occasions when the Supreme court bothers to tell them otherwise.

                1. A law being struck down does not mean Congress is ignoring the Constitution. Would you be willing to say that Congress enacting stuff that is upheld automatically means they’re being faithful to the Constitution? I wouldn’t think so.

                  Morrison and Lopez were struck down because the jurisprudence about the commerce clause changed, but no one knew it yet.
                  That’s not Congress ignoring the Constitution, that’s just the breaks.

                2. It took a constitutional amendment to ban alcohol; it should take no less to ban drugs.

            2. Actually, when they took over the house in 2010, the gop insisted that any legislation proposed had to be preceded by a statement regarding the constitutional authority that allows the legislation. I am certain they have remained faithful to this noble principle…

            3. Heck, they don’t even bother figuring out what they are actually doing. ‘Read the law to figure out what’s in it.’

              I think a far better rule would be that no law can require more than two sheets of letter-sized paper in 10 pt type. Comic sans. Heh.

    3. The rule in place is a well recognized long held rule of how laws are interpreted.

      The legislature can explicitly say it should not apply. If they do not, they implicitly consented.

      The rule is sensible as compared to some law involving a range of items, sometimes not even all connected, being stuck down in its entirety because one iota of it is ruled unconstitutional. This is a rather impractical way of doing things and the average person wouldn’t actually do it in their daily life in comparable circumstances.

  10. If the individual mandate no longer generates any revenue then sure, it’s no longer a tax. However, since all penalties have been removed, it’s no longer a “mandate” either, it’s basically just a “preference” on the part of the government. So even if forcing consumers to purchase a product is unconstitutional, this law doesn’t currently force anyone to do anything – so on what basis would it be unconstitutional?

    1. I do not think the typical definitions of “mandate” support your interpretation.

  11. If they get past standing: When a legislature severs a provision, including substantially modifyingit individually, that’s pretty good evidence it considers it severance. Chief Justice Roberts was interpreting the intent of the previous Congress. The new Congress, which changed the law, had different intent. And it is the intent of the Congress that passed the current law, not what the Supreme Court previously said about the congressional intent of a previous congress, that controls.

    1. Considers it severance.

  12. Damn autocorrect! The Washington Post might explicitly censor, but software is just as good at preventing people from using certain words.

    1. Autocorrect runs on your machine’s level, not WaPo.

  13. I read the complaint and it argues at one point that the mandate does “force” states to pay for some people onto Medicaid and CHIP even without the tax penalty in place. (The tax remains until 2019.)

    If so, it would seem constitutional as part of those programs in some fashion. The CBO according to one analysis I read also assumed a fraction of people still would feel compelled to buy health care with the mandate in place. I’m not sure why but perhaps some would see the individual responsibility requirement and feel obligated to follow it as law. Such a limited burden to me is not unconstitutional and again if it helps Medicaid and so forth in some fashion, it can be deemed to fall within powers in place.

    1. The individual mandate might be the biggest legislative mistake in recent times because the CBO scored it as a cost. Basically the Democrats left over $300 billion in subsidies on the table in favor a very unpopular but largely inconsequential provision!?! That extra spending would have more than broadened the subsidies to get more healthy people into the Exchanges and make the program more popular.

      1. I need more evidence on it being “inconsequential” in the long run.

        I’m not surprised it was unpopular akin to eating your vegetables might be (though poorer people aren’t exempt there etc.) but serious people realize laws have somewhat unpleasant aspects at times.

        The mandate provided incentive to get people insurance and the CBO found that even without the tax that it served that function to some degree (it’s in their very complaint here). And, once you recognize the principle that is okay, it could be expanded at times. That is, if people make more money, maybe the tax for not buying will be higher. And, the general idea applies to employers too.

        The general idea is rather conservative and libertarian — use of the market with a nudge that allows some discretion to not buy (the tax is far from oppressive but the average person would be influenced). The responsibility not to free ride is also reasonable there. It has a moral value in fact.

        1. Well according to the CBO the individual mandate COST over $300 billion. So right there that was a HUGE mistake by Democrats because that is $300 billion more that could have been used for subsidies. The even crazier thing is that Ryancare spent MORE money than Obamacare on subsidies because it took a while to figure out how the CBO was scoring the ACA.

          Both sides made major mistakes with respect to health insurance reform but I still can’t believe the Democrats didn’t figure out was going on and vote for Ryancare which was accidentally superior to Obamacare.

  14. It is well worth litigating because every piece of that law that is defeated is and improvement.
    A liberal friend and supporter of Obamacare asked me the question of what would I replace it with?

    My glib response was when you remove a tumor what do you put in it’s place?

    My serious answer is absolutely nothing except my freedom to buy or not buy the insurance I want with no interference from government.

    1. Lol, that means you support the employer based health insurance system created by the UAW and New Deal Democrats!! Do you also want to bring back the WPA?

