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The Clever Red State Lawsuit Against the Individual Mandate, and the Justice Department's Disappointing Response

The latest state challenge to the ACA is clever. The Justice Department's response is not.

The latest state lawsuit challenging portions of the Affordable Care Act is unlikely to get very far. Like my co-blogger Ilya Somin, I don't think there's much to the suit. After it was first announced, I debated one of the lawsuit's proponents, Wisconsin Solicitor General Misha Tseytlin, in this Federalist Society teleforum.

The basic idea – that the ACA's minimum coverage provision, aka the "individual mandate," is unconstitutional now that Congress has eliminated the tax on failing to obtain qualifying health insurance coverage – is clever. After all, the penalty for failing to obtain health insurance was only upheld by the Supreme Court because Chief Justice Roberts concluded it could be understood as a tax. Now, however, there is no tax, so there is no way to uphold the constitutionality of the mandate.

If that were all there was to the suit, it would be rather inconsequential. By eliminating the tax, Congress has made the mandate unenforceable. Failing to comply has no effect, so the mandate is no more than a hortatory statement buried in the U.S. Code. So who cares? (And how do states or anyone else have standing to challenge an unenforced and unenforceable statutory provision anyway?)

The reason the suit matters is because the states claim that the individual mandate – even now that it is unenforced and unenforceable – is inseverable from the rest of the ACA, so if the mandate is unconstitutional, the rest of the law must go with it. This is a brazen and audacious claim.

Even more audacious than the states' claim, however, may be the Justice Department's response, which effectively concedes the states' claims, and gives the states a pass on standing. As Ilya noted here, DOJ concedes that the mandate is unconstitutional and – quite remarkably – argues that the mandate is inseverable from the ACA's central insurance market reforms, guaranteed issue and community rating. On this basis, DOJ has told the court that it should enter "a declaratory judgment that the ACA's provisions establishing the individual mandate as well as the guaranteedissue and community-rating requirements will all be invalid as of January 1, 2019."

It is common for the Justice Department to make strained arguments in defense of questionable federal laws. After all, we expect the Justice Department to defend the laws Congress enacts. Here, however, the Justice Department is doing the opposite. It is straining not to defend a law Congress enacted -- and doing so terribly.

To be clear, I have no real objection to the Justice Department conceding that Congress lacks the power to tell individuals that they are required to purchase qualifying health insurance. NFIB v. Sebelius already held as much (and I supported that result). My objection is to the Justice Department's cynical decision to embrace an ungrounded application of severability doctrine in an effort to undo other aspects of the ACA. The ends do not justify the means.

The non-severability claim is particularly problematic here because the plaintiff states are seeking to use an alleged constitutional infirmity created by amendments to the statute as a basis for invalidating previously enacted parts of the statute. Moreover, the non-severability claim is based upon Congressional findings made about the original statute, not the subsequent revisions. Severability does not work this way.

The current approach to severability was outlined, most recently, in Murphy v. NCAA. Writing for the Court, Justice Alito explained:

In order for other [provisions of the statute] to fall, it must be "evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not." Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987) (internal quotation marks omitted). In conducting that inquiry, we ask whether the law remains "fully operative" without the invalid provisions, Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 509 (2010) (internal quotation marks omitted), but "we cannot rewrite a statute and give it an effect altogether different from that sought by the measure viewed as a whole," Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330, 362 (1935).

However this inquiry is conceived, there is no basis whatsoever for the states' argument or Justice Department's concession on severability.

For starters, it is simply impossible to claim that Congress would not have allowed for the imposition of guaranteed issue and community rating without imposing a functional individual mandate (i.e. a mandate backed by a penalty or tax sufficient to prevent significant adverse selection in private insurance markets). Why? Because that is exactly what Congress did with the 2017 reforms. By zeroing out the tax for failing to purchase qualifying health insurance, Congress rendered the mandate unenforceable while leaving the insurance reforms in place. So Congress unquestionably did what the Justice Department is claiming Congress would not do.

