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Old 12-15-2018, 01:31 PM
DSYoungEsq DSYoungEsq is offline
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The ACA Ruled Unconstitutional: What now?

Yesterday, a federal district court judge ruled the ACA ("Obamacare") was completely unconstitutional. His rationale was as follows:

The ACA individual mandate was considered unconstitutional as a mandate on action by five justices in the Sebelius decision, but allowed as a proper example of taxing authority. However, there is no longer a "tax" on the decision not to follow the mandate, thanks to the 2017 tax overhaul. Therefore, the ACA has a mandate on individual action, which was determined to be unconstitutional in Sebelius. Since the mandate is integral to the entire act, the entire act must be found unconstitutional.

Needless to say, appeals will follow.

So, assuming that this decision is upheld on appeal, what now? Specifically, what can the Republican Party do/agree to that would implement the popular portions of the ACA (carrying children to 26, not barring/penalizing prior conditions, etc.) without violating the basic economic and governmental principles of the party? What will be done to protect people who's insurance policies were being provided under the provisions of the act?
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Old 12-15-2018, 01:43 PM
etasyde etasyde is offline
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Easy: blame trump and move on without implementing anything. The only reason they'd need to implement anything is because of pressure from insurance companies to have some alternative to the growing Medicare for All movement, and quite frankly, they'd probably be happy with assurances that the Republican's would obstruct/quash that too.

What, you think Republican voters hold their representatives accountable? No. Besides, it's easy for Fox to say this was the inevitable outcome of the ACA, and it's all Obama's fault for making false promises. Or Trump's fault, but now there's no possible solution - though, I doubt Fox would be the one to throw Trump under the bus.
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Old 12-15-2018, 01:44 PM
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As I posted in the Pit thread:

As Greg Stohr, Supreme Court reporter for Bloomberg News noted on Tweeter:

"This is your occasional reminder that the five justices who voted to uphold Obamacare in 2012 are still on the Supreme Court."

Still, this is a good moment to note that the do nothing Republicans are on notice that they have to do something about not just making things worse and work with Democrats towards a better replacement of the ACA...

Unless the Republicans prefer to be voted out of office, I'm ok with any of those results.
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Old 12-15-2018, 01:51 PM
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1) Millions of people lose healthcare, uninsured rate jumps to near 20% and voters are looking for someone to blame.

2) Proposals are made to restore mandate or otherwise fix problem but fail due to split between senate, house, and whitehouse.

3) Trump and Republicans attempt to blame failure on House Democrats despite proposing no workable plan themselves.

4a) Voters in 2020 blame Republicans, leading to massive blue wave and either the restoration of the mandate or Medicare for all in 2021-2022
4b) Voters 2020 blame Democrats, meaning the reelection Trump and restoration of Republican majority in both houses, four years go by and then see 4a) except the timing is 2025-2026.


Most likely scenario IMHO is that this is overturned on appeal. The fact that the ACA won't work without the mandate is a policy issue, not a legal issue. It is theoretically possible that the markets will stabilize even without it. So I don't see how if follows that removing that section makes the whole thing unconstitutional.
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Old 12-15-2018, 01:59 PM
etasyde etasyde is offline
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Originally Posted by Buck Godot View Post
Most likely scenario IMHO is that this is overturned on appeal.
Yes, but you're fighting the hypothetical.

I can't speak for the OP, but I read this as asking "what is the suitable alternative the Republicans can put forward?" rather than "what is going to happen next?"

And I say, the Republicans don't need an alternative. All they have to do is successfully pin this on Trump, and when everything else blows up on him as well, this can be swept under the rug. A lot of the terrible ideas espoused by the Republicans will be white-washed away when they finally dump Trump. "We didn't want this. We believed him when he said repeal and replace, just like you! Trump sure was a con man. Vote for a real Republican this time, and we'll fix this mess... eventually..."
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Old 12-15-2018, 02:20 PM
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There's a significant change in the equation now, though. The old saws -- death panels, etc. -- no longer work. President Obama made a big bet that if he could manage to give Americans even a taste of something approximating universal coverage, they'd never go back. I think he was right.

Despite every perversion of Obamacare (elimination of the public option, overturning the individual mandate, limited participation by states in the Medicaid expansion, messing with the Marketplace website and limiting the open enrollment period to make it harder for Americans to sign up, etc.), Republicans have not managed to kill it. While it's not exactly popular, a majority of Americans now recognize that the reason it's not working is down to Republican sabotage. Moreover, they realize that Republicans have no intention of offering an alternative.

So there's no going back, and Obama wins.

For these reasons, I agree with points 1 - 4a made by Buck Godot. I don't see how a majority of Americans ever blame Democrats. Even establishment Republicans such as Richard Painter are calling for Trump's resignation now. Two years of Dems bagging on Republicans -- and they will use health care as a primary cudgel -- won't help their cause. Of course, I've been wrong before.

Also agree that the most likely scenario is that this ruling is overturned on appeal. Roberts will view this as an easy opportunity to rehabilitate the image of the SCOTUS somewhat at very little cost, since Congress will have to make a fix one way or the other sooner or later.

ETA: I guess I'm fighting the hypothetical, too, as etasyde points out. If the OP is looking for a suitable alternative to be put out by Republicans, my guess is it's going to look exactly like health care did before the ACA. Meaning nothing. Some may find that suitable, but I don't believe the majority of Americans will.

Last edited by Aspenglow; 12-15-2018 at 02:25 PM.
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Old 12-15-2018, 02:44 PM
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Originally Posted by etasyde View Post
Yes, but you're fighting the hypothetical.

I can't speak for the OP, but I read this as asking "what is the suitable alternative the Republicans can put forward?" rather than "what is going to happen next?"

