Health Care

Another Round of Strange Bedfellows on Severability in Texas v. U.S.

Another amicus brief on severability and the Affordable Care Act.


Earlier today, I joined three other academics—Nicholas Bagley, Abbe Gluck, and the VC's own Ilya Somin—in submitting an amicus brief to the U.S. Court of Appeals for the Fifth Circuit in Texas v. U.S. explaining how Judge Reed O'Connor bungled the severability analysis when concluded that the alleged unconstitutionality of an uneforced individual mandate requires invalidation of the entire Affordable Care Act (ACA). To the contrary, under existing severability doctrine, Judge O'Connor should have left the rest of the law completely intact.

Our brief largely recapitulates the arguments we made in a prior amicus brief below (then joined by Kevin Walsh, who is now on a separate brief focusing on a major jurisdictional problem the plaintiffs' case). Here is the introduction:

Amici's goal in filing this brief is limited. This brief takes no position on whether plaintiffs have a justiciable claim or on whether they are correct that the minimum coverage provision (commonly called the individual mandate) is unconstitutional in light of Congress's reduction to zero of the penalties associated with it. Instead, the brief assumes the answer to both questions is yes in order to reach the question of severability. That question is not debatable under established doctrine—the mandate is severable from the rest of the ACA.

Yet according to the district court, the plaintiffs, and (now) the United States, the entire ACA must fall if the individual mandate is unconstitutional. In their view, a mandate with no enforcement mechanism—eliminated by Congress itself—is somehow essential to the law as a whole. The United States takes that stunning position even though it said just the opposite before the district court, emphasizing that Congress provided "proof of its intent that the bulk of the ACA would remain in place" without the individual mandate. Federal Defendants' Memorandum in Response to Plaintiffs' Application for Preliminary Injunction 18, Dkt. No. 92 (N.D. Tex. June 7, 2018) ("U.S. D. Ct. Br."). Before the district court, the United States had contended that the statute's guaranteed-issue and community-rating provisions alone are inseverable from the individual mandate. In Amici's view, both of the United States' inseverability positions are based on a fundamental misunderstanding of severability.

The cornerstone of severability doctrine is congressional intent. Under current Supreme Court doctrine, when part of a statute becomes unenforceable, a court must ask whether Congress would have preferred what remains of the statute to no statute at all. Typically, it is a court that renders a provision unenforceable. In hypothesizing what Congress would have intended in that scenario, courts will sometimes assess the statute's functionality without the provision as a proxy for discerning legislative intent.

But this case is unusual in all of these respects. It presents no need for those difficult inquiries because Congress itself—not a court—eliminated enforcement of the provision in question and left the rest of the statute standing. So congressional intent is clear; it is embodied in the text and substance of the statutory amendment itself. In these circumstances, a guessing-game inquiry is not only unnecessary—it is unlawful. A court's insistence on nonetheless substituting its own judgment for that of Congress usurps congressional power and violates black-letter principles of severability. Yet that is what the district court did here. Its severability decision should be reversed.

The four of us do not agree on much, particularly where the Affordable Care Act is concerned, but we all agree that the decision below is unmoored from law or contemporary doctrine.

We are not the only amici critical of Judge O'Connor's decision. The Attorneys General of Ohio and Montana—Dave Yost and Timothy Fox—submitted a particularly powerful brief explaining how neither existing severability doctrine nor the original understanding of the Article III judicial power can justify Judge O'Connor's analysis. This brief does a particularly good job of explaining why self-described judicial conservatives should object to the decision below.

From the introduction:

The Supreme Court first considered the Affordable Care Act in National Federation of Independent Business v. Sebelius ("NFIB"), 567 U.S. 519 (2012). It did so again in King v. Burwell, 135 S. Ct. 2480 (2015). Both decisions had their critics. Among them, Justice Scalia, who faulted the majorities in NFIB and King for "chang[ing] the usual rules" to protect the Affordable Care Act. King, 135 S. Ct. at 2506 (Scalia, J., dissenting). Each case, he wrote, stood for "the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites." Id. at 2507.

Some agree with these criticisms. Others do not. But no one can disagree that courts should adhere to neutral principles, even in cases involving the Affordable Care Act. Whether those principles support the Act or undermine it is, or at least should be, of no concern. That is what it means to have a government of laws, and not of men.

