My Concluding Thoughts on Severability in Texas v. U.S.

Severability doctrine & the ACA findings seem to support Judge O'Connor's ruling

In two previous posts here and here, Josh Blackman and I contended that Judge O'Connor's conclusion that the individual insurance mandate is unconstitutional is correct. In our view, the Supreme Court already reached this conclusion in 2012. We also contended that his analysis of standing is supported by Part III.A of Chief Justice Roberts's controlling opinion--even if that opinion is in tension with questions asked during oral argument. 

But even if Judge O'Connor is correct about both of these two issues, the third remaining issue is still dispositive: Was Judge O'Connor correct to conclude that the unconstitutional insurance mandate is inseverable from the ACA as a whole, which must as a result also fall? Speaking solely for myself now, because the law of severability (such as it is) is not my area of expertise, I am more hesitant to offer a definitive opinion on this question. 

On the one hand, Congress declined to include a standard "severability clause" in the ACA. Under current doctrine, the failure to do so requires the courts to answer a difficult counterfactual question: was the unconstitutional provision so essential to the remainder of the Act that Congress would not have enacted the entire statute without the unconstitutional provision. 

During the ACA litigation, the legal team for NFIB (of which I was a member) contended that the individual insurance mandate was expressly deemed by both Congress and the government to be essential to its broader regulatory scheme. To appreciate why, we need to understand the reasoning of the decision in the case I argued in the Supreme Court: Gonzales v. Raich (2005). 

In Raich, the Court held that the Controlled Substances Act (CSA) could constitutionally be applied to the wholly intrastate possession of state-regulated medical marijuana because this activity was "economic" in nature according to a 1966 Websters dictionary definition of "economics." But the Court in Raich then offered a secondary rationale it found in dictum in U.S. v. Lopez: Congress can regulate even noneconomic activity if doing so is essential to the broader regulation of interstate commerce.

In NFIB, both Congress and the executive branch contended that the mandate was constitutional under this secondary rationale of Raich because the individual insurance mandate was "essential" to the ACA's broader regulation of interstate commerce. Indeed, Congress included in the statute itself detailed findings about how the mandate was "essential" and concluded:

The [insurance purchase] 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. (Emphases added.)

The statute also stated:

The requirement is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs. (Emphasis added.)

This conclusion came after numerous findings explained exactly how the mandate functions within the ACA's overall scheme. 

Why were these findings worded this way? Clearly, this was done to satisfy the secondary rationale of Gonzales v. Raich. That case held that, under Congress's Necessary and Proper Clause power, it could regulate local noneconomic activity if doing so was an

essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. (Emphases added.)

In other words, if Congress could not enact the individual mandate, the ACA's other components--such as guaranteed issue and community rating, "could be undercut." Here is how Judge O'Connor summarized the Congressional findings:

All told, Congress stated three separate times that the Individual Mandate is essential to the ACA. That is once, twice, three times and plainly. It also stated the absence of the Individual Mandate would "undercut" its "regulation of the health insurance market." Thirteen different times, Congress explained how the Individual Mandate stood as the keystone of the ACA. And six times, Congress explained it was not just the Individual Mandate, but the Individual Mandate "together with the other provisions" that allowed the ACA to function as Congress intended.

But these Congressional findings offered to justify the constitutionality of the individual mandate under Raich also had unavoidable implications for the severability of the mandate from he rest of the ACA--implications the government largely conceded during the NFIB litigation.

If we accept this emphatic assessment by Congress of how essential the mandate is to the operation of the broader regulatory scheme as definitive evidence of its "intent"--as seems compelling to do--then, under established severability doctrine, the mandate was inseverable. The Congress that enacted the ACA would not have done so without the individual mandate because it was essential to the broader scheme. In NFIB, even the Obama administration agreed that the individual insurance mandate was inseverable from the guaranteed issue and community ratings provisions of the Act. The rest of the ACA, the Solicitor General concluded, could be severed. 

Given that the ACA lacked a severability clause, current severability doctrine (as I understand it) requires courts to ascertain whether the Congress that enacted the law would have thought the individual mandate to be essential to its entire scheme. If current doctrine adopts this time frame, then the fact Congress deemed the mandate to be essential in 2010 does not change with the passage of time or experience. That the mandate was deemed to be essential by the enacting Congress is as true today as it was in 2010 when Congress passed the ACA and in 2012 when we argued this in NFIB.