And I say, the Republicans don't need an alternative. All they have to do is successfully pin this on Trump, and when everything else blows up on him as well, this can be swept under the rug.
That could had worked, when the ACA was unpopular; after years of finding what the ACA really was, most Americans now are in favor of the law, that BTW was not missed by the Republicans that ran in the last election as defenders of health care. (Not many swallowed that late pathetic pandering and most of the people voted for more in tune representatives to the House.)
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Originally Posted by etasyde View Post
A lot of the terrible ideas espoused by the Republicans will be white-washed away when they finally dump Trump. "We didn't want this. We believed him when he said repeal and replace, just like you! Trump sure was a con man. Vote for a real Republican this time, and we'll fix this mess... eventually..."
As I noted, most Americans will not be amused now. So, in that case, voting the Republican rascals out it is.

Last edited by GIGObuster; 12-15-2018 at 02:47 PM.
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Old 12-15-2018, 03:13 PM
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Originally Posted by Buck Godot View Post
1) Millions of people lose healthcare, uninsured rate jumps to near 20% and voters are looking for someone to blame.

2) Proposals are made to restore mandate or otherwise fix problem but fail due to split between senate, house, and whitehouse.

3) Trump and Republicans attempt to blame failure on House Democrats despite proposing no workable plan themselves.

4a) Voters in 2020 blame Republicans, leading to massive blue wave and either the restoration of the mandate or Medicare for all in 2021-2022
4b) Voters 2020 blame Democrats, meaning the reelection Trump and restoration of Republican majority in both houses, four years go by and then see 4a) except the timing is 2025-2026.


Most likely scenario IMHO is that this is overturned on appeal. The fact that the ACA won't work without the mandate is a policy issue, not a legal issue. It is theoretically possible that the markets will stabilize even without it. So I don't see how if follows that removing that section makes the whole thing unconstitutional.
The fact that the mandate was found integral to the Act as a whole goes to severability, which is very much a legal issue. And the court explained why that renders the whole statute unconstitutional under that doctrine.

Congress could always amend the tax to a nominal amount like $1 or even 1˘ which might survive Constitutional scrutiny and have pretty much the same effect. Seems like the best option if the ruling is somehow upheld but...

The decision being overruled on severability grounds I think is far more likely than a higher court finding that a tax of $0 is still a tax Constitutionally speaking
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Old 12-15-2018, 04:04 PM
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It is my understanding that severability is a judgement as to whether Congress views two part of the law inextricably linked. So how can the court hold that the mandate "tax" is not severable when Congress voted it out thereby severing it. That has to be Congress' opinion, right?

Last edited by OldGuy; 12-15-2018 at 04:05 PM.
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Old 12-15-2018, 04:41 PM
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It is my understanding that severability is a judgement as to whether Congress views two part of the law inextricably linked. So how can the court hold that the mandate "tax" is not severable when Congress voted it out thereby severing it. That has to be Congress' opinion, right?
Congress did not vote out the individual mandate per se, they just eliminated the penalty. Without the penalty, the mandate is basically inert, but it is still there in the code. It is pretty critical to making the ACA operate as intended, but to say that castrating the mandate means all the positive aspects of the law – the exchanges and subsidies and insurance regs – should then be nullified seems specious at best.
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Old 12-15-2018, 06:09 PM
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Point of fact, please.

A NYT article earlier today stated, "The Trump administration immediately said — despite the president’s gleeful tweets hailing the decision — that it would continue to enforce the law until the appeals process plays out".

This statement implies that the Executive Branch could have nixed the Act upon the judge's ruling had it desired. Is that right? Or when a 'lower' Federal Court declares a law unconstitutional, must the law remain in effect until higher courts have reviewed it? Maybe the WH feared engendering widespread outrage if it had taken the former approach?
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Old 12-15-2018, 07:02 PM
DSYoungEsq DSYoungEsq is offline
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Originally Posted by KarlGauss View Post
A NYT article earlier today stated, "The Trump administration immediately said — despite the president’s gleeful tweets hailing the decision — that it would continue to enforce the law until the appeals process plays out".

This statement implies that the Executive Branch could have nixed the Act upon the judge's ruling had it desired. Is that right? Or when a 'lower' Federal Court declares a law unconstitutional, must the law remain in effect until higher courts have reviewed it? Maybe the WH feared engendering widespread outrage if it had taken the former approach?
The ruling, once it is "final", applies to the area within which it has effect. In this case, the Northern District of Texas (Dallas and north). Other district courts are free to rule in a different way.

The losing party can always ask the relevant appellate court (in this case, the 5th District Court of Appeal) for a stay of the effect of the ruling, pending the result of the appeal. How likely that is to be granted is often a function of how likely the appellate court thinks the appeal's success is. But if there would be a substantial effect upon the insurance marketplace from having temporary uncertainty, the Court of Appeal might stay the ruling anyway.

My supposition is that the WH doesn't want to provoke any inadvertent action that undercuts the decision, so they will let the process work out without creating any more chaos.
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Old 12-15-2018, 07:18 PM
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Congress did not repeal the ACA when they could have. They lowered the mandate penalty to zero. So if the two laws together are Unconstitutional, why is it that the ACA is found Unconstitutional rather than the repeal of the mandate "tax"? I thought courts were supposed to try to implement the will of Congress if possible. Obviously (in a legal sense) Congress did not wish to repeal the ACA.
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Old 12-15-2018, 07:19 PM
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My supposition is that the WH doesn't want to provoke any inadvertent action that undercuts the decision, so they will let the process work out without creating any more chaos.
Translation: Three staffers are sitting on Trump while a fourth holds his phone juuuust out of reach.

Last edited by running coach; 12-15-2018 at 07:19 PM.
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Old 12-15-2018, 07:38 PM
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The ruling, once it is "final", applies to the area within which it has effect. In this case, the Northern District of Texas (Dallas and north). Other district courts are free to rule in a different way.

The losing party can always ask the relevant appellate court (in this case, the 5th District Court of Appeal) for a stay of the effect of the ruling, pending the result of the appeal.
Argh, this is confusing. The N.Texas District Court made the ruling, which means the appeal will not be direct to a District Court but to the next level up, which is the Fifth Circuit (of TX/LA/MS). I think the level above Circuit is SCotUS.