Considering whether remaining parts of the law would be "fully operative" without the offending provisions only makes the Justice Department's position even weaker. The individual mandate, as it stands now, is completely unenforced and unenforceable. As a consequence, the ACA's insurance market reforms will largely operate the same whether or not it remains on the books. As Chief Justice Roberts explained in NFIB, the "only consequence" of failing to obtain qualifying health insurance is paying a tax – a tax which is now set at zero. "Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS," Roberts wrote. Further, as the CBO noted in 2017, the practical consequence of eliminating the tax penalty is substantially the same as erasing the mandate altogether. In either case, individuals face no consequence from failing to comply with the mandate. So the ACA will operate the same way whether or not courts declare the minimum coverage opinion to be unconstitutional, and there is no basis for invalidating the insurance market reforms.

The Justice Department tries to get around this problem by pointing to the Congressional findings enacted as part of the ACA in 2010. This is a cute move, as it enables Justice Department attorneys to claim they are simply adopting the legal position of the prior administration, but it doesn't work either.

Findings are just that – findings. They are not binding operative provisions of federal law. They may be evidence of legislative purpose or intent, but they do not have independent legal force. They are not law.

Even if one thinks the findings carry some weight, the Justice Department's position is still wrong. The specific findings at issue here addressed the ACA of 2010, not anything that has happened since – and quite a bit has happened. Not only has Congress eliminated the tax penalty for the individual mandate, it has taken other steps to alter the ACA's functioning as well, such as refusing to appropriate funds for cost-sharing reduction payments and eliminating the Independent Payment Advisory Board (IPAB). So even if one believed the findings made the insurance reforms inseverable from the mandate in 2010, the findings provide no basis for applying that presumption to the law as it stands in 2017.

Consulting the text of the legislative findings reinforces the point. The 2010 findings addressed specific features of the 2010 law that no longer exist. Specifically, the findings refer to an individual mandate that will "minimize adverse selection" by "significantly increasing health insurance coverage." This was a plausible claim when made about the 2010 mandate – a minimum coverage requirement backed by a tax penalty – but it is completely inapplicable to the naked, unenforced and unenforceable minimum coverage provision we have today. The mandate as it now exists is not capable of "significantly increasing health insurance coverage" because it has no operative force.

To recap, at time period A, Congress enacted the statute. At time period B, Congress revised the statute in a way that plaintiffs claim render the relevant provision unconstitutional. Because Congress A claimed this provision (as originally enacted) was an essential component to the broader scheme, plaintiffs and DOJ claim this still applies to the subsequent revision (even though Congress B didn't say so), and thereby want other parts of the statute to go down. That's just absurd. There is no legal basis for applying severability doctrine in this way, and no precedent for the Justice Department to accept such an argument.

I understand that the Trump Administration has no desire to be seen defending the ACA. Many political appointees within the administration opposed the ACA and supported the legal challenges in NFIB v. Sebelius. I have no doubt that many in the Administration genuinely believe the individual mandate exceeds the scope of the federal government's enumerated powers (as I do), and the President pledged to replace ObamaCare. For this reason, I would have had no objection to the Administration conceding the constitutional point and supporting the entry of a declaratory judgment that the mandate is unconstitutional.

Longtime readers know I have no love for the ACA. Among other things, I supported the constitutional challenge to the individual mandate in NFIB v. Sebelius. I was also severely critical of the Obama Administration's unlawful implementation of many ACA provisions and helped develop the arguments that formed the basis for the claims in King v. Burwell. I would readily support other challenges to the law or its implementation that I thought had merit.

My objection, then, is not to the Administration's take on the mandate but the cynical (and doctrinally unfounded) manipulation of severability doctrine. It is an argument unworthy of the Department, and one I am confident the courts will ultimately reject.

For more on the DOJ post, see these posts by Nicolas Bagley and Marty Lederman.

