The Range of Options for California v. Texas

But if history is any guide, Obamacare cases usually throw us for a loop.

We are nearing the end of April, and June is coming closer and closer. Any day now, the Court could decide California v. Texas, the ACA case. After the case is decided, the press will immediately declare a single winner or loser. But the elements of the case are far  more complicated. Here I would like to offer a range of possible outcomes for the case.

1. Standing

• Option 1.a: Neither the individual plaintiffs nor the states have standing. The case is dismissed.
• Option 1.b: The individual plaintiffs have standing, but the states do not have standing. The case proceeds.
• Option 1.c: The individual plaintiffs lack standing, but the states do have standing. The case proceeds.
• Option 1.d: Both the individual plaintiffs and the state have standing. The case proceeds.

 

2. Merits

• Option 2.a: The "mandate" is still constitutional. The case is dismissed.
• Option 2.b: The "mandate" can no longer be saved by the NFIB saving construction, but is constitutional for some other reason Chief Justice Roberts cooks up. The case is dismissed.
• Option 2.c: The "mandate" is no longer constitutional. The case proceeds.

 

3. Remedy

• Option 3.a: The "mandate" can be severed from the rest of the ACA.
• Option 3.b: The "mandate" cannot be severed from the ACA's guaranteed issue and community rating provisions.
• Option 3.c:  If the "mandate" is unconstitutional, then the District Court can also enjoin the other elements of the law that injured the Plaintiffs with standing. (Here the differences between Options 1.b, 1.c, and 1.d become important).
• Option 3.d: If the "mandate" is unconstitutional, then the "major" provisions of the ACA are unconstitutional.
• Option 3.e: If the "mandate" is unconstitutional, then the entire ACA is unconstitutional.

The Cato Brief selected Options 1.b, 2.c, and 3.c. If the Court agrees with us on 1.b and 2.c, I'll declare victory. That holding would reaffirms the core of our argument: the ACA still imposes an unconstitutional mandate to purchase insurance, separate from the penalty. And between friends, I suspect the Plaintiffs will be happy with that outcome as well. I've always been less certain about severability, in large part because the Court is very fractured on that issue. If we get more than two votes on 3.c, I'll consider it a bonus.

Alas, if history is any guide, this Obamacare cases may once again throw us for a loop.

Comments

[Moderation4ever]

I think anything short of a ruling to leave the ACA as it now stands is a victory for Medicare for All (M4E). People like and expect health care. The Republicans have failed to show an alternative to the ACA. That leaves M4E as the only real alternative. Anything weakening the ACA builds a case for M4E. Conservative AG may well strength M4E in their quest to pull down the ACA.

[rsteinmetz]

I'm not sure how much that matters to a lot of people. Somewhere around 10 - 15% of Americans don't have health coverage. It's a little hard to figure out because some people are covered by the VA some are covered by Medicaid or some other program.

Many people like the coverage they have (I do) and a large number of people seldom use the coverage they have. I didn't for a long time, as I'm getting older I use more medical services. Even many of the uninsured don't suffer because they don't need a lot of medical services.

I also wish people would stop calling it Medicare For All because the various proposals aren't much like the current Medicare System, which most people not on Medicare don't understand anyway. They are more like the Medicaid System but Medicaid for all doesn't sound as good.

[Life of Brian]

They are more like the Medicaid System but Medicaid for all doesn’t sound as good.

In my humble opinion, anyone who thinks either one sounds good either doesn't have decent private insurance or has never compared the spectrum of providers and services they're able to access now with what they would be able to access under either Medicare or Medicaid. And that's just getting in the door. Anyone who thinks that Medicaid and Medicare patients get the same level of priority and same level of care as anyone else, has never spent any serious amount of time watching/helping them try to navigate the system.

And that's as things stand right now. Imagine a world where providers were no longer able to balance the lower reimbursement rates they get from Medicare/Medicaid with the higher ones from private insurance. There's only one direction for access and quality to go, and it ain't up.