My question would be, if the 5th reverses the ruling and SCotUS rejects (refuses to hear) the case, would the Circuit Court ruling take on national application (by precedent), or would the case have to be retried in each Circuit?
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Old 12-15-2018, 08:01 PM
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Congress did not repeal the ACA when they could have. They lowered the mandate penalty to zero. So if the two laws together are Unconstitutional, why is it that the ACA is found Unconstitutional rather than the repeal of the mandate "tax"? I thought courts were supposed to try to implement the will of Congress if possible. Obviously (in a legal sense) Congress did not wish to repeal the ACA.
The tax cut eliminating the "shared responsibility payment" of the ACA was a clear act of Congress passed by the legislature and signed into law by the President. No way in hell a court rules such an act unconstitutional. Laying and collecting taxes is a clear power of Congress explicitly laid out in the Constitution.

The decision of judge O'Connor in the Texas case explicitly examines the difference between deferring enforcement of a tax and eliminating a tax. Congress chose to eliminate the tax in question.

Had Congress reduced the tax to a nominal peppercorn rate of $1 or even 1˘ as DirkHardly suggested then perhaps O'Connor's decision would have been different. The incoming Congress could make such a change if they can muster enough votes and gain the president's signature (or have enough votes to override a veto).

It was SCOTUS in NFIB v Sebelius that decided the shared responsibility payment provision in the PPACA is a tax.
Quote:
Originally Posted by judge O'Connor quoting from NFIB v Sebelius
The Supreme Court’s conclusion that § 5000A constituted a constitutional exercise of Congress’s Tax Power turned on several factors. First, the shared-responsibility payment “is paid into the Treasury by taxpayers when they file their tax returns.” (cleaned up). Second, the amount owed under the ACA “is determined by such familiar factors as taxable income, number of dependents, and joint filing status.” And “[t]he requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which . . . must assess and collect it ‘in the same manner as taxes.’” Third and finally, the shared-responsibility payment “yields the essential feature of any tax: It produces at least some revenue for the Government.” (emphasis added). On these bases, the Supreme Court held, “The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.”
<citations omitted by me>

The ACA without a shared responsibility payment provision no longer acts as a tax. Nothing is paid into the Treasury when taxes are filed, the amount owed is not related to income or filing status, and it does not raise any income for government. As such, it's no longer a tax. Roberts and the 4 dissenters in NFIB all agreed that the Individual mandate is unconstitutional under the Interstate Commerce Clause as government can only regulate economic activity, not inactivity.
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Old 12-15-2018, 08:18 PM
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Argh, this is confusing. The N.Texas District Court made the ruling, which means the appeal will not be direct to a District Court but to the next level up, which is the Fifth Circuit (of TX/LA/MS). I think the level above Circuit is SCotUS.

My question would be, if the 5th reverses the ruling and SCotUS rejects (refuses to hear) the case, would the Circuit Court ruling take on national application (by precedent), or would the case have to be retried in each Circuit?
I goes from Federal District Court to a Federal Appeals Court and then to SCOTUS. On rare occasions SCOTUS can take a case that bypasses the Appeals Court.

If an Appeals Court affirms the District Court's decision and SCOTUS declines to hear an appeal then the District Court's ruling takes effect throughout that Appeals Court's circuit (TX/LA/MS in this case). However a recent trend has had some Federal District Court judges issuing nationwide injunctions asserting that their rulings must have nationwide effect (see various Trump Travel ban decisions in District Courts throughout the 9th Circuit Court of Appeals area). O'Connor did not explicitly assert an nationwide injunction in his decision in the Texas case.

If the 5th Circuit reverses O'Connor's District Court ruling and SCOTUS declines to hear an appeal then the ACA is in effect nationwide just as before the Texas case.

Whether the 5th Circuit affirms or overturns O'Connor's decision from the District Court, a similar case could be filed in a different District Court elsewhere in the nation. It might end up with the same ruling or might end up differently. There is no need to have a case in every single District Court nationwide, just one District Court within the jurisdiction of a different Federal Court of Appeals is sufficient.

If, after the Appeals Court in a different circuit deals with the matter there are different outcomes from the 5th Circuit Court of Appeals that is referred to as a circuit split. SCOTUS is more likely to take up an appeal when there is a circuit split.
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Old 12-15-2018, 08:35 PM
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It is my understanding that severability is a judgement as to whether Congress views two part of the law inextricably linked. So how can the court hold that the mandate "tax" is not severable when Congress voted it out thereby severing it. That has to be Congress' opinion, right?
It doesn't have to be Congress' opinion, but it helps.

The ACA had a provision for mandatory Medicaid Expansion. The text of the ACA included a provision that if this Medicaid Expansion should be deemed unlawful (unconstitutional) then Congress wants the Medicaid Expansion to be severed.

The ruling in NFIB v Sebelius that upheld most of the ACA did find the mandatory Medicaid Expansion unconstitutional. Five votes - Roberts and the four conservative justices came to that conclusion.

Then the issue was what should the remedy be? Roberts and the four liberal justices agreed that the Medicaid Expansion could be severed as the text of the law stated. So they made the Medicaid Expansion optional, not mandatory, on the part of the states. Sure this created problems, but it is up to legislature to write laws, not judges.

So obviously Congress knew how to put a severability provision into a law. But they did not do so with regards to the Individual Mandate. In that case a court must decide what remedy is appropriate should the Individual Mandate be deemed unconstitutional. In doing so the court must decide if the Individual Mandate is severable or not.

O'Connor reasoned that the overall intent of the ACA is plainly stated throughout the law - to expand insurance coverage and lower premiums. Without an Individual Mandate insurance companies would be required to accept all applicants, even those with pre-existing conditions, but not be able to spread the risk by counting on healthy people signing up.

When insurance regulatory plans lacking an Individual Mandate had been tried before in the states it resulted in skyrocketing insurance rates which cause healthy people to drop out. This caused premiums to rise further causing a death spiral with higher overall premiums and fewer people insured. This is precisely what the ACA intended to avoid.