[Note: I cleaned up some of the language after initial publication and inserted additional links.]

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  • Sebastian Cremmington||

    The big difference between now and then is that we know that the CBO scored the individual mandate as an over $300 billion COST—that looks more like a penalty than tax!

  • Sarcastr0||

    Unless not everything under the taxing power is what we call a tax.

  • Allutz||

    Criticizing attorneys on severability arguments is like criticizing gamblers on their roulette predictions. Its a random space where making predictions is evidence of your own ignorance.

  • Al S||

    This article is pure gaslighting.

    The Obamacare supporters told us over and over and over and over and over and over again that all three prongs of ACA are necessary: guaranteed issue, subsidy, mandate. You simply can't have any of them without the others. It's the famous theee-legged stool. The stool doesn't work if you take out any of the legs. If you Google ACA and Three Legged Stool, and you'll find a gazillion articles making this claim: all three prongs are indispensible for the law to work.

    Now, one of the prongs is gone, and it's all Emily Litella! Never Mind! You never needed all three prongs for this law to work! Forget everything we've said for the last 8 years!!!

    In fact, not only should we forget everything that the ACA supporters have told us for 8 years, but now claiming the law can't work without all three legs of the stool is "a brazen and audacious claim"!!!

    It's amazing how fast things can go from "all three legs are indispensable" to how dare anyone make a "brazen and audacious claim" that all three are indispensable. Pure gaslighting.

  • Brett Bellmore||

    "Now, one of the prongs is gone, and it's all Emily Litella! Never Mind! You never needed all three prongs for this law to work! Forget everything we've said for the last 8 years!!!"

    I think you're misunderstanding the argument. It's not about what "works", it's about what's constitutional. Unworkable laws can still be constitutional.

    I really dislike the ACA, and yet agree that by zeroing out the mandate Republicans actually, astoundingly, managed to make it worse. Way to go, Republicans!

    And yet, once one accepts that Congress is entitled in the name of "interstate commerce" to dictate the terms of insurance policies sold by individual state insurance companies, this abortion of a law becomes "constitutional". Its current unconstitutionality, while assuredly there, is due to aspects the Supreme court is currently determined to permit.

    And the Republicans stupidly removed the best argument under current precedent for striking the thing down. Idiots.

  • apedad||

    Repubs don't care about Americans or the United States of America.

    They only care about winning the next election.

    Issues don't matter; facts don't matter.

    Consistency...integrity...loyalty...morals...what are those?

    And you voted for Trump.

    You people are truly disgusting.

  • Brett Bellmore||

    Technically, I intended to vote for Trump. Had a close relative die late Friday before the election, and spent election day in a funeral parlor five states away from home.

    But I'll be sure to vote for him in 2020.

  • ||

    How do you figure? SCOTUS had already upheld the law.

    In any case, the real problem is that most "conservatives" have conceded the federal government's power grab.

    "No one disputes Congress' authority to regulate private health insurance policies."

    "No one disputes Congress' authority to regulate firearm possession."

    Actually, I do dispute that. Whenever some boneheaded liberal proposes "universal background checks" aka bans on private sales, conservatives only dispute the effectiveness of such checks. They NEVER contest the idea that Congress has any authority to regulate gun sales between individuals in the first place.

  • Al S||

    "I think you're misunderstanding the argument. It's not about what "works", it's about what's constitutional."

    No, I don't think it is. I think the argument is about whether the constitutional parts are severable from the unconstitutional parts. Which is not addressed in your comments at all.

  • NToJ||

    But they aren't really challenging the constitutionality of the mandate. They're challenging the constitutionality of the rest of the ACA. The original challenge to the mandate depended on there being a taxable (or at least punishable event). That was the broccoli mandate. Without any enforcement mechanism, there's no broccoli mandate. And so the original constitutional argument folds in on itself, too.