[DaivdBehar]

This matter is so way above the heads of these know nothing lawyers, they should just say, Congress has to decide.

[iowantwo]

The govt could just grant every child born $10,000 into a HSA.
Medical insurance can be bought for catastrophic.
HSA users are spending their own money and competition will enter health care.

This will never be considered because it elimitates most of the graft.

[DaivdBehar]

See my note below. I had not read yours, but support it 100%.

[Rev. Arthur L. Kirkland]

Conservatives had their chance to establish a good health care system. They failed -- partly because they didn't try, mostly because they are selfish, anti-social, and hapless -- and therefore the liberal-libertarian mainstream alliance will establish universal health care for all Americans.

[Moderation4ever]

Interesting idea. The average person will use about on third of a million dollars for medical expenses over a life time. Assuming little is used that will require about a 5% rate of return on the HSA compounded annually. That assumes it is not all used at a young age. What happens to a premature baby or a child cancer patient. Their stake could be used up before they are 5 years old.

I also question the idea of relying too much on catastrophic insurance. This is cheap insurance because it serves a relatively healthy population. What happens if you try to use it for a broader populations. It is difficult to fid out what current catastrophic plans are paying out. If we assumed that paid out 1 in 1000 policies and that applying this to a broader population this increased to 1 in 100, what would be the impact on premiums? I think the idea of universal catastrophic insurance is unlikely to work.

[DaivdBehar]

Almost all of that lifetime money you mentioned is at the end of life, painful, and pointless. When you see an oncologist, you will hear, surgery, radiation, chemo. When an oncologist gets cancer, the majority say, I am going home. That is another medical scam end of life care. Some of it is motivated by fear of litigation from crazed family members. Such family members and their lawyers must be crushed. Judges that suborn frivolous malpractice cases, which is the overwhelming majority should be fired on the spot, no matter what any constitution says about their appointments. If they cannot be fired, put their desks in the windowless boiler rooms and stop assigning any cases until they resign.

[bernard11]

It could.

But then how would "catastrophic" be defined? Anything at all once you use up your $10K?

[iowantwo]

It wouldn't be $10k. Prudent individuals would have funded up their HSA well into $6figures, over their 40 productive years, contributions plus investment returns. Prudent individuals would be buying catastrophic medical insurance, paying premiums with their HSA.

[Sebastian Cremmington]

M4A makes more sense at the state level...so the fact neither Bernie nor Warren have provided the leadership to implement M4A in their respective states means nobody really wants M4A and liberals are satisfied with the status quo.

[Moderation4ever]

Not really sure why it makes sense to do M4E at a state level? Could you explain?

[Sebastian Cremmington]

Because all of the revenue necessary to fund a M4A program is currently being spent on health care in state like Mass and Vermont in which over 95% of the population has health insurance. So the process would take 5 years and you start by transferring people with the best policies on M4A and go from there. Plus, Canada’s program is done at the province level because it makes the most sense.

[bernard11]

neither Bernie nor Warren have provided the leadership to implement M4A in their respective states means nobody really wants M4A and liberals are satisfied with the status quo.

Here I thought they were Senators, not Governors or state legislators.

[Sebastian Cremmington]

Lol, so Ted Kennedy was a “governor”. Duuuuuuh. 😉

[Martinned]

Yes, "victory", that's definitely one word that you could use if you manage to take away millions of people's health insurance.

[LawTalkingGuy]

I still can't get over the moral bankruptcy of this whole project. It is truly incredible how willing people are to inflict grave damage on millions of third parties to "remedy" a fake harm.

I mean this is the moral equivalent of burning down an entire town because you feel aggrieved at their "Give a Hoot Don't Pollute" campaign.

[Commenter_XY]

It is truly incredible how willing people are to inflict grave damage on millions of third parties to “remedy” a fake harm.

I'm confused. Are you talking about compelling people to purchase costly healthcare plans, or the potential loss of their costly existing healthcare plan? Both are grave damages, no?