On the other hand, the different and later Congress that passed the Tax Cuts and Jobs Act of 2017 (TCJA), which zeroed out the penalty enforcing the insurance requirement, did not seem to consider the penalty essential to the rest of the ACA it left standing. Should the courts look instead to this judgment by Congress to assess severability? Or should the courts look to the intent of the Congress that enacted the ACA? On this issue, I retain an open mind.

Judge O'Connor's severability analysis--including his discussion of the intentions of both the 2010 and 2017 Congress--seems compelling to me. It seems to me that the correct time frame is that of the enacting Congress--whose intent on the question of whether the mandate was essential to the broader scheme was made explicit. And I am therefore inclined to favor our original position on severability. (Judge O'Connor also persuasively explains why the intent of the 2017 Congress using its reconciliation procedures did not differ from that of the enacting Congress.)

But I can also appreciate why this conventional approach to severability now seems counter-intuitive under these circumstances. Perhaps if I had more expertise on severability doctrine--and a firmer grasp of its underlying theory--I would be as sure of Judge O'Connor's severability analysis as I am of his analysis of the mandate. Or perhaps I am wrong about how existing severability doctrine works. Or perhaps severability doctrine needs to be modified in a circumstance such as this. Or perhaps, per Justice Thomas, a modern severability doctrine should be repudiated.

As the litigation ensues, and I hear more from both sides, my opinion on severability may become more firm than it now is. But what I have heard so far from critics of his decision has not yet persuaded me that Judge O'Connor's decision on severability is wrong. Indeed, for what it's worth, I find it persuasive.

Perhaps the ACA champions' antipathy for this challenge is coloring their views of severability just as my sympathy for the challenge may be coloring mine. Not being a judge tasked with resolving this case, however, I can afford to reserve my own final opinion on the merits of this argument. At least for now.

Comments

[Atlas_Shrugged]

To me, this entire ACA episode, 2010 to present, has absolutely convinced me that incrementalism is a better way to go. You'd get much more societal acceptance by going slow, and enacting small changes over time. Probably better on the pocketbook, too.

Better yet, maybe the individual states should be addressing (e.g. legislating) this matter instead of the Federal Government.

[SimonP]

Suppose the TJCA had included a new "severability clause" for the ACA, specifically providing, one way or the other, that the mandate was severable from the rest of the ACA. What results?

I assume that Randy would not continue to claim that the relevant severability analysis needs to be of the as-of-2010 version of the ACA. I assume that he would concede that the ACA could now be amended to provide for this severability, notwithstanding the original statutory scheme, whatever it was.

But if that's true, the following is not clear: Why zeroing out the mandate-tax in the TCJA would not be understood to be doing precisely this, and why zeroing out the mandate-tax in the TCJA would not effectively undermine any as-of-2010 severability analysis that takes for granted that the mandate-tax be non-zero.

In other words, Randy now seems to be arguing that, while Congress can alter the original statutory scheme, it cannot alter the original statutory scheme's severability analysis.

[Dilan Esper]

Yeah, it's like a game of "let's trap Congress" to him. "A ha, you didn't use the precise words necessary to take the mandate out while leaving the rest of Obamacare intact!"

Which is the opposite of how statutory interpretation works. Instead of "let's figure out what Congress was trying to do", it's "let's figure out how we can thwart what Congress was trying to do".

[SimonP]

Randy is a little bit like that old stereotype of the old high school football star, constantly reliving his glory days well into middle age - except that, in this case, the "big game" he relives constantly was one where he was tackled short of the goal line and his team went on to lose.

[bernard11]

It's too bad that Randy, who seems to be an intelligent guy, is building a career on advancing silly ideology-based arguments when he could be doing something useful, like representing indigent defendants say.

[Lee Moore]

I assume that he would concede that the ACA could now be amended to provide for this severability, notwithstanding the original statutory scheme, whatever it was.

But if that’s true, the following is not clear: Why zeroing out the mandate-tax in the TCJA would not be understood to be doing precisely this...

Eh ? You're moving the cups so slowly we can all keep track of them. Barnett's severability rule (no idea if it's the right one, so we'll stick with attributing it to him) is that (1) if there's an explicit severability clause that's the end of the question. Only if there isn't one, do you get on to rule (2) - trying to guess the 2010 Congress's unstated intentions .