  • FlameCCT||

    Yet individuals only have a choice to buy broccoli and only brococoli or nothing. IOW pay higher prices for broccoli or nothing (i.e. no corn, beans, etc.)

  • NToJ||

    Are you arguing that the Constitution guarantees the right to buy corn or beans? Can you cite the provision? There's little dispute that current jurisprudence allows the feds to ban the sale of goods, so where are you going?

  • TwelveInchPianist||

    "Now, one of the prongs is gone..."

    One of the prongs is not gone. You are still required, by law, to buy insurance. If you don't buy insurance, you are not law-abiding.

  • Al S||

    "One of the prongs is not gone. You are still required, by law, to buy insurance. If you don't buy insurance, you are not law-abiding."

    The point of all of this is that such a law is unconstitutional. The legal requirement to buy insurance was only upheld as a tax. Now that there is no tax, it can no longer be upheld as a legal requirement.

  • NToJ||

    Now that there is no tax, there's no argument that the mandate unconstitutionally regulates economic non-activity, either.

  • ThomasD||

    "You are still required, by law, to buy insurance. If you don't buy insurance, you are not law-abiding."

    And some wonder why 'first we kill all the lawyers' is often misunderstood.

  • Rossami||

    Your argument does not support your conclusion.

    As you say, the Obamacare supporters argued that it was inseparable though they explicitly did not include that as part of the law. As Prof Alder notes above, a subsequent Congress separated it - and, so far at least, nothing has failed.

    All you are saying is that the Obamacare supporters lied. The current Obamacare opponents are arguing that we should hold them to their word regardless of the truth of their statements. Prof Alder is arguing that as a legal principle, we should pay attention to actual truth rather than the hype made during the legislative process.

    You are free to disagree with Prof Alder but that has nothing whatsoever to do with gaslighting.

  • NToJ||

    "...and, so far at least, nothing has failed."

    Well it hasn't been that long, has it?

  • Al S||

    The repeal of the individual mandate doesn't even occur until 2019. I guess we should conclude that because the ACA hasn't failed before the mandate repeal even occurs means we should ignore everyone who said the mandate is essential to the law.

  • NToJ||

    "I guess we should conclude that because the ACA hasn't failed..."

    ...then all those Republicans who said it was a total failure were just fat liars.

  • Al S||

    " the Obamacare supporters argued that it was inseparable though they explicitly did not include that as part of the law"

    I don't understand what you are claiming here. A law's severability clause would state that the law *is* severable; the fact that the ACA didn't include a severability clause provides evidence that the drafters of the law did *not* believe it is severable. Which is entirely consistent with the legislative history and the many, many, many, many, many, many, many claims of ACA supporters that the law is a three-legged stool that requires each of the three prongs. Everything we've been told from 2010 to now is that the law is not severable - that all parts of it are indispensible.

    And what Professor Adler is telling us is *not only* that we should all reverse our beliefs and now ignore the many, many, many, many, many, many, many claims about the three-legged stool, but *also* that refusing to reverse ourselves is "brazen and audacious".

    Apparently, zeroing out the Obamacare individual mandate tax in December was an implicit order that everybody needs to become completely inconsistent with respect to severability.

  • NToJ||

    "...the fact that the ACA didn't include a severability clause provides evidence that the drafters of the law did *not* believe it is severable."

    You're not understanding the argument. Since Congress repealed the mandate portion of the ACA, it should be apparent that Congress does not think the mandate is an essential component of the ACA. You keep insisting on the original ACA's non-severability, but Congress is entitled to change its mind, and it did, here.

  • Brett Bellmore||

    Severability has to do with what courts do, not the legislature. Every last clause of a law is "severable" by act of the legislature, inherently.

  • NToJ||

    Right, but there's no reason for the court to engage in a severability argument because Congress has taken out the only provision that would have arguably made the ACA unconstitutional, at least under the broccoli mandate argument. Put differently, there's no reason to rely on the majority's constitutional avoidance argument (that it's a tax) to save the ACA, because the penalty was the only thing raising a constitutional issue under the Commerce Clause.