The District Court below committed the very sin that Justice Scalia decried in King: throwing out all the usual rules in a -case about the Affordable Care Act. See 135 S. Ct. at 2506. The Act's individual mandate—the provision that orders most Americans to buy health insurance—is unconstitutional. The Supreme Court upheld the mandate as a tax in NFIB, reasoning that nothing else in Article I would empower Congress to pass such a law. See 567 U.S. at 561–74. But Congress amended the Act in 2017, eliminating the penalty for refusing to buy health insurance. As a result, the mandate cannot raise any revenue, and therefore cannot be upheld as an exercise of Congress's taxing power.

This raises the question of what to do with the remainder of the Act. Does the mandate's unconstitutionality require striking down the entire law, or is the mandate "severable"? The District Court invalidated the whole thing. That part of its decision cannot be squared with the Constitution's original meaning or binding Supreme Court precedent. As an original matter, the federal courts have no power to "strike down" entire laws; "when early American courts determined that a statute was unconstitutional, they would simply decline to enforce it in the case before them." Murphy v. NCAA, 138 S. Ct. 1461, 1486 (2018) (Thomas, J., concurring). The power to go any further is an invention of the courts, not the Framers.

As a matter of binding doctrine, courts can strike down entire laws based on the unconstitutionality of a single provision. But they may do so only if the remainder of the law is "incapable of functioning independently," or if it is otherwise "evident" that Congress would have preferred no law at all to a law without the unconstitutional provision. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 509 (2010) (citations omitted). This severability analysis usually entails asking about the hypothetical intent of a hypothetical Congress. Not here. Congress's 2017 amendment effectively repealed the individual mandate by reducing the penalty for non-compliance to $0. That effective repeal objectively establishes that the law is capable of functioning without the mandate (it already does), and that Congress would have preferred such a law to no law at all. The mandate is therefore severable, and its unconstitutionality has no bearing on the rest of the Act.

The District Court erred in coming out the other way. It failed to ask whether the now-inoperative mandate is essential to the Affordable Care Act as currently codified. (How could it be?) Instead, it asked whether the original version of the individual mandate—the one that Congress made enforceable with a penalty—was central to the original version of the Affordable Care Act. The Court thus invalidated the current version of the Affordable Care Act by assessing the importance of an earlier version of the mandate to an earlier version of the Act. To describe the approach is to refute it. . . .

This is the rare case that involves constitutional overreach by two separate branches. Congress acted unconstitutionally by enacting the individual mandate and the court below exceeded its power by striking down the Affordable Care Act in full. Assuming anyone has standing to bring this suit—a topic this brief leaves to others—this Court should hold the individual mandate unconstitutional but leave the rest of the Affordable Care Act in place.

As the Yost-Fox brief notes, there are serious standing questions in this case (in addition to the jurisdictional question raised by the Bray-McConnell-Walsh brief). While our brief did not go into the standing issues, I have addressed them previously on this blog here and here, and Nicholas Bagley addressed them for The Atlantic.

The bottom line is that the district court lacked jurisdiction to hear the plaintiff states' claims against the ACA, and once it asserted jurisdiction, the court bollixed the severabiity analysis. It's no wonder even the ACA's most ardent critics refuse to defend Judge O'Connor's decision. Here's hoping the U.S. Court of Appeals for the Fifth Circuit cleans up this mess.

NEXT: The Jurisdictional Problem in the ACA case

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  1. “That effective repeal objectively establishes that the law is capable of functioning without the mandate (it already does)”

    This is unexpected, by the way. Health insurance wonks always considered a purchase mandate necessary to avoid a death spiral in which only sick or pregnant people bought insurance. There was real life experience behind their reasoning. Washington State in the 90s tried requiring pre-existing condition coverage with no required purchase. Predictably enough, insurers stopped writing individual health policies in Washington at any price.

    The fact that the ACA is sort of working without a critical component is a remarkable fact which deserves more attention and explanation than it has received. I have a dark suspicion that it simply takes longer than a year or two to collapse an insurance market.

    1. WA state’s mandate was a victim of the massive Democratic party defeat in 1994 and I doubt the legislature was thinking too far ahead. So while it is a good lesson in the effect of not requiring mandates, its death made the retention of pre existing condition requirements only a minor side effect to the legislature that there was never any real attempt to deal with.