A 2017 amendment inserting an explicit severability clause falls squarely into rule (1). No need to do any further work.

Zeroing out the penalty in 2017 is not an explicit severability clause. It requires inference. Hence we've lucked out under rule (1) and fallen into rule (2). Which per Barnett requires examining the 2010 Congress's intentions.

Feel free to disagree with Barnett's severability rules on their merits, but within his scheme as stated, there's nothing remotely inconsistent in his accepting an explicit 2017 severability clause but denying that zeroing out the mandate in 2017 counts as the same thing. The whole distinction between Rule 1 and Rule 2 (and Rule 1's primacy) is the difference between an explicit severability clause and the absence of one.

[SimonP]

It's actually not at all clear to me that Randy would accept a modern amendment to include a severability clause as altering the "as of enactment" severability analysis he also employs. The stated rationale for an "as of enactment" severability analysis takes no notice of more recent enactments that don't pertain to severability, so why would it take any notice of a later Congress's decision to add an express severability clause?

So, the point of my raising the assumption is to highlight that there are subsequent-to-enactment amendments that would impact the severability analysis.

Zeroing out the penalty in 2017 is not an explicit severability clause. It requires inference.

Correct, which is why I ask why that wouldn't be a fairly obvious inference.

It makes no sense to talk about severability clauses as though they are magical devices that only function if properly invoked. They are explicit statements of congressional intent, enacted into law, stating that the invalidation of one portion or another of the covered statute should not cause the invalidation of another portion of the covered statute, because the congressional intent is to have the various portions of the statute stand independently. If you significantly alter one part of a putatively integrated statutory framework but leave the rest substantially unchanged, I do not see why it isn't fairly obvious that the statutorily-expressed congressional intent is largely the same.

Similarly (as I also note), it's not clear to me why a modern amendment to a statute cannot be understood to alter the "as of enactment" severability analysis. Randy is arguing, in other words, that we should assess the severability of the mandate-tax based on the assumption that it is an integral part of a comprehensive statutory framework, despite the fact that it is now functionally inert. How can we contend that the mandate-tax was ever such an "integral part" of the statutory framework, if it can be zeroed out so painlessly? This is never explained.

As I noted, Randy asks us to believe that, while Congress can alter the original statutory scheme, it cannot alter the original severability analysis of that original statutory scheme, save by adding an express severability clause (though it is never explained why Randy would make that seemingly-obvious concession, either).

[Lee Moore]

Whoa there. Let’s try and take one thing at a time.

1. Barnett hasn’t said whether he would accept the effectiveness of an explicit 2017 severability clause. I am assuming that he would.

I may be wrong about Barnett’s position, but my assumption is based on the crashing simplicity of – if it’s in the text, follow it. Which is a pretty routine position for textualists. There’s nothing peculiar to severability clauses that requires the courts to pay attention to them. The courts are supposed to pay attention to the text of any clause about anything. If it’s in the text, it governs. Likewise with the rate of the penalty. We don’t wonder about the 2010 Congress’s intent as to the rate of penalty once the 2017 Congress has amended the rate to zero in the text. Cos it’s in the text. And if you can get to the answer by just reading the text, you never get started on guessing intentions.

2. Barnett is not offering a rationale of his own for stating that for a severability analysis based on unstated intent – ie where we lack a severability clause in the text - we must look to the intent of the Congress which made the original enactment, he is saying that that is his understanding of existing precedent.

Thus he’s not – in this piece - trying to engage any of your arguments about whether your guesses about Congressional intent are better or worse than anyone else’s; or your views on whether it would be sensible for the law to be that when deprived of actual text telling you what to do about severability, you should pay attention to your guesses about the 2017 Congress’s intent in preference to your guesses about the 2010 Congress’s intent.

So I think you are getting overexcited, trying to pin some inconsistency on Barnett. It seems to me that he is adopting a straightforward textualist approach. First obey the text if it is there. If there’s no text make a guess at legislative intent, following precedent about how to go about this if there is precedent.

If you want to shoot him down – on what he admits is not his area of expertise – you can explain to us what error he has made in summarizing existing precedent.