  • TwelveInchPianist||

    Congress didn't repeal the mandate. The ACA says, "An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month."

    You still have to have insurance. Congress could have removed this language if it wanted to, but chose not to.

    What it did say is that "Section 5000A(c) is amended—in paragraph (2)(B)(iii), by striking '2.5 percent' and inserting 'Zero percent'" and ditto for other language setting a penalty.

    So they're still making me eat broccoli.

  • Josh R||

    The mandate has been de facto repealed.

  • TwelveInchPianist||

    Sez you. But the law, as amended, unambiguously contains the mandate, and it unambiguously contains express findings that the mandate is integral to the rest of the ACA. Congress chose not to remove the mandate, and it chose not to remove or amend the findings. If you want to say that all that statutory text is just a nullity or surplusage, fine, but my understanding is that courts are supposed to assume that statutory text is there for a reason.

  • NToJ||

    If you're going to get this pedantic, it's still a tax, then, just a 0% tax. In which event the states' argument still crumbles.

  • bernard11||

    All you are saying is that the Obamacare supporters lied.

    Are you really claiming that all arguments in favor of some policy which turn out to have been inaccurate are lies?

  • Josh R||

    The Obamacare supporters told us over and over and over and over and over and over again that all three prongs of ACA are necessary: guaranteed issue, subsidy, mandate.

    It wasn't Obamacare supporters who set the tax to $0. In 2017, Congress (Obamacare opponents) informed us the rest of the law would still work by leaving the rest of the law intact. The fact that an earlier Congress (Obamacare supporters) felt the rest of the law wouldn't work is not relevant to the legal analysis.

  • Al S||

    "In 2017, Congress (Obamacare opponents) informed us the rest of the law would still work by leaving the rest of the law intact."

    I don't think they "informed us" anything about the rest of the law. The mere fact that they zeroed out the tax level of the individual mandate doesn't say anything about the guaranteed issue requirement, the subsidy requirement, the Medicaid expansion, the existence of the Department of Health & Human Services, the existence of the Department of Education, or the other 23,000 pages of the US Code.

  • Josh R||

    I agree the mere fact of zeroing out the mandate doesn't inform us. What informs is leaving intact everything else.

  • TwelveInchPianist||

    What they left intact was the mandate, and findings like the following:

    " The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market."

    They could have removed the mandate itself. And they could have amended that finding. But they didn't. No, you can argue over what Congress really meant, but the statutory text is unambiguous.

  • Josh R||

    Professor Adler addressed your argument on the importance of findings in the original post.

  • Sebastian Cremmington||

    Actually on the campaign trail in 2008 Obama empatically and eloquently stated an individual mandate was not only unnecessary but stupid. So the Supreme Court will have to rule which rhetoric they will listen to when making a ruling.

  • bernard11||

    My objection, then, is not to the Administration's take on the mandate but the cynical (and doctrinally unfounded) manipulation of severability doctrine. It is an argument unworthy of the Department, and one I am confident the courts will ultimately reject.

    Then why describe it as "clever," or "cute?"

    It's not. It's a stupid person's idea of a good argument. You can almost hear the chortling: "Hah. We got 'em now," etc. as it was dreamt up.

  • Rev. Arthur L. Kirkland||

    I can't get too excited about these transient developments.

    The people who don't see single-payer health care coming to the United States are the folks who never saw gay marriage, legal abortion, or desegregated schools coming, and anti-miscegenation laws, creationism classes, contraception bans, or school prayer going.

  • Sanctimonica||

    True. And single payer healthcare is perhaps the most justifiable social service proposed in the last 241 years. Indeed, make sure the citizenry is healthy, and let them handle the rest.