      But why a State couldn’t have just used its insurance regulatory authority to just mandate insurers be required to sell on the individual market in order to be allowed in the lucrative group market? Some states like Idaho might not have that power but I have a hard time believing that health insurers would just outright abandon a rich group market filled with wealthy employers like Washington to avoid much smaller losses on the individual market.

      1. Because there aren’t “rich” group markets; Wealthy employers are tough negotiators, normally the profit margin on those sales would be small, and you’d be making it up in the individual market, not the other way around.

    2. When studying physics, one of the hardest things for me to wrap my head around was why things that WERE going to happen didn’t happen instantly.

      I gather you’ve got the same problem?

      Death spirals take time to get going, and I suspect the larger the system, the longer it takes. And people haven’t been certain about the penalty for violating the mandate being gone all that long yet.

    3. The fact that the ACA is sort of working without a critical component is a remarkable fact which deserves more attention and explanation than it has received.

      I recall back under Clinton, the companies panicked and said, “To heck with it, we’ll just cover everybody,” which was not taken up as it was not the political goal. Whether they would or could have we’ll never know, but attaching to the tit of state breeds whining for more rather than efficiency efforts.

    4. Nope, Obama opposed the individual mandate from day 1. Speaker Ryan gave us true Obamacare.

      1. “Obama opposed the individual mandate from day 1”

        Yes and no. He was opposed to the individual mandate and used it against (IIRC) both Clinton and Romney, but ultimately was persuaded that it was necessary. Except that he couldn’t actually bring himself to apply it and kept giving waivers. It’s pretty clear he hoped it would become President Clinton’s problem, rather than his own.

        1. As I recall, he was pretty tight with those waivers, which is why you got the court cases like Hobby Lobby.

          What he was mostly waiving were black letter statutory deadlines. Granted, it was for the purpose of making them land on somebody else’s watch.

    5. What bloody repeal? As noted by the district court, the 2017 Congress most pointedly did not and could not (via the reconciliation process) repeal either the individual mandate or the textually clear ACA provisions that state that the mandate is essential to the statutory scheme. But everyone should just infer that intent anyway?

  2. Regarding this:

    “[According to] the United States, the entire ACA must fall if the individual mandate is unconstitutional. … The United States takes that stunning position even though it said just the opposite before the district court…”

    In all fairness, stunning and contradictory positions are the norm here. The Obama Administration told the public that the penalty was not a tax, but argued to the Supreme Court that it was. If there is a justice of contradictions in the universe (and Shakespeare thought there was, when he talked about the “equivocator that could swear in both the scales against either scale … yet could not equivocate to heaven”), legislation that would not have passed but for a contradiction will be undone by another one.

  3. “But no one can disagree that courts should adhere to neutral principles, ”

    Seriously? I have a hard time believing anyone in the legal community is THAT naive.

    1. “Neutral” in this case means “Democrat.”

  4. “Under current Supreme Court doctrine, when part of a statute becomes unenforceable, a court must ask whether Congress would have preferred what remains of the statute to no statute at all.”

    From a strictly legal point of view (so NOT addressing whether ACA is a good thing [and I think it is]), this should be a very straight-forward matter.

    “Often, when Congress passes a complex law, it will include what is called a severability clause. Such clauses declare that if a particular portion of a law is found to be unconstitutional, the rest of the statute is able to operate independently of it, and, therefore, it should be left standing. For instance, the second section of the Budget Control Act of 2011 (which established the failed Super Committee) reads “If any provision of this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act and the application of this Act to any other person or circumstance shall not be affected.” The problem with the ObamaCare legislation is that it contained no severability clause.” (spaces added) https:// www. 2012 /04/18/ judicial- review-and -severability/

    1. It cannot be a simple oversight of Congress when they drafted ACA to have omitted a severability clause, and therefore Congress’s intent was and is clear.

      I greatly hope that ACA stays (maybe with some tweaks) because it helps many Americans to obtain health care – which they otherwise would not have access to.

      But on this singular issue (severability), I think ACA might be lost.

      1. Nixing the penalty while keeping the rest of the law says the same thing, in substance, as a severability clause would.