O'Connor reasoned that severing the Individual Mandate but otherwise leaving the ACA intact would go against legislator's stated intent in passing the ACA. As such he ruled that the Individual Mandate was not severable and the entire ACA was unconstitutional.
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Old 12-15-2018, 08:43 PM
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nm i answered my own question

Last edited by Snowboarder Bo; 12-15-2018 at 08:44 PM.
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Old 12-15-2018, 08:49 PM
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More directly to the spirit of the thread...

Going forward Congress is going to hear an outcry to fix this, now. Perhaps as DirkHandly suggested a mere peppercorn penalty could be tolerable for all but the most hardened Republicans. A key questions is if Democrats would go along with such a simple fix for now. Or perhaps the Dems will hold out for a Medicare-for-all system.

But a more serious issue is if the market can tolerate an insignificant penalty for not purchasing insurance without a significant selection bias problem. After all the purpose of the Shared Responsibility Payment was to encourage healthy people to buy insurance.
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Old 12-15-2018, 09:13 PM
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The ACA was also passed by Congress, so the idea that this new change was passed doesn't make sense to offset that.

What finding this unconstitutional does is make it where you can repeal a law without actually repealing said law. Just alter it to make it unconstitutional, and let the court repeal it. That's not a good thing.

It should not be possible for a law to become unconstitutional due to further laws. The law that changed the law to violate the constitution should be the one that is declared unconstitutional.

If Congress's intent is to repeal a law, they should have to repeal the law.

Imagine this is other scenarios. Imagine using a law to attach a limit to abortion being attached to previously existing Medicaid for All bill. Would you think the Medicaid for All bill should be declared unconstitutional, or the law that tried to add abortion limits?

The elimination of the tax is what should be severable.

Last edited by BigT; 12-15-2018 at 09:17 PM.
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Old 12-15-2018, 09:34 PM
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...
The elimination of the tax is what should be severable.
Congress clearly and unambiguously has the power to lay and collect taxes.

Quote:
Originally Posted by Article I, Section 8, Clause 1 of the US Constitution
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
So what would be the grounds that a court could find alteration of a tax rate to be unconstitutional so long as it is uniform throughout the United States and is not a capitation or direct tax prohibited by Article I, Section 9, Clause 4 of the Constitution?
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Old 12-15-2018, 10:26 PM
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Congress clearly and unambiguously has the power to lay and collect taxes.

So what would be the grounds that a court could find alteration of a tax rate to be unconstitutional so long as it is uniform throughout the United States and is not a capitation or direct tax prohibited by Article I, Section 9, Clause 4 of the Constitution?
Amendment XVIThe Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
Article I § 9 (4) has been superseded. Still, it is not obvious to me how the nullification of the Individual Mandate results in the ACA becoming unconstitutional. There does not seem to be any part of the Constitution that requires USCode to be of a particular form, workable, or even fair.
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Old 12-15-2018, 10:38 PM
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So what would be the grounds that a court could find alteration of a tax rate to be unconstitutional so long as it is uniform throughout the United States and is not a capitation or direct tax prohibited by Article I, Section 9, Clause 4 of the Constitution?
By this judge's reasoning, the mandate after the amendment is no longer a tax, and thus unconstitutional. If the mandate is still a tax then it clearly is constitutional, and thus the ACA must stand. If the mandate is no longer a tax and is now unconstitutional, then shouldn't the amendment be overturned? As BigT says, it would be ridiculous if Congress could repeal a law by amending it to be unconstitutional, especially when that amendment is passed through a reconciliation process that cannot repeal the law directly.

ETA: My opinion is that the judge's reasoning is invalid. The mandate has no effect after having been amended, and thus it's ridiculous to say that it's unconstitutional. But I can see an argument for overturning the amendment if you want to get really, really picky.

Last edited by Rysto; 12-15-2018 at 10:41 PM.
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Old 12-16-2018, 09:05 AM
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More directly to the spirit of the thread...

Going forward Congress is going to hear an outcry to fix this, now. Perhaps as DirkHandly suggested a mere peppercorn penalty could be tolerable for all but the most hardened Republicans. A key questions is if Democrats would go along with such a simple fix for now. Or perhaps the Dems will hold out for a Medicare-for-all system.

But a more serious issue is if the market can tolerate an insignificant penalty for not purchasing insurance without a significant selection bias problem. After all the purpose of the Shared Responsibility Payment was to encourage healthy people to buy insurance.
I've never understood the angst related to the individual mandate. By law, emergency rooms must treat anyone that walks in the door, regardless of their insurance situation. I think the "penalty" is fair as a compensation to society for free-riding on a system that must treat you if you have a medical emergency. It's not destroying people's freedom to make them pay a small sum in return for this ER promise.

I think this goes into the higher courts, and gets overturned, and we keep more or less a status quo, with states incrementally adopting Medicaid Expansion and the like. I don't ever see Republicans doing anything to try to help or improve the ACA via any technical fix legislation. The old way of doing things is dead..

On the small chance this doesn't get overturned, I think the Pubs will likely let it fade away/collapse. Then, the next time the Dems are in power, they will jam Medicare-for-All through the congress & White House. It might be a while, but I now think that this lawsuit has opened the door for more of a single-payer push than previously possible.
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Old 12-16-2018, 09:44 AM
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I don't know about the legal questions, but to answer the OP:

The Republicans will blame this on Democrats and do nothing about it in the Senate. Then, they will claim that they are the defenders of your healthcare, just like they did during the last election, and their base will believe them and re-elect them to whatever House seats they have that are locked in and also re-elect them to the Senate. Similarly, they hilariously claimed that they were the defenders of Medicare.

Trump has been talking about overturning Obamacare since before he was elected, so there's zero chance he would sign anything that saves it. Republicans have been talking about overturning it since it was passed -- remember the 50 or 60 votes in the House? So, there's zero chance the Senate would vote for anything that saves it. They passed the very provision that the judge ruled to kill it, and the president is doing whatever he can to sabotage it already.

Fox News will say that the Democrats and Obama have sabotaged your healthcare and refused to expand Medicaid, which is why Grandma can't stay in a nursing home anymore, and their viewers will believe it. They may even hold signs that say to keep your government hands off their Medicare/Medicaid.