[Lee Moore]

Perhaps the ACA champions' antipathy for this challenge is coloring their views of severability just as my sympathy for the challenge may be coloring mine.

Prof Barnett says this with an embarrassed air, like it's a legal faux pas, rather than the heart and soul of Living Constitutionalism.

[Sarcastr0]

'If liberals aren't always arguing in bad faith, why do I keep insisting they are?'

[Dilan Esper]

Yep. It's really pure projection, actually.

If you aren't a libertarian (i.e., if you are either a liberal who thinks that government should serve liberal ends OR a conservative who thinks it should serve conservative ends), it's pretty obvious that you want to figure out what Congress actually was trying to do and enforce it, unless the statutory text just won't allow it. That's the natural and reasonable procedure for statutory construction.

It's libertarians, and really only libertarians, who are saying that we should ignore what Congress was trying to do in order to serve the greater good of making it harder for Congress to legislate. The Barnetts of the world are the only people who are trying to use statutory interpretation doctrines to serve a grand ideological goal.

[Lee Moore]

The greater good is encouraging Congress, when it legislates, to state as clearly as it can, what the rule is. So that those governed by the rule can know where they stand.

Leaving aside the fact that liberals do not trust conservative judges to discern Congressional intent honestly, and conservatives do not trust liberal judges to discern Congressional intent honestly; even an intellectually honest judge will find it very difficult to distinguish between what Congress intended, and what he thinks Congress ought to have intended.

Whereas distinguishing what Congress actually said from what the judge thinks Congress ought to have said is much easier.

Moreover, if the judge tries to shoehorn hs personal opinion into the text, any watcher can identify the discrepancy. Whereas if the judge is supposed to be discerning intent - how can he be gainsaid ? Intent is stated nowhere.

The reasons for preferring text over intent are straightforward.

1. The fog of vagueness and ambiguity around the text is small. The fog around unstated Congressional intent is vast. Text constrains judicial discretion. The supremacy of intent is simply the rule of judges, and anathema to the rule of law.

2. Mistakes are easy to rectify under the rule of text. The legislature knows what it has to do to correct the error. Whereas under the rule of intent, judicial discretion is secure against any revised text.

The reason why we have judicial confirmation wars is because of the growing 20th century supremacy of intent over text. In a judiciary ruling by text rather than intent, it hardly matters who gets confirmed.

[ReaderY]

My take on all this is that Professor Barnett thinks not only think that the current version of the ACA is constitutional, he is incapable of thinking he isn’t. The reason that we can be sure this is his actual opinion is that he didn’t previously oppose it. And it is his previous writings, not his current one, that tell us what his opinion is.

Perhaps Professor Barnett severed his current opinion from his past non-opinion, so his current opinion controls? I’m not a severability expert, so perhaps I don’t know for sure.

But I do know this. Whether Professor Barnett has actually severed his current opinion from his past is completely irrelevant to whether I ought to think he did or didn’t. On that matter, my job as interpreter is to apply formal-sounding rules with appropriate gobbledygook jargon terms that inevitably lead to the result I want to reach. What is reality, anyway? That all depends on what is is.

And what he makes clear is that it his previous

[Dilan Esper]

Well played.

[billhuber]

The individual mandate is an example of why I believe the Affordable Care Act was a bunch of dumb ideas that were poorly implemented. The individual insurance market as envisioned by the ACA depended on a carrot and stick approach. The carrot was affordable health insurance for the unsubsidized healthy people to lure them into the market willingly. This is how insurance companies make the money to pay for their unprofitable customers. The stick was the individual mandate. The individual mandate was designed to be scary, not effective. It would never have an influence on healthy customers like affordable health insurance. In 2010 individual insurance rates were already too expensive so healthy people made their adjustments. Some stuck with their grandfathered plans. Some went to alternative insurance products. Others dropped their insurance because they were exempt from the mandate because health insurance premiums would exceed 8.15% of their adjusted gross income. Insurance companies lost their best customers but were largely protected by the Risk Adjustment, Reinsurance, and Risk Corridor provisions. There is no free lunch. Like all dumb ideas that are poorly implemented, the American government got stuck with the bill.