      2. I disagree with one point. The ACA forced many Americans to obtain health care insurance without choice. Many people chose to be without health care insurance because of the cost yet the ACA mandated they pay for health care insurance which cost them more even with subsidies and the majority don’t use it because of the co-pays. Not to mention the loss of health care providers from rural and other areas that were not allowed to practice due to the ACA.

        I would prefer to see the federal government provide minimum standards, applicable to everyone, for all health care insurance.

  5. Anyway, this post is a demonstration of why the “ratchet”, where Democrats win changes, and then in power Republicans don’t reverse them, is a thing.

    Enough people on the right will always find some principled reason why the right shouldn’t win, that the right is divided. While on the left that hardly ever happens, winning IS a principle on the left.

    The ACA was, IS, unconstitutional on multiple grounds. It’s a tax law that originated in the Senate. It’s a regulation of intra-state commerce. The “mandate”, which is, of course, still in the law, just with a zero penalty for the moment.

    Why be so fussy about the basis upon which such bad law, unconstitutional for other reasons, gets struck down? You don’t want to win “dirty”? The other side doesn’t care how it wins, you know, and your strange bedfellows will desert you as soon as the shoe is on the other foot.

    Why should we be so eager to preserve “severability”, a bad doctrine that has preserved so many bad laws, and encourages omnibus bills too large to adequately scrutinize before passage, that we’d assert it even in the case of a law that lacks a severability clause?

    Do you have some secret horror of actually winning one, once?

    1. I noticed you didn’t say the tactics the Dems use are illegal (e.g. lawsuits, demonstrations, media, etc.) – and for the most part they are legal.

      You guys profess to love the rule of law and our lawful processes – right up to the point where they’re used against your purposes.

      Sigh…doncha wish we could just have a little ol’ Mussolini fascism sometimes?

      1. “Sue and settle” is only nominally legal; It consists of an agency encouraging somebody outside to file a lawsuit demanding a policy that the agency wants to adopt, but doesn’t expect it can get through the usual rule making process. The agency then deliberately loses the lawsuit, so that the agency can say, “Look, we don’t have any choice, we’re under a court order to do it!” Thus both circumventing the normal system, AND locking the policy in against future changes through the normal process.

        Demonstrations can range from perfectly legal to the sort of violence the anti-Klan acts were adopted to fight.

        And “living constitutionalism” consists of rendering the illegal “legal” by corrupting the review of laws by the judiciary.

      2. Economically, the ACA IS “fascism”.

        “Where socialism sought totalitarian control of a society’s economic processes through direct state operation of the means of production, fascism sought that control indirectly, through domination of nominally private owners. Where socialism nationalized property explicitly, fascism did so implicitly, by requiring owners to use their property in the “national interest”?that is, as the autocratic authority conceived it. (Nevertheless, a few industries were operated by the state.) Where socialism abolished all market relations outright, fascism left the appearance of market relations while planning all economic activities. Where socialism abolished money and prices, fascism controlled the monetary system and set all prices and wages politically. In doing all this, fascism denatured the marketplace. Entrepreneurship was abolished. State ministries, rather than consumers, determined what was produced and under what conditions.”

        The ACA to a “T”; Nominally, private ownership of health insurance companies continues, with a “marketplace”, but the insurers must sell policies where the government dictates both the terms of the policy, and what price may be charged. And people are mandated to buy the product.

        The ACA IS “fascism”. So it’s kind of rich complaining of fascism when somebody tries to end it.

          1. Per apedad’s youtube link, Brett’s “argument” did escalate quickly. But you see, Brett’s post demonstrates why his rhetoric is like a ratchet : A notch forward toward absurdity can never be undone; there’s a click and the only way to go is more forward still. Hysteria, of course, being the inevitable result…….

            1. What did he post that is not entirely accurate?

              1. A flacid definition of fascism that looks just like what the right was calling socialism five years ago. i.e. everything that includes any regulation or governmental effort at all.

                His definition includes the Civil Rights Acts, Social Security, Veterans Affairs, antitrust.

                1. The question is “What did he post that is not entirely accurate?”

                2. There are two ways a government can take over the economy, socialism and fascism. The ACA is an example of the latter, and mostly the US has tended fascist rather than socialist: Leaving the means of production nominally in private hands, and taking control through regulation instead of open ownership.

                  That’s not a flaccid definition of fascism, it’s a definition of the economic side of fascism. Obviously historical fascism has had other, non-economic elements to it, just as the economic definition of socialism only implies the gulag, it doesn’t explicitly state that there will be gulags.