  • Joe_dallas||

    Except for the minor detail that Health Care - while a factor in life expectancy , remains a distant factor compared to lifestyle, diet, exercise, behavior, and genes in determining health and life expectancy.

  • Rev. Arthur L. Kirkland||

    Are increased lifespans are to be attributed to genes, exercise, diet, and lifestyle rather than to health care?

    Recent developments in exercise, diet, and behavior include the sedentary lifestyle; McDonald's; video games; KFC's Double Down; around-the-clock cable television; Hardee's; office jobs; the Wendy's Triple; driving golf carts onto greens; the Big Gulp; and home delivery of Pizza Hut products.

    Me? I blame vaccines, antibiotics (and antivirals), anesthesia, chemotherapy, heart surgery, antisepsis, contraceptives, radiology, advances in obstetrics, and the like. But I've always been partial to science, reason, education, and progress.

  • Joe_dallas||

    One of the major premises of the need for obamacare was that other industrial countries with sociallized healthcare had longer life expectancies that the US and therefore healthcare reform / ACA or socialized healthcare would improve health outcomes and life expectancies in the US.

    Compare the US with virtually every other industrial country, The US ranks even or above in most every sub demographic category.

    Diet, exercise, livestyle, demographics and your gene pool remain the primary factors in life expectancy.

    The major increase in life expectancies occurred in the early 1900's, long before most the items you mentioned. Things like sanitation, food quality, transportation, reduction in poverty (things provided by fossil fuels, etc.)

    The ACA was supposed to bring us lower health care costs and better health outcomes.
    It has done nothing to improve health outcomes,
    Raised costs and
    devastated the individual health insurance market.

  • bernard11||

    Devastated the individual market?

    Come on! Did you ever try to buy an individual health insurance policy? I did. No fun.

  • Joe_dallas||

    "Devastated the individual market?"

    "Come on! Did you ever try to buy an individual health insurance policy? I did. No fun."

    That's my point

  • Joe_dallas||

    "But I've always been partial to science, reason, education, and progress."

    If you actually followed the science, then you would have better grasp of why there are the differences in health outcomes between countries with socialized / nationalized medicine/healthcare and the US.

  • Sanctimonica||

    OK Joe, I'll grant your point that health care wouldn't cure our national penchant for self destruction [a total non sequitur], but what's a more justifiable social service proposed in the last 24 years?

  • Joe_dallas||

    A more justifiable social service -

    Free Transportation
    Free Lunch
    Free life insurance policy
    Free internet
    Free housing
    Free college education
    Free cell phones
    No income tax except for the 1%
    Any other suggestions

  • Sebastian Cremmington||

    Single payer would be the biggest windfall to people with good jobs in 100 years! The fact Republicans actually like paying for health insurance makes single payer in America the dumbest crusade since gays wanting to be subjected to lifetime alimony!!

  • ReaderY||

    The fundamental problem here is justiciability. That which is not enforceable is not justiciable.

    Article III courts simply have no jurisdiction over the artwork Congress chooses to decorate their surroundings with, neither the hortatory quotes they choose to decorate their walls, nor the hortatory statements they choose to decorate their statute books.

  • ReaderY||

    And that which Congress severed, it necessarily concluded was severable.

  • Rossami||

    While I understand and appreciate Prof Alder's principled approach to severability doctrine, I think the post is premised on the hidden assumption that it should be equally difficult to add or to remove a law or regulation. As a matter of social policy, I would draw that line differently.

    The Founders deliberately made it somewhat difficult to get new laws and regulations imposed. I think that has been a very positive policy for ensuring the freedom and liberty of citizens. I also think that it should be significantly easier to get old laws and regulations removed than to get them imposed. The Founders did not set up such a system but I can't help thinking they should have. Yes, that would create a bias in the legal system. Yes, it's a bias that could probably be abused at the margins. But as a broad principle, it's a bias that I think would be better for liberty overall.