The best way forward would be not to appeal this -- that way, it just affects a small area of the country. If it goes to a conservative appeals court, it will be upheld and affect several states. If it goes to SCOTUS, it could kill Obamacare nationwide.

If it goes all that way, then we end up with the status quo ante -- millions lose their coverage, Medicaid expansion gets reversed (why that would be inextricably tied to the mandate is beyond me), kids fall off their parents' policies again.

The Dems would be crazy to agree to some Obamacare-lite that just allows the good stuff that wealthier people like but leaves millions of poor people screwed. Blue states might try and keep parts of it alive by offering an in-state public option. West Virginia, whose economy is much more dependent on health care than coal, would once again be screwed by their own voting habits.
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Old 12-16-2018, 10:11 AM
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Originally Posted by RitterSport View Post
I don't know about the legal questions, but to answer the OP:

The Republicans will blame this on Democrats and do nothing about it in the Senate. Then, they will claim that they are the defenders of your healthcare, just like they did during the last election, and their base will believe them and re-elect them to whatever House seats they have that are locked in and also re-elect them to the Senate. Similarly, they hilariously claimed that they were the defenders of Medicare.

Trump has been talking about overturning Obamacare since before he was elected, so there's zero chance he would sign anything that saves it. Republicans have been talking about overturning it since it was passed -- remember the 50 or 60 votes in the House? So, there's zero chance the Senate would vote for anything that saves it. They passed the very provision that the judge ruled to kill it, and the president is doing whatever he can to sabotage it already.

Fox News will say that the Democrats and Obama have sabotaged your healthcare and refused to expand Medicaid, which is why Grandma can't stay in a nursing home anymore, and their viewers will believe it. They may even hold signs that say to keep your government hands off their Medicare/Medicaid.

The best way forward would be not to appeal this -- that way, it just affects a small area of the country. If it goes to a conservative appeals court, it will be upheld and affect several states. If it goes to SCOTUS, it could kill Obamacare nationwide.

If it goes all that way, then we end up with the status quo ante -- millions lose their coverage, Medicaid expansion gets reversed (why that would be inextricably tied to the mandate is beyond me), kids fall off their parents' policies again.

The Dems would be crazy to agree to some Obamacare-lite that just allows the good stuff that wealthier people like but leaves millions of poor people screwed. Blue states might try and keep parts of it alive by offering an in-state public option. West Virginia, whose economy is much more dependent on health care than coal, would once again be screwed by their own voting habits.
Good post, although I'm not sure if I agree on your view of not appealing it. In any event, I think you laid out fairly bluntly the Republican strategy, which is to lie about what they actually want, dreaming up back-room ways to "repeal" things, and blame it on the other side, when it's what they wanted all along.

The part that you didn't include, which I'm now sure will happen if this doesn't get overturned - The Dems will definitely introduce "Medicare for All" type legislation the next time they are in power. The left was building up the case for this in any event. But this decision could be one of the major tipping points that turns the entire Democratic party and a critical % of independents & moderates. I personally don't want Medicare for All. But I now see how something like this would sway the powers that be in that direction.
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Old 12-16-2018, 11:21 AM
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Good post, although I'm not sure if I agree on your view of not appealing it. In any event, I think you laid out fairly bluntly the Republican strategy, which is to lie about what they actually want, dreaming up back-room ways to "repeal" things, and blame it on the other side, when it's what they wanted all along.

The part that you didn't include, which I'm now sure will happen if this doesn't get overturned - The Dems will definitely introduce "Medicare for All" type legislation the next time they are in power. The left was building up the case for this in any event. But this decision could be one of the major tipping points that turns the entire Democratic party and a critical % of independents & moderates. I personally don't want Medicare for All. But I now see how something like this would sway the powers that be in that direction.
I'm not sure that Medicare for all is a political winner. There are lots of middle class people who get their insurance through work or their union and are perfectly happy with it. I'm happy with my insurance. If Medicare for all meant giving that up, it would be a tough sell. I know it works elsewhere, but it would be a big change and doctors, insurance companies, and pharmaceutical companies would likely be against it and that's a strong set of lobbyists.

OP, sorry for the hijack. That's all I'll say on this.
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Old 12-16-2018, 12:15 PM
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I've never understood the angst related to the individual mandate.
If there's no Medicare-for-All, then rich people will buy good health insurance and get proper healthcare. I'm not talking about emergency care, but getting checkups, and treatment for any problems doctors noticed.

Poor people won't be able to afford these things, and the taxpayer won't be paying for it. Many wealthier people feel their taxes are being used to support poor people, who are often derided as being irresponsible, lazy, undeserving of government support, and so forth. Wealthier Republican treat this as a form of welfare, a pretty effective technique in getting poorer Republican to oppose it.

So in short, the Republican message is "deserving, highly-paid working people are paying high taxes to cover the health subsidies of 'undeserving' people".

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On the small chance this doesn't get overturned, I think the Pubs will likely let it fade away/collapse. Then, the next time the Dems are in power, they will jam Medicare-for-All through the congress & White House. It might be a while, but I now think that this lawsuit has opened the door for more of a single-payer push than previously possible.
I think this greatly increases the chances that the Democrats win the House and Senate in 2020. It would take a hefty supermajority to pass a proper health care bill.
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Old 12-16-2018, 01:26 PM
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I'm not sure that Medicare for all is a political winner. There are lots of middle class people who get their insurance through work or their union and are perfectly happy with it. I'm happy with my insurance. If Medicare for all meant giving that up, it would be a tough sell.
How about if they found it it's cheaper?
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Old 12-16-2018, 01:39 PM
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Amendment XVIThe Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
Article I § 9 (4) has been superseded. Still, it is not obvious to me how the nullification of the Individual Mandate results in the ACA becoming unconstitutional. There does not seem to be any part of the Constitution that requires USCode to be of a particular form, workable, or even fair.
That does not "supersede" the original clause. It merely adds to the original clause the clarification that income taxes don't have to be apportioned among the states. It's irrelevant to the present discussion.