      1. Or eliminating rules and regulations that raise costs while pushing people into the misnamed redistribution scheme called “health insurance.” While it would violate my principle of freedom of association, I’d prefer to see the insurance companies outlawed and witness how the healthcare market corrects when individuals pay directly for the goods and services they consume. Health insurance as a concept should be limited to catastrophic contingency plans. As it is, people pay a recurring premium so that they ideally don’t pay per service. Instead, they pay the premium, a copay (which often should already cover the goods and services on its own), and subsidize the astronomical costs of a very small minority of people.

        1. I honestly think doctors like the current system which divorces payment from service. Think about it?wouldn’t you like to provide a service to a person that has no clue what they are paying for the service??

        2. So you literally want to impair the ability of other people to enter into a contract of their choosing if it doesn’t meet your requirements. Isn’t there some liberty interest in contract?

    2. Invoking ‘freedom’ as the only thing worth caring about rationalizes you right into Victorian England. At best.

      I’m a liberty fan as well, but I keep one eye on consequences as well.

  15. I’m really getting tired of the argument “If you don’t have health insurance, you’ll end up using the ER and forcing society to take on your costs.” Yes, this is true in a vacuum. However, most people without insurance don’t object to having catastrophic insurance (in fact, many people WANTED just that). What we don’t want is to pay for comprehensive policies that cover birth control, abortions and sex change operations.

    1. ^ this.
      I still don’t want it to be mandatory, but changing health insurance into a system that functions similarly to how any other type of insurance does. As it is, it just drives up costs, increases wastes, and functions as a wealth redistribution scheme.

      1. I don’t either, but I’d much rather be mandated to have a policy that covers cancer and other serious illnesses than a policy that covers checkups, antibiotics, abortion, birth control, and all sorts of other nonsense I could easily pay for out of pocket. The current health care insurance system is akin to having car insurance to pay for your oil changes and tire rotations. It’s ludicrous.

        1. That’s for sure. Pre-ACA I was diagnosed with Lymphoma, and my insurer, aside from a $3k deductible and a plaintive letter asking if I by any chance had other insurance besides them, paid the whole cost of treatment without complaint. About as much as a modest house in this market.

          Now my insurance is easily twice as expensive, the deductible is higher, and they’d only pay part of the cost if I needed the same treatment today. I’d be bankrupted.

          But my wife can get free birth control, which is really important given that I’m now sterile anyway.

    2. First off, lots of people on this blog objected to the constitutionality of ACA requiring catastrophic insurance either. And, I’m not sure what that covers — there is a slew of things people use emergency rooms for and not all of them would be covered. Just being insured for extreme things big picture is not a great policy here and in fact most people without insurance don’t have insurance. Price-wise, it is the big money items that insurance covers in the long run. To the degree smaller items help pay off the big items (how much is unclear to me), again that only goes to how comprehensive coverage is good policy.

      ACA doesn’t cover abortion except in extreme cases so that is a red herring. The average person against here, unless for religious reasons, didn’t care about birth control coverage — the opposition wasn’t as to COST there. Insurance rates aren’t higher because of birth control coverage. People can oppose for religious reasons any number of things, including something that falls under “catastrophic” insurance. The sex change operation thing is also gratuitous. When does that even come up? Rare times & very well it might be deemed “catastrophic” because it is essential for the well being of the person.

  16. Newt Fucking Gingrich (his real name; look it up) was for the Mandate until Obama (i.e., the “Black Guy”) proposed it. All so-called arguments against it are completely dishonest and opportunistic. You can’t convince me otherwise.

    1. Oooh, Newt Gingrich was for it! That’s a new one. Usually liberals say that it was a Heritage Foundation idea as if that suddenly makes it a conservative one. All of the so called arguments FOR it are dishonest. Much like every liberal argument.

      1. Liberals always opposed the individual mandate and only agreed to it because moderate red state Democrats believed it would be popular with their Republican constituents that preach personal responsibility and have health insurance anyways.

        1. Sebastian: “Liberals always opposed the individual mandate and only agreed to it because moderate red state Democrats believed it would be popular”

          No. Obama was against the mandate until he was convinced by some smart person that if you do away with the “existing medical conditions” restriction, the whole thing would collapse without it. As someone here has already put it: buy your health insurance on the way into the ER.

          Of course he didn’t actually enforce it. Rather, he kept giving waivers, waiting for it to become Hillary Clinton’s problem instead of his.

          1. Comstock-law mystical bigots still call all libertarians AND communists “liberals”. The Herbert Hoover defeat that doomed prohibition (thanks to the noncommunist American Liberal Party) was 1932. After all this time it may be proper to buy some of Dr Trump’s Butthurt Salve (and a dictionary) and maybe wake up in the 21st Century?

          2. Uh no, the only major difference between the Obama and Hillary platforms was that Hillary supported the individual mandate. This issue was thoroughly litigated during the primary which Obama won. Still, we have a Congress and they wanted an individual mandate so Obama compromised to get the legislation passed.