  • Sanctimonica||

    So the individual mandate survived because it was a tax. Now, there is no individual mandate. So what exactly are they attacking? "It's a tax," is no longer necessary as an existential rationale for the mandate because there's no longer a mandate!

    "Clever." A word that rhymes with "dumbest ever."

  • ||

    Because there IS still a mandate. It's just a mandate that the violation of which carries no penalty, financial or otherwise.

  • NToJ||

    The broccoli mandate has become the broccoli suggestion! Hahahaha.

  • Sanctimonica||

    If you can't be compelled to do it, how is it a mandate?

  • FlameCCT||

    1. The individual mandate is still in the law therefore one is still breaking the law if they do not have health care insurance.
    2. If one decides to abide by the law and purchase health care insurance then one can only chose the mandated insurance, nothing else.

  • NToJ||

    1. There's no standing for "breaking the law". There has to be a threatened or actual governmental action against you. I can't just go challenge any unenforced law on constitutional grounds.

    2. Why do you think this matters for constitutional purposes? So far as I can tell, this isn't even an argument the states are making.

  • NToJ||

    This is all a cowardly attempt to get the Supreme Court to do what the Republicans swore they would do forever. If they don't like the ACA, they should just repeal. They control Congress and the Presidency. Just like the Democrats should have repealed DOMA during the 111th.

  • ||

    No, they don't. They don't have actually have 51 Senators. They have 48. Collins, Murkowski, and McCain are Democrats.

  • NToJ||

    Derp derp Republicans are Democrats derp derp. The Republican party claims all three.

  • M.L.||

    horatory = hortatory?

    Nice, new word for me.

  • dwshelf||

    The reason the suit matters is because the states claim that the individual mandate – even now that it is unenforced and unenforceable – is inseverable from the rest of the ACA, so if the mandate is unconstitutional, the rest of the law must go with it. This is a brazen and audacious claim.

    So was Roberts incorrect to connect them?

    I'm not following how both Roberts and Adler/Somin can BOTH be right.

  • Josh R||

    What do you think Roberts did that conflicts with Adler's argument?

  • Josh R||

    Why is the DOJ, unlike the state lawsuit, only attacking guaranteed issue and community ratings instead of the entire ACA? The does the Administration think it is good politics to kill the most popular part of Obamacare?

  • Brett Bellmore||

    It might be the most popular part, but it's also the most damaging: Requiring a private industry to run a welfare program for the federal government, off budget, by mandating that they sell their product below cost.

    Of course getting something below cost is popular... until it stops being available at any price because the people who sell it lose money!

  • bernard11||

    Right.

    If you can't afford health insurance because you get sick, too bad. The great god Market must be worshipped.

  • steve sturm||

    Question: for legal purposes, is the 2010 Congress the same as the 2017 Congress? If not, it's not a jump to argue that the 2010 Congress would NOT have passed Obamacare without the mandate/penalty. (put it this way: if Congress in 2010 was willing to pass Obamacare without the penalty, why wouldn't they have done so? Because they wanted to be criticized for forcing people to buy insurance?)

  • Josh R||

    Of course Congress would not have passed Obamacare without the mandate. So what? The 2017 Congress isn't the same as the 2010 Congress, and the legal analysis of severability applies to what the 2017 Congress did.

  • steve sturm||

    applies to what the 2017 Congress did? or the 2010 Congress?

  • NToJ||

    2017.

  • TwelveInchPianist||

    "the legal analysis of severability applies to what the 2017 Congress did."

    Why wouldn't the severability analysis apply to the statutory text as a whole, as passed in 2010 and amended in 2017?

  • NToJ||

    It does. The "text as a whole, as passed in 2010 and amended in 2017" is "what the 2017 Congress did."

  • TwelveInchPianist||

    And the text as a whole says that there is a mandate, that the mandate is an essential component of the larger regulatory scheme that includes guaranteed issue, and that there is no penalty to enforce the mandate.