As for the argument being offered by the judge regarding constitutionality, here's what is being said. I cannot vouch for the rationale, since I haven't studied it in depth, but on the face of it, it's not clearly wrong:

Congress wanted to control how health care was insured. Normally, this would be a valid exercise of the federal control of interstate commerce. BUT, Congress wanted to force people to purchase the resulting product, because if some people didn't, the whole concept of how the system would work became not viable. So Congress mandated that individuals purchase coverage if they were not already covered by some other purchaser. To ensure that people would do this, they implemented a tax on the decision of an individual NOT to do it.

The Supreme Court had the basic law in front of it in Sebelius. Five justices agreed that Congress had no ability to enact the law as it existed under the power of the interstate commerce clause, because that would mean Congress has the right to force activity in the market, and that's not allowed. But, five justices (only one of whom was in the first group I mentioned) said that Congress was allowed to enact a very complicated tax, which taxes people, unless they participate in the new insurance scheme, and that's an acceptable form of taxation under the general power of Congress to lay taxes.

Congress has since removed the tax on non-participation. But, Congress did NOT remove the mandate ON participation. The judge asserts that the mandate was held to be unconstitutional, without the taxation aspect, in Sebelius, by that first group of five justices I mentioned. In other words, having reduced the ACA to a simple attempt at exercising the power over interstate commerce, the act is no longer able to be saved from the conclusion that Congress cannot force individuals to participate in markets.

The judge then determined that the individual mandate was not severable. To support this determination, he noted that there were other provisions of the ACA that DID have specific statements of severability (for example, the requirement that states participate in the expansion of Medicaid). Since some provisions were given severability clauses, but the individual mandate was not, the presumption is that Congress did not want that aspect to be severable. And since the individual mandate is so integral to the whole scheme, the presumption of non-severability is not overcome. Thus, the whole scheme must be considered unconstitutional.

Obviously, other conclusions can (and will) be asserted. However, this is not facially incorrect reasoning.
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Old 12-16-2018, 01:41 PM
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How about if they found it it's cheaper?
That depends on what they are getting for their "cheaper" health care. Making those comparisons is fraught with complications, since there are so many things that can vary.
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Old 12-16-2018, 03:35 PM
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That does not "supersede" the original clause. It merely adds to the original clause the clarification that income taxes don't have to be apportioned among the states. It's irrelevant to the present discussion.

As for the argument being offered by the judge regarding constitutionality, here's what is being said. I cannot vouch for the rationale, since I haven't studied it in depth, but on the face of it, it's not clearly wrong:

Congress wanted to control how health care was insured. Normally, this would be a valid exercise of the federal control of interstate commerce. BUT, Congress wanted to force people to purchase the resulting product, because if some people didn't, the whole concept of how the system would work became not viable. So Congress mandated that individuals purchase coverage if they were not already covered by some other purchaser. To ensure that people would do this, they implemented a tax on the decision of an individual NOT to do it.

The Supreme Court had the basic law in front of it in Sebelius. Five justices agreed that Congress had no ability to enact the law as it existed under the power of the interstate commerce clause, because that would mean Congress has the right to force activity in the market, and that's not allowed. But, five justices (only one of whom was in the first group I mentioned) said that Congress was allowed to enact a very complicated tax, which taxes people, unless they participate in the new insurance scheme, and that's an acceptable form of taxation under the general power of Congress to lay taxes.

Congress has since removed the tax on non-participation. But, Congress did NOT remove the mandate ON participation. The judge asserts that the mandate was held to be unconstitutional, without the taxation aspect, in Sebelius, by that first group of five justices I mentioned. In other words, having reduced the ACA to a simple attempt at exercising the power over interstate commerce, the act is no longer able to be saved from the conclusion that Congress cannot force individuals to participate in markets.

The judge then determined that the individual mandate was not severable. To support this determination, he noted that there were other provisions of the ACA that DID have specific statements of severability (for example, the requirement that states participate in the expansion of Medicaid). Since some provisions were given severability clauses, but the individual mandate was not, the presumption is that Congress did not want that aspect to be severable. And since the individual mandate is so integral to the whole scheme, the presumption of non-severability is not overcome. Thus, the whole scheme must be considered unconstitutional.

Obviously, other conclusions can (and will) be asserted. However, this is not facially incorrect reasoning.
Excellent objective summary. What gets me is some of the opponents of this decision, even some legal scholars, have characterized the severability part of the decision as so far beyond the norm as to be "insanity." According to them the court completely failed to recognize what they claim is a strong default position in favor of severability. Of course, as you and the court point out, the presence of severability clauses elsewhere in the ACA but not in this instance rebuts that claim. Hell, the mere existence of severability clauses rebuts that claim because they would be an unnecessary redundancy
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Old 12-16-2018, 03:51 PM
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I'm not sure that Medicare for all is a political winner.
Neither was the ACA, but sometimes to do good one has to sacrifice political power. Republicans of today lack that emphatic capacity.

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Originally Posted by RitterSport View Post
There are lots of middle class people who get their insurance through work or their union and are perfectly happy with it. I'm happy with my insurance.
And many were happy (even new home owners) to let the housing market go to pot a decade ago. The current "happy" conditions in work provided insurance actually does mean that for many workplaces there are less people than needed because health care costs are increasing for the job providers. This is unsustainable. Just like the housing market of ten years ago.

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If Medicare for all meant giving that up, it would be a tough sell. I know it works elsewhere, but it would be a big change and doctors, insurance companies, and pharmaceutical companies would likely be against it and that's a strong set of lobbyists.

OP, sorry for the hijack. That's all I'll say on this.
What I foresee (if Republicans still think this will be a winner for them, they have another thing coming at them if the ACA is ruled Unconstitutional) is, if not a mild collapse of the Republicans thanks to the lack of health care for many, then a total collapse thanks to the eventual catastrophic bursting of the health care bubble.
  #35  
Old 12-16-2018, 04:30 PM
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Congress has since removed the tax on non-participation. But, Congress did NOT remove the mandate ON participation.
True, but it's a mandate in name only. There's no tax, no "penalty", no jailtime. Just an empty MINO. In substance, it's no longer a mandate. That's the reality of what Republicans did last year in their tax law.
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Old 12-16-2018, 05:34 PM
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O'Connor reasoned that the overall intent of the ACA is plainly stated throughout the law - to expand insurance coverage and lower premiums. Without an Individual Mandate insurance companies would be required to accept all applicants, even those with pre-existing conditions, but not be able to spread the risk by counting on healthy people signing up.