[LawTalkingGuy]

Nobody is compelled to do anything. The mandate has a zero dollar penalty.

I'm talking about kicking millions off Medicaid, removing subsidies to purchase insurance from millions more, and allowing insurance companies to kick people off with pre-existing conditions, reimpose lifetime and annual caps, and kick people off when they get sick. These people are not a party to the case and didn't ask to be involved but the plaintiffs are attempting to take insurance away from them anyway. This is gravely immoral. It is absolutely depraved. If you and Josh want to do this, you should have to personally explain to a Medicaid expansion beneficiary with a serious disease what you are doing and why you are doing it. Go on. Explain to someone with cancer that you felt bad that the government told you to get health insurance (but wouldn't do anything to you if you didn't) so that's why you're cancelling their Medicaid. Maybe do it during their chemo and just rip the chemo IV drip right out of their arm.

[David Nieporent]

These people are not a party to the case and didn’t ask to be involved but the plaintiffs are attempting to take insurance away from them anyway.

Take away from them something they didn't earn or pay for and aren't entitled to.

[LawTalkingGuy]

"Take away from them something they didn’t earn or pay for and aren’t entitled to."

First of all, they're entitled to it as members of a human society that has collective responsibilities to each of its members.

But aside from that, how does the fact that they didn't pay or aren't entitled to it morally justify taking it away. If I took candy from a baby that the parent paid for, I'm in the wrong even though 1) he didn't pay for it 2) he isn't "entitled" to any piece of candy.

[David Nieporent]

First of all, there's no such thing as society.

Second, if the parent bought said candy and voluntarily gave it to said baby, then the baby is entitled to it. (That's different than the situation here, where the parent shoplifted the candy.)

[mulched]

I thought he was talking about violating the NAP by using the threat of violence to confiscate hundreds of billions of dollars to pay for someone else's healthcare.

[LawTalkingGuy]

You mean taxes?

[LawTalkingGuy]

Also, I like how you instead of stopping at "violating the NAP by using the threat of violence to confiscate hundreds of billions of dollars" you actually go onto say "to pay for someone else’s healthcare."

It would be one thing if you objected to the concept of state violence enforcing taxes generally. But, the fact that you are specifically upset at that money being used to keep someone other than yourself healthy and alive is really something. You should go to a publicly subsidized children's hospital, find an S-CHIP beneficiary receiving care and shout at them about how you can't believe your money was confiscated to pay for that, and then start ripping out the IVs.

[Malvolio]

It would be one thing if you objected to the concept of state violence enforcing taxes generally.

You mean, you would prefer if he dishonestly pretended all taxes were being used to pay to fill Congressmen’s swimming pool with Dom Perignon?

No, some taxes are being used to pay for things people like. He who robs Peter to pay Paul can always count on the support of Paul.

the fact that you are specifically upset at that money being used to keep someone other than yourself healthy and alive is really something.

You know, if you ever wake up in bathtub full of ice with your kidney missing, you will be happy to know your kidney was used to keep someone other than yourself healthy and alive.

The fact that a crime is committed with good intentions does not make it less of a crime.

You should go to a publicly subsidized children’s hospital, find an S-CHIP beneficiary receiving care and shout at them about how you can’t believe your money was confiscated to pay for that, and then start ripping out the IVs.

You mean, like in the Charlie Gard case?

BTW, I plan to steal your car, and sell it and use the proceeds to fund veterinary care for my hamster. I am sure you are OK with that.

[LawTalkingGuy]

Your hypotheticals assume that I am a horribly selfish person who can't separate good things that happen to others from bad things that happen to me.

In your kidney example, I would likely want the thief prosecuted but I wouldn't begrudge the recipient or try to get it back. Their health is important too. The bad act against me doesn't make their health and life any less important.

"BTW, I plan to steal your car, and sell it and use the proceeds to fund veterinary care for my hamster. I am sure you are OK with that."