  • NToJ||

    Agreed. So what, though?

  • TwelveInchPianist||

    So Congress has imposed a requirement, without a penalty, to purchase insurance. And it found that this requirement, even with zero penalty, is essential to the operation of its larger regulatory framework. But it doesn't have the power to impose the requirement without the penalty. So the entire framework goes.

  • Josh R||

    Your argument rests on the highly unlikely proposition that the 2017 Congress believes an insurance mandate with a penalty is not essential to the larger framework, while an insurance mandate without a penalty is.

  • TwelveInchPianist||

    "Your argument rests on the highly unlikely proposition..."

    My argument rests on what the statute, as amended, says. Since Congress is a collective body, "what Congress believes" is kind of an ambiguous concept, but not so much when they make express findings.

  • Al S||

    Seems to me they are two different Congresses. Which did different things.

    Here's how I see it:

    We know that the 2010 Congress passed the ACA with the individual mandate tax, guaranteed issue, and community rating.

    We also know that the 2017 Congress passed a law changing the mandate tax rate to zero.

    We do NOT know if the 2010 Congress would have passed the ACA with only the guaranteed issue and community rating. (My suspicion is that they would not have.)

    We also do NOT know if the 2017 Congress would have passed the ACA with only the guaranteed issue and community rating. (My suspicion again is that they would not have.)

  • NToJ||

    "We also do NOT know if the 2017 Congress would have passed the ACA with only the guaranteed issue and community rating. (My suspicion again is that they would not have.)"

    But that is the actual compromise reached. The 2017 Congress didn't have the votes to repeal the ACA, but did have the votes to repeal the mandate.

    The states' argument is bizarre, anyway. There's no reason to reach severability, because with the tax out, there is no mandate. Without a mandate, you no longer have a constitutionality issue with the ACA at all.That the mandate operated like a tax was the original argument for why it exceeded Congress's authority under the Commerce Clause. Now there's no tax, there's not even a Commerce Clause argument to be made.

    The states' remaining argument is that the ACA no longer survives rational-basis scrutiny, or something. But a mandate is authorized by the Commerce Clause, or even the Spending Clause. And the infirmity (that it forced people to engage in economic non-activity or some shit) is no longer around to point to.

    It's all too clever by half.

  • Josh R||

    I fully agree with NToJ that we know the 2017 Congress passed legislation that has guaranteed issue and community rating without (de facto) a mandate.

    I also agree the argument that the mandate is now unconstitutional is bizarre since it has been de facto repealed. On the other hand the law hasn't been de jure repealed and the NFIB Court said raising some revenue is the essential feature of a tax. So, the law is still on the books, it can't be construed as a tax, and thus it is unconstitutional.

  • FlameCCT||

    However the 2017 Congress did not repeal the mandate. They changed the amount of the penalty.

  • Josh R||

    That's right FlameCCT.

    Thus, we can conclude the 2017 Congress wanted guaranteed issue and community ratings with a $0 tax penalty. We can further conclude that the 2017 Congress would not object to guaranteed issue and community ratings with a de jure repeal of the mandate since a $0 tax penalty and de jure repeal of the mandate have the same effect.

  • TwelveInchPianist||

    "We can further conclude that the 2017 Congress would not object to guaranteed issue and community ratings with a de jure repeal of the mandate..."

    Except for the fact that they chose not to enact a de jure repeal of the mandate, and instead chose to leave the mandate, as well as the findings that the mandate is essential, intact.

  • QuantumBoxCat||

    Given that David Bernstein, in his book "Lawless" (p. 28-29) criticized the Obama DOJ for not defending DOMA, citing the dissenting Justice's similar criticisms, I'm sure he is now hard at work writing a post chiding the Trump DOJ. Should be an interesting read...

  • TwelveInchPianist||

    The full title of the book is "Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law"

    At least with respect to this case, Bernstein can't accuse Trump of engaging in unprecedented lawlessness.

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