                  And, yeah, I think it’s ironic when somebody is accused of fascism for opposing something which literally IS fascism.

                  1. So both WJack and Brett both embrace a definition of fascism that encompasses the Civil Rights Acts, Social Security, Veterans Affairs, antitrust.

                    That’s not an economic definition of fasicm, that’s straight-up not an operative definition of fascism to anyone who isn’t an anarchist. Which I know you guys are not.

                    1. What, you don’t recognize graduations of the thing? Either Mussolini resurrected is in the White House, or it isn’t fascism? That’s silly. It might be impossible to be a little bit pregnant, but you can certainly be a little bit fascist.

                      But there wasn’t a lot of “graduation” to the ACA. They literally dictated what sort of policies the insurance companies could sell, and mandated that people buy them. You don’t get much more fascist than that in economic terms, short of telling the companies that they’re not allowed to close up shop, either.

                    2. Let’s talk state regulation of insurance, health or otherwise. To do so normally would quickly lead to sticky topics of federalism, or the efficiency of government intervention by scale of application. All well-worn topics.

                      But – hey – if we’re just spewing here there’s no need to go anywhere near such subtleties. Presumably the average state insurance commission pre-ACA was pure fascism, complete with highly polished jack boots and gloomy somber uniforms. Because didn’t the states regulate “what sort of policies the insurance companies could sell”? Didn’t the states have mandates requiring people buy insurance – mainly auto, but also health?

                      Again, we’re not discussing whether federal action like the state’s is wise or not. That’s maybe a high school debate topic. This fascist shtick is more kindergarten-level….

                    3. I’m not the one who brought up fascism. That would be ApeDad. I was just pointing out the irony of suggesting that one was a fascist for wanting to repeal a fascist law.

                      And, yes, there’s far too much intervention in markets at the state level, which legally at least has the advantage of not being a violation of enumerated powers and the 10th amendment, but is still morally offensive.

                    4. Define too much regulation. Is there an empirical method of establishing a cutoff? Can some markets need more regulation than others?

                    5. You can try and take back fascism to just an academic word on a continuum, but I don’t have a lot of hope for people to react with moderation when you call everything fascist. Especially since it’s all the exact same stuff the right was calling socialist until quite recently.

                    6. Personally, I distinguish between the two, don’t blame me for idiots who can’t tell them apart.

        1. Great point?ACA is fascism that is enriching the Kushner family…which is why Trump secretly supports it.

      3. Yes, the tactics are “legal” because the left has enough Obama appointed judges to rule that any Trump action is illegal. It doesn’t matter what the basis, it’s just part of the resistance.

          1. Rules don’t matter because some judges disagree with me (in bad faith, natch). Therefore my own side’s legality no longer matters.

            And thus are the actual fascists revealed, wiling to use any method to make sure the other side gets theres, actual policy goals bedamned.

            1. You Lefties are just lying and now enough Americans dont believe your Team Blue anymore.

              You hate the Constitution and the USA. Americans who like the USA are fighting back.

              1. Oh, we’re not talking about Americans, we’re talking about you. Perhaps an American, but not exactly the mainstream, eh?

                I don’t hate either the Constitution or the USA. But I recognize you need to believe that I do, so you can hate me with the appropriate passion to justify what an outlier you are. Everyone would agree with you if it weren’t for those meddling libs!

            2. If you read “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law” to mean “No state shall prohibit any person from inserting his schlong into another man’s tuchis,” you’re acting in bad faith.

            3. Rules don’t matter because some judges disagree with me (in bad faith, natch). Therefore my own side’s legality no longer matters.

              It being illegal, per some judges, for an executive action to be undone by a future executie action is proof enough that DGL isn’t too far off.

              Obama wanted DACA? Get Congress to pass the law. Otherwise, Trump has every single right in the world to undo it wholesale.

              1. Some executive actions must follow proper validation and coordination, per rules Congress set up when delegating power to the executive.

                It’s not a judicial conspiracy, it’s Trump not following the rules set out for him.