Again, I'd want you prosecuted but I wouldn't try to take back care from the hamster.

If I got mugged and the money went to a kid's bone marrow transplant I'm not going to hold it against the kid. Because I'm not an awful person and I think the well-being of other people is important.

[bernard11]

some taxes are being used to pay for things people like.

Unfortunately for your theory, there is not unanimous agreement as to what "people like" enough to pay taxes for.

I, for example, am willing to pay to live in a country where health care is available to all, but would prefer to spend less on aircraft carriers and the like, and nothing at all on some subsidies. Your views may differ.

So we have a system in place for deciding these things and, people being as they are, hardly anyone wouldn't make changes if they could.

You have your preferences, which is fine, but your implication that there is some inherent logic that makes them objectively superior to others' looks wrong to me.

[Moderation4ever]

It would be interesting if your income tax form allowed you to check off which things you wanted your taxes to go to support. I have to wonder about the outcome of such an experiment?

[Don Nico]

They certainly look that way to me.

[Ben of Houston]

Except there is nothing stopping any of these companies from continuing to provide health insurance. They can continue to provide the exact same plans to the exact same people at the exact same price.

If they won't, that's because the ACA plans are unsustainable.

Overturning the ACA will only remove the mandates for what must be an a plan, remove the requirement to purchase a plan, and give people more freedom to do what they wish.

[LawTalkingGuy]

What about Medicaid and the loss of subsidies? .

[apedad]

"After the case is decided, the press will immediately declare a single winner or loser."

"If the Court agrees with us on 1.b and 2.c, I'll declare victory."

So only Prof. Blackman is the Siskel & Ebert of judicial decisions.

Got it.

[Aladdin's Carpet]

Most likely outcome: Mandate is severed, and the court uses this as an opportunity to throw out state standing doctrine. Which seems like a wonderful conclusion ... conservatives declare victory on something they wanted for a while now (Massachusetts vs. EPA curtailed) and everyone keeps their healthcare.

I dont like Obamacare as a program but seeing how the GOP has been unable to create a replacement ... I mean what else do you want to do?

And finally, the standing argument makes no sense. Less than no sense. Literally everyone sees this, except Prof. Blackman. If disliking having to break the law gives standing ... well, one can theoretically get standing on anything. Which defeats the whole point of the doctrine. Courts cannot fashion a remedy for that, because even an injunction would keep the law on the books. Inseverabiliy standing is somewhat more reasonable, but it does not comport with anything the court is doing right now regarding standing.

And why can't you severe the mandate? It doesn't do anything ... I just do not see how any reasonable legal analysis, no matter how conservative, can come to the conclusion the professor has.

[LawTalkingGuy]

"conservatives declare victory on something they wanted for a while now"

Do "conservatives" or whoever really want this anymore? State AGs bringing lawsuits in front of conservative courts can result in a lot of conservative policy preferences being achieved judicially.

[Aladdin's Carpet]

Idk man. I want it ... but the conservative movement has moved from the stuff I want so idk.

[LawTalkingGuy]

I mean I guess there is the issue of what it means to be conservative. A judicial "conservative" might still want to get rid or scale back Massachusetts v. EPA. This is why I was shocked that at oral argument Alito seemed to buy the standing arguments. I mean between his dissent in Massachusetts and the fact he wrote Clapper, this case was designed for him to rule against Plaintiff on standing grounds.

But at any rate, I think whoever is currently identified with the Republican Party and the American right, seems to like state brought litigation against various federal programs.

[hardreaders]

It's heartwarming how Prof. Blackman can bring together people of so many diverse views in their disparagement of his arguments. He's truly a uniter.

[Dr. Ed 2]

Roberts will be creative -- extortion is a strong motivator.

[LawTalkingGuy]

Will never stop lol-ing at the extortion argument as if Roberts didn't write Shelby County and Rucho (plus any number of other important decisions for the right.)