The only portion of the ACA that must continue to exist for the subsidized individual health insurance market to continue to exist is the Risk Adjustment, Reinsurance, and Risk Corridor provisions. If we want to continue to subsidize health insurance premiums for those people earning less than four times the federal poverty level then it will be born the general population rather than the unsubsidized healthy customers. For the unsubsidized healthy customers, this is sweet revenge. The individual mandate has always been a moot point.

[Dilan Esper]

Here's the thing. I probably don't agree with you on the merits of the health care issue, but I don't disagree that Obamacare was a hodgepodge of mostly bad ideas poorly implemented.

But that doesn't mean Barnett's arguments are good ones! Lots of bad ideas poorly implemented are (1) completely consistent with the Constitution and (2) entitled to a reasonable statutory construction that attempts to effectuate Congress' intent, rather than a bad faith attempt to thwart its intentions.

In my mind, this is the problem with the entire cottage industry of first conservative and then libertarian attempts to obtain a judicial neutering of this statute. The real objection to this is "it's a dumb way to regulate health care". Which it is, in many ways. But that's a policy argument you have to win in elections and in legislatures, and it runs into the problem the Republicans faced in 2017 and 2018 where they couldn't come up with a plausible replacement.

It's not unconstitutional. 5 justices ruled it is a valid exercise of the taxing power. And it's entitled to a reasonable construction to effectuate Congressional intent. What conservatives and libertarians need is to come up with something from their policy shop which will appeal to the American people as a replacement to Obamacare, not more litigation. And the problem they face is their policy shop has atrophied and doesn't come up with interesting ideas much anymore.

[bernard11]

No, ACA was not a "hodgepodge of mostly bad ideas poorly implemented."

It was actually a fairly sensible approach to reforming American healthcare, given political constraints. That it has not been as successful as it might have been is partly due to Republican efforts to undermine it.

I, for one, am tired of reading news articles about the plight of rural hospitals in red states.

[Brett Bellmore]

The thing is, there's no idea so bad that you can't find someone who thinks it's a good idea. And who will probably blame the idea not working out on its foes, not the idea being bad to begin with.

"Communism has never failed, it has only been badly implemented!"

[bernard11]

All true, Brett, but not much of an argument - not an argument at all, really.

Your logic goes like this:

1. All bad ideas have some defenders.
2. The ACA has defenders.
3. Therefore, the ACA is a bad idea.

You have to admit, that's a pretty stupid syllogism, even though I'm sure you think it' just fine.

[Brett Bellmore]

Yeah, that would be too stupid for me to assert as a general rule, I'm simply stating it as a response you your comment.

[KHP54]

The entire concept of severability needs to go. Bills are voted on as they exist in final form, after zero-to-tons of negotiating over details, amendments, etc. Who can say whether the bill would have passed if newly-ruled-unconstitutional provision X weren't part of the original bill as passed?

What should happen is that the entire law goes away, and Congress can try again under the scenario, "Now that we can't include X, what will we be willing to pass?"

[Dilan Esper]

That's not workable. And it is based on a libertarian principle, completely inconsistent with the Constitution itself (which was a product of legislative horse trading and which greatly increased congressional power), that it should be almost impossible for Congress to pass legislation.

The touchstone of interpreting a statute is trying to effectuate the intent of the legislature. In other words, trying to make the statute work instead of trying to make it fail. And your position is subject to ridiculous hypotheticals-- what if, for instance, a minor rider on flag burning is attached to the complex Defense Department authorization statute, which took months of congressional negotiation and horse-trading. Are you going to strike down the whole statute, when it would be easy to just sever the flag burning provision and let the rest of it stand?

[KHP54]

Damn right I would! Maybe that would teach Congress not to attach unrelated riders to important bills.

Note, I'm from WA state that has a single-subject rule for Initiatives, which has been a contentious subject for decades; so I'm well aware of the impossibility of writing a restriction enforcing this, but a rule against severability would at least cut against the most egregious abuses.

But I'd like to hear a credible defense of the notion that a "complex Defense Department authorization statute, which took months of congressional negotiation and horse-trading", should be larded up with completely unrelated stuff.

And no, it's not based on a "libertarian principle" against Congress being able to legislate, though I do think they do far too much of that. Rather, it's the principle they should do so in a careful and considered manner, and if part of their basis is overturned we have no way of separating that out so back to the drawing board is the fairest way forward.

[Brett Bellmore]

Of course it's workable. Congress would just have to stop with the omnibus bills, and start passing a bunch of short, single topic bills, instead.