When insurance regulatory plans lacking an Individual Mandate had been tried before in the states it resulted in skyrocketing insurance rates which cause healthy people to drop out. This caused premiums to rise further causing a death spiral with higher overall premiums and fewer people insured. This is precisely what the ACA intended to avoid.

O'Connor reasoned that severing the Individual Mandate but otherwise leaving the ACA intact would go against legislator's stated intent in passing the ACA. As such he ruled that the Individual Mandate was not severable and the entire ACA was unconstitutional.
As much as I dislike the ACA, this legal reasoning is questionable.

First, we agree that the individual mandate is unconstitutional except as it survives as a tax, correct? The rest of the law was indisputably (except maybe by Thomas and/or Gorsuch) constitutional.

Congress repealed the tax on the individual mandate, but left the rest of the law intact. So, how does the Judge then say that Congress could not have intended the law to survive without the tax incentives/penalties provided by the individual mandate as that is exactly what it has done?

It may be a terrible, terrible law without the individual mandate (or even with it, but I digress) but the law stands as Congress intended. As such, it cannot be an unintended consequence of a court striking down certain provisions. Am I missing something?
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Old 12-16-2018, 05:42 PM
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Maybe I could state it more simply:

If Congress passes a law with provisions A-E, and then A is found to be unconstitutional, then the courts conduct a severability analysis to see if B-E survive based upon Congressional intent.

But if Congress passes a law with provisions A-E, and A is found to be constitutional only on certain conditions, but then later Congress repeals A, why is there a need to do a severability analysis on B-E? Condition A is gone, and B-E stand on their own.
  #38  
Old 12-16-2018, 09:34 PM
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I understand the argument. O'Connor delved into (pdf of decision) whether the intent of the 2010 Congress or the 2017 Congress should be controlling.

Quote:
Originally Posted by From O'Connor's decision pg 34-35
...[T]he parties dispute which Congress’s intent controls—the 2010 Congress that passed the ACA or the 2017 Congress that passed the TCJA. [Plaintiffs] ... (arguing the intent of the 2010 Congress controls); Intervenor Def[endant]s (contending the intent of the 2017 Congress controls). ... This is a bit of a red herring because, applying the relevant standards, the Court finds both Congresses manifested the same intent: The Individual Mandate is inseverable from the entire ACA.
I've already summarized the view that the 2010 Congress intended the Individual Mandate to be inseverable from the rest of the PPACA. O'Connor analyzes the intent of the 2017 Congress and concludes that they, too, intended the Individual Mandate to be inseverable.

In his analysis of the intent of the 2017 Congress O'Connor emphasizes that the Individual Mandate and the Shared Responsibility Payment (the tax) are two different things. O'Connor has already decided that the Individual Mandate is unconstitutional The remaining question is only on severability.

The 2017 Congress did not repeal the Individual Mandate. O'Connor infers that this is because the 2017 Congress recognized that the mandate is an essential part of the PPACA and the PPACA would not work without it.

Quote:
Originally Posted by From O'Connor's decision pg 52-55
But consider what Congress did not do in 2017—or ever. First and foremost, it did not repeal the Individual Mandate. As the Court described in great detail, ... the shared-responsibility payment is not the Individual Mandate. That matters. The Individual Mandate, not the shared-responsibility payment, is “essential” to the ACA.
...
[T]he 2017 Congress, like the 2010 Congress, knew that provision is essential to the ACA. Intervenor Defendants’ argument that the 2017 Congress manifested an intent of severability is therefore unavailing. Indeed, one would have to take the incorrect view that the shared-responsibility payment is the Individual Mandate to accept the argument that the 2017 Congress, by eliminating the payment, intended to sever the Individual Mandate.
ISTM that a finding that the 2017 Congress intended to introduce severability when they did not do so explicitly is a dicey proposition.

In 2010 Congress passed a law with provisions A-E. In 2017 Congress eliminated provision A. Now the court finds provisions B-E cannot stand alone because SCOTUS has already decided that provision B is unconstitutional in the absence of provision A.

So the question is whether provisions C-E can stand alone and would the intent of Congress be preserved by leaving provisions C-E intact? O'Connor finds that the ACA without the Individual Mandate would not serve to expand coverage and lower premiums as the intent of the law explicitly states.
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Old 12-17-2018, 09:34 AM
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As much as I dislike the ACA, this legal reasoning is questionable.

First, we agree that the individual mandate is unconstitutional except as it survives as a tax, correct? The rest of the law was indisputably (except maybe by Thomas and/or Gorsuch) constitutional.

Congress repealed the tax on the individual mandate, but left the rest of the law intact. So, how does the Judge then say that Congress could not have intended the law to survive without the tax incentives/penalties provided by the individual mandate as that is exactly what it has done?

It may be a terrible, terrible law without the individual mandate (or even with it, but I digress) but the law stands as Congress intended. As such, it cannot be an unintended consequence of a court striking down certain provisions. Am I missing something?
Whether or not they rule it is unconstitutional, the ACA is effectively dead in the water. The people they relied on to sign up, most haven't and the ones that did that wouldn't have without the mandate, will just go without. But without the young healthy crowd signing up, it is in a world of hurt.
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Old 12-17-2018, 09:45 AM
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The numbers contradict you.