[Rev. Arthur L. Kirkland]

Soon enough, right-wingers will be referring to the Roberts-Kennedy era as "the good old days."

The Volokh Conspiracy should be a riot.

[mse326]

"If the Court agrees with us on 1.b and 2.c, I'll declare victory"

Of course you will. You say you can't force people to buy insurance under the law because it is unconstitutional. Your opponents say you can't force people to buy insurance because there isn't a mandate anymore given there is no enforcement provision. Victory! The Court agreed with all of us that it can't be enforced but chose my reason.

You know full well this litigation has ZERO to do with whether the Court says it is no longer a mandate or it is but unconstitutional. Nobody cares about that except for its effect on remedy. The case is and always has been about the remedy and specifically for the challengers getting rid of other parts of the law (or the whole thing).

[DaivdBehar]

Not hard, lawyer dumbasses everywhere, including in the Congress. From birth everyone gets $3500/year into a health savings account, from the taxpayer, if poor. By law, it is deposited into an Index fund, with no decision making or gambling by the person. The insurance companies or the government provide cheap insurance with a $50000 deductible, for catastrophic conditions. Imagine what happens if you walk into a doctor's office carrying a checkbook. If you die healthy, you have $millions in that account that go the health accounts of your heirs. All meds with a safe therapeutic index (low therapeutic dose/high lethal dose), are over the counter, for self prescribing. Doctors see the failures of self treatment.

I often speak of lawyer rent seeking. Medical rent seeking is 10 times bigger, 10 times deadlier, and doctors are 10 times crazier and more violent than lawyers. I am not messing with it. The lawyer can really help the nation by controlling medical rent seeking better. Instead the lawyer is worsening it with frivolous lawsuits, allowed by medicine because it generates defensive medicine, and bogus but lucrative standards of care. At least 10% of the medical budget goes to defensive medicine, a type of fraud, producing no value, except to cover the legal ass of medicine. Chopping that off is an easy saving of $400 billion out of the $4 trillion health care cost.

The patient is spending their money. They do their own prior authorizations. Doctor, how will your suggestion help me? The patient is motivated to stay healthier, because of the consequences to their own, not to that of others. The patient and doctor decide care, not the government. The doctor needs to please patients, not the insurance company to stay in business.

[Longtobefree]

I thought severability was discussed and specifically discarded during the creation of the bill.
Almost every law includes severability as a matter of routine' for the ACXA not to have severability is deliberate.

[ReaderY]

Congress severed it the penalty for the mandate. In doing so, they necessarily had to conclude that it was severable. If you do something, your actions communicate that you think it’s doable. It simply doesn’t matter what an earlier Congress said. What matters is the Congress that changed the law to what it currently says, by severing mandate enforcement from the rest of the law.

[Sebastian Cremmington]

Bingo, the most likely outcome is the zeroed out mandate is unconstitutional and the entire Trump Tax Cut is declared unconstitutional because it doesn’t contain a severability clause...the ACA has already been found constitutional so why would it be impacted by a subsequent law??

[ReaderY]

Technical error:

If the Court decides the ACA is constitutional, then the case is not dismissed. Rather, it is decided against the plaintiffs on the merits.

[ReaderY]

I suspect Roberts is trying to get a unanimous opinion and there is a holdout or two.

[LawTalkingGuy]

I don't think so. He never bothered with the much more substantial prior ACA suits. And he didn't bother with the DACA case either apparently. I know he likes consensus where he can get it, but I don't think he's going out of his way to grab Thomas/Gorsuch/Alito if he has Kavanaugh or Barrett.

[Kristian H.]

The duty is a duty to cowardice. Maybe we need a duty heroism instead?

Why not mandate a duty to advance? Make people who know of dangerous individual / situation guilty of negligent homicide when they hear gun fire and don't do anything?

[Kristian H.]

previous comment was in wrong thread. my bad.

[DaivdBehar]

If there is any medical insider here, he needs to address medical rent seeking, 10 times worse than lawyer rent seeking, in every way.