The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Affordable Care Act

Would Justice Alito Have Struck Down the GOP Obamacare Replacement?

The logic of Justice Alito's California v. Texas dissent would apply equally to the Affordable Care Act replacement Republicans tried to pass.


As noted in my prior post on the California v. Texas opinion, there are some curious elements of Justice Alito's dissent. Among other things, Justice Alito relies selectively on legislative history of bills that did not pass as a basis for discerning what the 2017 Congress did or did not intend.

One curiosity I overlooked is that while Justice Alito focuses on what folks in the House did (and did not do), he completely ignores what happened in the Senate. So, Justice Alito (joined by Justice Gorsuch) writes:

The repeal of the tax or penalty also provides no reason to doubt our previous conclusion about Congress's intent. While the 2017 Act repealed the tax or penalty, it did not alter the statutory finding noted above, and the 2017 Act cannot plausibly be viewed as the manifestation of a congressional intent to preserve the ACA in altered form. The 2017 Act would not have passed the House without the votes of the Members who had voted to scrap the ACA just a few months earlier, and the repeal of the tax or penalty, which they obviously found particularly offensive, was their
fallback option. They eliminated the tax or penalty and left the chips to fall as they might.

What Justice Alito does not mention is that it is also true that the 2017 Act would not have passed without the votes of Members who had voted against scrapping the ACA, but who were willing to vote to zero out the penalty. Indeed, as Ira Goldman notes, the 2017 bill would not have passed the Senate without the votes of Senators who expressly made the choice to eliminate the penalty but preserve the ACA.

Why is one group more relevant than the other? Justice Alito offers no reason for privileging the subjective intent of a minority of House members over the subjective intent of other members of Congress, let alone the substance of what Congress actually passed. Indeed, he does not consider the actions or intent of other members of Congress at all. It is as if he only cares about that portion of legislative history that supports his claim. (How any of this is consistent with Justice Gorsuch's professed commitment to textualism is another matter entirely.)

The problems with Justice Alito's analysis do not end there. Indeed, if Justice Alito meant what he wrote, then it was impossible for Congress to reform the ACA through reconciliation without recreating the same constitutional and inseverability problems he found here. Indeed, under the logic of Justice Alito's opinion, the Republican Obamacare replacement bill would have been just as vulnerable to judicial invalidation as he claimed the penalty-less ACA was. Let me explain.

Justice Alito justified his conclusion that the individual mandate, sans penalty, remains inseverable from the rest of the ACA because it is still phrased as a mandate and Congress never altered the legislative findings declaring the mandate to be an essential component of the ACA's insurance market reforms. Further, as I noted yesterday, Justice Alito maintained this position even though, as he acknowledged, the 2017 amendments to the ACA "fundamentally changed the operation of the scheme" originally enacted in the ACA.

This same logic would apply equally to the ACA replacement bill pushed by Congressional Republicans, the Better Care Reconciliation Act of 2017, i.e. the bill endorsed by those Republicans who voted to "scrap the ACA," upon whose intent Justice Alito relied. The tail end of this post by Charles Gaba helpfully explains the details.

Like the 2017 bill that passed (the Tax Cuts & Jobs Act of 2017 or TCJA), the BCRA zeroed out the tax penalty used to enforce the individual mandate. Indeed, it did so in the exact same way and using the precise same language. It did not eliminate the mandate itself because, as with the TCJA, it was to be adopted through reconciliation.  Also like the TCJA, the BCRA did not touch the legislative findings.

So, had Congress passed the BCRA (as it almost did), the unconstitutional mandate would have remained on the books, as would the legislative findings that Justice Alito found were so important. While it is true that the BCRA went on to make a range of other changes to the ACA, some of them quite significant, it is not clear why that would matter under Justice Alito's analysis. After all, the TCJA "fundamentally changed" the ACA's operation, and Justice Alito said that did not matter one bit.

Whether he intended to or not, the severability portion of Justice Alito's dissent amply demonstrates the problems with elevating the search for unexpressed legislative intent over concrete legislative action. It enables a judge to engage in a selective, result-oriented analysis of identifying which parts of the history support the judge's assumptions about what (at least some) members of Congress wanted or hoped to achieve. It is not a recipe for neutral, principled judging. In this particular case it also threatens to distort the separation of powers by unduly constraining the legislature's ability to make laws in the manner that the legislature sees fit by imposing jury-rigged rules on how Congress may, and may not, revise pre-existing statutes.

It is disappointing to see this sort of thing from Justice Alito, and surprising to see a self-avowed textualist like Justice Gorsuch go along for the ride on this particular pirate ship.

Note: All of my posts on California v. Texas (including this one) are indexed here.