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Originally Posted by DSYoung Esq
That depends on what they are getting for their "cheaper" health care. Making those comparisons is fraught with complications, since there are so many things that can vary.
Obviously. But one thing you're handwaving away is the much-lower overhead rate that Medicare has vs. any private system, a rate directly resulting from its lack of administrative bloat, bonus-taking and other profiteering, and marketing. For the same coverage, yes, it is cheaper. We know that. The opposition comes from those profiting from the current system, which is by no means "the envy of the world" (all of which has cheaper costs for the same or better service), despite the standard Republican lie.
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Old 12-17-2018, 09:56 AM
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My prediction is that this will now go to each state (as it should have under the Constitution) to decide and as many will find out (like we did in Colorado) that people want better coverage than $8000 a year insurance that doesn't pay for anything but NOT single-payer since Oh Noze taxes. So we'll end up back where we were before Obamacare which is right where we were DURING Obamacare ... paying outrageous premiums for health insurance that doesn't pay for anything.
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Old 12-17-2018, 09:58 AM
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One can hope the people will also notice which party brought back pre-existing conditions and lifetime caps.
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Old 12-17-2018, 10:00 AM
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Whether or not they rule it is unconstitutional, the ACA is effectively dead in the water. The people they relied on to sign up, most haven't
In all fairness, many could not afford the insurance after the companies jacked up their rates OR the insurance companies left the exchange in the poorer counties.
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Old 12-17-2018, 11:48 AM
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I understand the argument. O'Connor delved into (pdf of decision) whether the intent of the 2010 Congress or the 2017 Congress should be controlling.



I've already summarized the view that the 2010 Congress intended the Individual Mandate to be inseverable from the rest of the PPACA. O'Connor analyzes the intent of the 2017 Congress and concludes that they, too, intended the Individual Mandate to be inseverable.

In his analysis of the intent of the 2017 Congress O'Connor emphasizes that the Individual Mandate and the Shared Responsibility Payment (the tax) are two different things. O'Connor has already decided that the Individual Mandate is unconstitutional The remaining question is only on severability.

The 2017 Congress did not repeal the Individual Mandate. O'Connor infers that this is because the 2017 Congress recognized that the mandate is an essential part of the PPACA and the PPACA would not work without it.



ISTM that a finding that the 2017 Congress intended to introduce severability when they did not do so explicitly is a dicey proposition.

In 2010 Congress passed a law with provisions A-E. In 2017 Congress eliminated provision A. Now the court finds provisions B-E cannot stand alone because SCOTUS has already decided that provision B is unconstitutional in the absence of provision A.

So the question is whether provisions C-E can stand alone and would the intent of Congress be preserved by leaving provisions C-E intact? O'Connor finds that the ACA without the Individual Mandate would not serve to expand coverage and lower premiums as the intent of the law explicitly states.
One of the cardinal rules of statutory construction is that a legislature is presumed to know of its prior enactments. If I understand correctly (and please correct me if I am wrong) the individual mandate is still on the books, but the tax penalty for violating it is $0. Therefore, the argument goes, it is not a tax, and as it was only held to be constitutional by a 5-4 vote because it WAS a tax, then the Supreme Court, logically, would now strike it down 5-4 as not a valid power of Congress. I'm with you there.

But the Court seems to suggest that Congress would not want the sub provisions to stand without an effective individual mandate because of the death spiral arguments. Indeed the 2010 Congress and Obama himself argued that very thing. But the 2017 Congress nonetheless repealed the individual mandate and left the rest of the provisions intact. I'm not seeing how it could be suggested that Congress considered the individual mandate absolutely essential to the entire law when it gutted the provision.

The Court seems to argue that an individual mandate with no penalties, now unconstitutional because it is not a tax, is so essential to the rest of the law that the rest of the law must fail. How can that be so? Surely Congress must have known that a law with no penalties will have a very low compliance rate and not base its comprehensive scheme on such a law.

Article III standing seems to be an issue as well. If I choose not to buy health insurance this year and am faced with a tax penalty of $0, how am I harmed? What can a court do to redress my harm? Order that I do not have to pay $0?

Again, I dislike the ACA as much as the next guy, but this seems to be results-oriented judging.
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Old 12-17-2018, 01:06 PM
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I've been reading some analysis on this issue, and it seems like there's an apt medical analogy.

The individual mandate is now a vestigial organ, like the appendix. And as we all know, if something goes wrong with a vestigial organ like the appendix, doctors have no choice but to euthanize the patient. The judge was just acting like any responsible doctor would.
  #46  
Old 12-17-2018, 01:07 PM
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“...without violating the basic economic and governmental principles of the party?”

Such principles do not exist, therefore they will do anything that is politically beneficial just like the Democrats. This will probably include an increase in spending of some kind.
  #47  
Old 12-17-2018, 01:14 PM
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I've been reading some analysis on this issue, and it seems like there's an apt medical analogy.

The individual mandate is now a vestigial organ, like the appendix. And as we all know, if something goes wrong with a vestigial organ like the appendix, doctors have no choice but to euthanize the patient. The judge was just acting like any responsible doctor would.
I disagree. It is not the proper purpose of a court to strike down a bad law. The people, through their elected representatives, have the right to enact all sorts of laws that I personally consider bad. See, e.g. the Driving with Measurable Amount thread.

If Congress has enacted a law, which combined with each other, enacts a worthless individual mandate with many other provisions that arguably depend on the effectiveness of the individual mandate, then we can say that it is a terrible law, but the courts do not strike down laws because they are bad.
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Old 12-17-2018, 01:21 PM
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And to nail Roberts again (as I did six years ago) Congress can outlaw everything, but not say it is against the law but impose a 1 cent tax on everything and then prosecute people for not paying the 1 cent tax?

It is form over substance and should not be part of the governing law of the country. See my destroyed Apprendi thread.
  #49  
Old 12-17-2018, 01:31 PM
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I disagree. It is not the proper purpose of a court to strike down a bad law. The people, through their elected representatives, have the right to enact all sorts of laws that I personally consider bad. See, e.g. the Driving with Measurable Amount thread.

If Congress has enacted a law, which combined with each other, enacts a worthless individual mandate with many other provisions that arguably depend on the effectiveness of the individual mandate, then we can say that it is a terrible law, but the courts do not strike down laws because they are bad.
I suggest you re-read Ravenman's post.
  #50  
Old 12-17-2018, 06:54 PM
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One can hope the people will also notice which party brought back pre-existing conditions and lifetime caps.
2016 taught me that depending on the American public to be informed, moral and rational is not a winning strategy.
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