    2. Except Obama opposed the individual mandate from 2007-2010. The individual mandate is stupid and Trump has given us true Obamacare by repealing it.

      1. “The individual mandate is stupid”

        Except that it supports the ACA. Now watch the ACA go under, whether the Republican states suit is successful of not.

        1. Lol.

    3. “You can’t convince me otherwise.”

      Because your tiny little mind is closed and completely insulated from reality?

  17. Whether the individual mandate is severable should be decided differently if the Supreme Court follows its own logic set forth in King v. Burwell, in which the Court decided that clear language concerning the availability of tax credits for policies not issued through the State-established exchanges could be rendered ambiguous, and given a contrary meaning, by considering the purpose of the entire statute. The individual mandate was essential to preventing adverse consequences from the “must issue”, pre-existing condition, and community rating provisions; without the individual mandate to compel young healthy consumers to buy overpriced insurance to offset the costs of older sicker consumers, those provisions would necessarily drive up premiums to unaffordable levels. Since Congress decided to call it the AFFORDABLE Care Act, the elimination of the mandate would make those other elements of Obamacare toxic, resulting in an inevitable “death spiral”, and defeat the entire purpose of Obamacare. Under the logic of King v. Burwell, the individual mandate is essential to the entire purpose of Obamacare, and without it the statute collapses. Since the Court had no problem ignoring ordinary standards of statutory interpretation for Obamacare in King v. Burwell, that case now dictates a finding that the mandate is not severable, and if the mandate is now unconstitutional, the entire law must fall with it.

  18. Sitting near the Falklands reading about commiecare “requiring” mixed-economy kleptocrats to buy shyster insurance is like reading the comix. When I return Stateside and men with guns accost me to fork over, I’ll probably look on it more like armed robbery.

    1. In American we have been forced the buy health insurance since the 1940s. If your employer offers health insurance and you decline you don’t get more salary so Obamacare was crafted with the existing system in mind.

      I agree employer provided health insurance is unAmerican but it is just something we have grown accustomed to and most Americans are for some reason satisfied with their boss deciding what is best for their family.

      1. Who said you can’t negotiate a higher salary if you decline employer provided benefits? I’ve waived health insurance at companies and done just that.

        1. Yeah, you don’t get the higher salary automatically, but negotiating your salary with benefits, and then offering to decline the benefits in return for a higher salary is a valid negotiating tactic.

          Just don’t let them know in advance you’ve got coverage through your spouse.

          OTOH, we’ve tried to do something like that here, (So we could sign up for a medishare program instead of the BC/BS.) and they flatly refused. Said the workforce was already small enough that losing a few covered employees would raise the premiums for everybody else.

          1. Also generally older employees get a great deal with the policies and it is the younger people with less bargaining power that would prefer to decline coverage.

  19. “Just kill the poor and be done with them.” ?Jello Biafra (paraphrased)

  20. I had serious doubts about Obamacare from the beginning:

    “Will Obamacare make a bad situation worse?”

    Join the links and delete the spaces.

  21. Conservatives appear to have precisely two options to avoid universal health care in the relatively near term (a decade or so):

    1) Develop a different solution, and persuade Americans to support it.

    2) Perfect a machine that mass-produces poorly educated, cranky, rural, intolerance, disaffected, selfish, easily frightened, southern, elderly white males (and figure a way to register these newly minted goobers to vote).

    I see little evidence Republicans have begun either project, but perhaps it is such a secret that Jared Kushner is not permitted to know about it.

  22. My recollection is that most bills passed in Congress will have a ‘severability clause’ that declares if any provision of the bill is found un-Constitutional, that provision is ‘struck’, but the remaining provisions will remain in force. HOWEVER – the inept Democrats failed to include this ‘severability’ clause – so theoretically – if a provision is found un-Constitutional – the entire bill is now un-Constitutional.

  23. “In my view (see here and here),”

    This has been your view only since July 2009, when the individual mandate, proposed, advocated and specifically endorsed by Republicans, without a peep of objection from you or anyone else at VC, developed the fatal Constitutional infirmity of being endorsed and adopted by a Democratic President.

  24. Yes, the ObamaRomneyHeritageCare experiment should be ended, but there needs to be something that at least truly gives folks access to good, *affordable* coverage. The Democrats’ new idea of “Medicare Extra For All” seems to fit the bill very nicely as it dispenses with the idea that folks should be forced to buy coverage as well as the idea that folks should not have the opportunity to buy junk coverage (although I would say that truly fraudulent policies should still be outlawed). Of course what this does is simply allow folks to game the system by allowing them to buy coverage – which would be on an ObamaRomneyHeritageCare-esque sliding scale based on income (but with no cliff, as the max for anyone would be 10% of income – with Uncle Sam picking up the tab for this gaming, but the political will for forcing folks to act in an ungaming way is just nonexistent.

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