The Volokh Conspiracy

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Affordable Care Act

President Trump Rejects Premise of Justice Department Briefs in ACA Case

Once again, the President's Twitter feed contradicts the claims of his lawyers.


Last night, the President tweeted about his health care policy accomplishments:

According to this tweet, the President "terminated" the individual mandate, presumably by signing the federal tax reform bill that eliminated the tax penalty that had been used to enforce the Affordable Care Act's minimum coverage requirement, which is usually referred to as the "individual mandate." By zeroing out the tax penalty for failing to obtain qualifying health insurance, the tax reform bill turned the purported requirement into nothing more than a precatory statement, as there is no consequence for anyone who fails to comply with the statutory requirement.

Interestingly enough, the Department of Justice does not share the President's understanding of what happened to the mandate. For while the President is taking credit for eliminating the mandate, DOJ is in federal court arguing that the mandate still exists and is capable of imposing Article III injuries on individuals. According to DOJ, there is still a legal obligation to obtain qualifying health insurance, and that anyone who purchases insurance in order to comply with that requirement has suffered an injury-in-fact that satisfies the requirements of Article III standing.

A perverse corollary of DOJ's position is that Congress and the President, by zeroing out the tax penalty for failing to obtain qualifying health insurance, actually made the Affordable Care Act more coercive on the American people. This is because, after NFIB, Americans were left with a choice—obtain health insurance or pay a "tax." This was deemed not coercive by the Supreme Court, which stressed there was no consequence for failing to purchase health insurance other than paying the "tax." DOJ's position, however, is that once the tax penalty was zeroed out, the mandate actually imposes a real obligation to purchase insurance. In other words, DOJ's position is not only that Congress and the President failed to "terminate" the individual mandate, but also that President Trump—by signing the tax reform bill—actually made the mandate more coercive, by eliminating the choice to forego health insurance and pay a "tax."

In most cases, when President Trump tweets something that contradicts the statements of other government officials, it's safe to assume that the President got it wrong. In this case, however, the President is actually the one who got it right.

[Post-script: There's actually an argument that the President is wrong here, but not in a way that helps the DOJ's position. There is a serious argument, made by my co-blogger Randy Barnett here, that NFIB v. Sebelius actually eliminated the mandate, leaving just a tax penalty. Under this view, there was no mandate to eliminate, just a tax penalty to zero out. Another implication of this view is that, if the DOJ is right that there is a mandate to challenge, then the tax reform bill somehow managed to resurrect the individual mandate and reimpose it on the American people. Otherwise, there would be no mandate capable of imposing a legal obligation, let alone an Article III injury.]

NOTE: The last paragraph was edited for clarity.