[SimonP]

The problem with this absolutist view is that you only consider the positive effects it might have - i.e., giving Congress an incentive to write less complex and more thoroughly vetted legislation - without considering the mischief that it could cause.

Severability serves as an important check on judicial authority to invalidate laws. Without it, you create a powerful incentive for interest groups and politically-motivated groups to snipe at laws in an attempt to take them down entirely. The present case is a perfect example, for instance. Randy, et al., are trying to argue that the unconstitutionality of a "mandate" that carries no penalty whatsoever ought to doom the entire ACA. But even if you think the case against the ACA has merit, it's not hard to imagine how a politically motivated judiciary might push and pull at the limits of First Amendment, Due Process, Equal Protection, etc., law, in order to invalidate laws they don't like. Severability, thus, serves as a kind of way to limit that impulse, an additional hurdle that a judge has to clear before their political motivations can lead to the wholesale invalidation of otherwise duly-enacted laws.

[Lee Moore]

Just so long as we've moved off "what the current law on severability is" and on to "what the law on severability ought to be".....

Severability serves as an important check on judicial authority to invalidate laws.

I'm not sure I care too much about the importance of checking judicial authority to invalidate laws, per se. If they're unconstitutional, the judges should check 'em. And if not, not.

I'm much keener on the importance of checking judicial discretion. Judicial discretion should be as limited as reasonably possible.

Consequently, best is a default rule of "maximum severability" - ie the judge gets to strike down only the offensive provision itself, and leaves the rest alone.

Better than having judges embark on ganja-fueled speculation about Congressional intentions - not actual intentions mind you, but hypothetical alternative universe ones. Hardly likely to encourage judicial modesty.

And better than "it all flies or falls together", which as Simon implies, is a positive invitation to megalomania.

If maximum severability were the default, Congress is perfectly capable of displacing it on a case by case basis, making it quite clear in actual words which bits it wants to be glued together.

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[NToJ]

Why does the statute need to be severed if the removal of the mandate removes the only thing that was arguably unconstitutional in the first place? Without a broccoli mandate, how is there a CC problem?

[Lee Moore]

It's not a CC thing, it's a severability thing isn't it ?

If Congress enacts a law mandating (a) the construction of a sixty foot high wall along the Mexican border at a cost of $100 billion, and (b) imposing a $100 billion levy on the State of California; apparently under legal precedent, when the court strikes down the levy as unconstitutional it also gets to hypothesise as to whether the Congress that mandated the wall would have done so in the absence of the funds from the levy. And if the hypothesising arrives at a "No" it appears that the wall mandate disappears along with the levy.

[Barrister]

Maybe this has been covered, but if 2017 tax cut legislation eliminated penalty for not buying health insurance and thus rendered ACA no longer an exercise of tax power, why isn't remedy to repeal the tax cut (or that portion of the tax cut relating to the individual mandate) rather than repealing the original statute? (And, p.s., would that be funny or what?)

Related (rhetorical) q - how does president sign legislation that alters an otherwise constitutional statute and now refuse to defend it on the ground that, as amended, it is unconstitutional?

[Lee Moore]

Reducing a tax is perfectly constitutional, as are all the other bits of the 2017 statute. There's nothing unconstitutional in the 2017 statute to strike out.

The question is then what are the consequences for the 2010 statute, as amended ? And the answer from the Texas court is that it has become unconstitutional. (Nor btw do the 2010 and 2017 statutes have equal legal standing, even if they were both fully constitutional, but clashing. The later statute takes precedence, which is why the zero rate of penalty applies now, not the old rate.)

And likewise for the President - he has signed an entirely constitutional statute. The fact that this makes some other statute unconstitional (allegedly) doesn't mean the President has acted unconstitutionally, it just means the old statute is no longer legally effective, on account of having become unconstitutional.

What you might criticise the President for is continuing to implement an Act he thinks is unconstitutional. Though reasonable men, and possibly even some reasonable women, might be willing to cut him some slack until the final judgement is in.

[Ilya Shlyakhter]

"The Congress that enacted the ACA" would not have done it without a (constitutional) _tax_., but would have (and did) without an (unconstitutional) mandate. So said SCOTUS. So how was a mandate essential, when the original Congress didn't enact one?

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