        1. +100

          1. To them, the ends justify the means. Their “end” is destroying the West.

    2. Lately, I’ve started to believe that more people claim a principled position because asking someone to violate sincerely held beliefs is unconscionable unless they’re from a religion I don’t like. It’s an easy way to avoid making an argument and to shut down debate. Why else would a bunch of libertarians, supposedly concerned with freedom and our Constitution, swallow the suicide pill that is the Democrat party on a procedural basis? Some of the left-libertarian types are the physical embodiment of “if you kill your enemies, they win” and I can’t help but notice that enemies are significantly harder to criticize when they oppose good policy on a procedural issue that won’t be resolved with their principled stand. It’s not like both parties are equally committed to libertarian principles at this point. It is fair to categorize the Democrat party as anti Constitution and anti freedom at this point. Opposing their destruction of both entities on the grounds that Republicans violated some procedural tenet is suspicious to say the least. It would be like criticizing armed resistance against Nazis because you’re a pacifist.

      1. Those LINOs you speak of are Lefties hiding as Libertarians.

        The strategy to support Democrats to check Republicans has caused us all sorts of grief. Destroy the Democratic Party and then when its Libertarians vs Republicans, challenge the GOP on their horrible record of fiscal irresponsibility and social conservatism.

        1. LINOs, CINOs, are nothing more than Progressives hiding as something different. Just like Vladimir Lenin was a Democratic-Socialist.

          1. The Conspiracy is unpure!!

      2. Opposing their destruction of both entities on the grounds that Republicans violated some procedural tenet is suspicious to say the least.

        Accusing the Conspirators of bad faith because they don’t think the ends justify the means?

        Mistaking zealotry for virtue and principal for vice is a deadly philosophy. Kills civilizations.

        the Democrat party

        1. The point was that the conspirator is already acting in bad faith and the criticism of the logic behind “the ends justify the means” is merely a rhetorical cudgel. In practical terms, this would mean ignoring Democrats who feign concern for limited government, supporting Republicans and the courts ending the ACA, and criticizing/reforming Republicans after the fact to protect against future procedural violations.

          We have to walk before we run and that means protecting the Constitution by any means necessary, even unconstitutional measures, until we get to the point where we can actually discuss the Constitution in good faith.

          1. I’m sure it sounds stupid because it doesn’t fit classic conceptions of logic, but when you leave the clean confines of intellectual debate, sometimes you have to be a hypocrite to make things right. Ideological consistency cannot be valued as much as results. That is a far more realistic/utilitarian/Machiavellan view of the world and one we desperately need today. The ends do justify the means when the ends are life or death, zero sum matters that cannot be reversed. And before you start that “becoming what you detest” crap, remember that we’re not talking about Americans who fundamentally agree but differ on policy. We’re dealing with full blown Marxists and power hungry statists who don’t believe in our Constitutional Democratic Republic or just don’t care.

          2. I’m pretty sure Prof. Adler has no shortage of issues with Dems. That has no bearing on whether he has different issues with the GOP.

            Forever looking at the other side and never at your own gives your side infinite license.

            by any means necessary, even unconstitutional measures
            There it is.

            Not a rhetorical cudgel when you come out and say it.

            Sad, though.

    3. +1000 Brett. Also all laws should have Sunset Clauses.

      1-5 years would be very appropriate.

      1. I have an informal list of reforms I’d like to see, (Most of them have no chance of ever being implemented, of course.) and all laws having sunset clauses makes the list.

        The Vikings had something of this nature; There was a guy who was assigned to remember all the laws, and periodically recite them in public. If he neglected to mention one and nobody called him on it, it was repealed. So they didn’t just originate representative democracy, (The althing.) they originated sunset clauses, too!

        1. Yup, it would drastically reduce the number of laws, and make it impossible for stupidity like the NFA registration of SBRs, federal bans on weed, and even possibly “making false statements” crimes to exist.

  6. Here’s hoping the the SCOTUS reverses its previous unconstitutional decision to keep ObamaCare and strikes down the ObamaCare joke.

    There is zero authority for government to force Americans to buy products or services. Another reason to strike down ObamaCare is that all revenue bills must originate in the House. ObamaCare originated in the Senate.

    Get government out of the medical health and health insurance business. Americans need to pay cash for minor medical stuff and get their own cheap catastrophic health insurance for major medical stuff.

  7. “we all agree that the decision below is unmoored from law or contemporary doctrine”

    Well the penalty is a tax was just as unmoored, so getting two wrongs to make a right is ok in my book.

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