A statute declared unconstitutional on its face, as your example almost certainly would be, is null and void as a matter of law. A statute that is amended is the only extant version of that statute as a matter of law. The old statute no longer exists and has no legal effect. It cannot be reverted back to.
There has long been a strong presumption in favor of severability as a matter of statutory construction. As Justice Blackmun explained, “[t]he standard for determining the severability of an unconstitutional provision is well established: ‘Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.’” Alaska Airlines v. Brock (quoting Buckley v. Valeo). A severability clause is helpful, but I don’t know of any authority that it is required.
It was a very plausible argument when the ACA was first enacted that the mandate was not severable. But now Congress has rendered the mandate inoperative while leaving the rest of the statute in place. I’m not sure how you can conclude from that that Congress views the mandate as essential to the law. And, I’m not sure there is an argument that the ACA (or at least most of it) without the mandate is not “operative as a law” (although there are good arguments that it may not be a very good law in such circumstances).
I think the discussion has gotten a bit muddled as the conversation has gone back and forth between various legal doctrines in general and how they apply to Sebelius and Texas specifically. And I could have been clearer in which context my comments applied and been more thorough.
You’re absolutely correct about a presumption about severability generally speaking. But the problem with severability in the first place is unless it is explicitly included in the statute then Courts are required to delve into Congressional intent. And while that’s necessary sometimes, it’s also frequently a messy business that is best avoided if possible. As the court in Texas noted, when a court tries to derive the intent of the legislature and it is unclear, deciding that intent can lead to the very situation severability was meant to prevent, the usurping of the legislature’s role by the judiciary.
So while a severability clause was not necessary per se, it sure would’ve been helpful and saved a lot of litigation. Especially considering this is landmark legislation that also delves into new Constitutional territory. And after all, it was the severability clause in the Medicaid statutes which may have saved the ACA in *Sebelius *, since the Medicaid expansion contained within the Act was found unconstitutional.
But even if the lack of the clause is not dispositive of the issue, one problem is, as the court in Texas noted, that there is ample evidence that the 2010 Congress considered the Individual Mandate an essential part of the Act. It also went on to cite how all nine Justices in * Sebelius * seemed to acknowledge that fact.
As far as the 2017 Congress, they didn’t render the Individual Mandate inoperative. They simply reduced the financial penalty for non-compliance to $0. The Individual Mandate still requires that an “applicable individual” maintain insurance on a monthly basis for themselves and any dependents. And any future Congress can restore the penalty if they wish to do so.
So not only did they not repeal the Mandate, but it continues to function as law, continues to interact in important ways with other sections of the ACA, and continues to affect the health care markets. And as mentioned, its continued existence leaves open the option of collecting a penalty for non-compliance at some future time. Given all that, I don’t think you can necessarily be confident that the 2017 Congress’s view of the necessity of the Mandate is any different from that of the 2010 Congress.
And what do you mean by “not operative as a law” with regards to the ACA sans Mandate? Are you referring to the necessity of the Mandate to the ACA functioning practically/as intended? Or to the law’s functioning following the Mandate being struck down?
I think that to hold that a mandate with a tax penalty of $0 for non-compliance is still a “mandate” is a pretty thin reed as a matter of law. What if they repealed the mandate entirely? A future Congress could still re-enact it.
It would seem an absurd construction that the 2017 Congress believed that a mandate with no penalties was essential for the remainder of the ACA to operate properly.
I am willing to accept that the 2010 Congress saw the mandate as essential. But, to me, a mandate with a penalty of zero (or a tax of $0) is functionally inoperative. And while that may not matter for the constitutional question regarding the mandate, I think it has to be viewed as probative of whether or not the 2017 Congress viewed the mandate as essential to the regime. And I find it hard to see how it could be. Certainly a future Congress can reimpose the penalty, and that Congress might view the mandate as essential, but under these circumstances, it’s quite the leap. And, as I understand the question isn’t whether there is evidence 2017 Congress had a different view (i.e., it’s not like the “view” stays fixed until changed), but whether we believe that the 2017 Congress never would have left the ACA regime in place if the mandate was unenforceable. And, since the mandate is functionally inoperable (with a $0 penalty), I don’t see how you can say that it is essential.
You know, I’m not sure. It’s just part of the test. I assume it’s the latter: can the law function if the mandate is struck down? It has to be a different question than “is the mandate essential” (since it’s a different prong), so I assume it’s a functional question.
It’s definitely a thinner reed to be sure, but it’s not like the Mandate was absolute in the first place. Not only were quite a few people exempt from the Mandate but even more were exempt from the original penalty even if covered by the Mandate. And the fact that they didn’t repeal it has to have some weight in determining whether the 2017 Congress considered it essential. It may be far from dispositive but it certainly doesn’t bolster the argument that it was in fact not essential.
And as mentioned previously, leaving the Mandate intact provides the means to alter the penalty at some future date. The elimination of the penalty was done through the reconciliation process and, as far as I know, it could be reinstated the same way. So repealing the Mandate and reinstating it through the normal legislative processes would almost certainly be more difficult to achieve, quite possibly to a hugely significant degree.
Furthermore, the Mandate continues to serve arguably important functions within the ACA even without the penalty. First of all, § 5000A contains definitions of terms which are to be applied elsewhere in the Act and in other laws. For example, Section 6055 of the Internal Revenue Code, adopted through the ACA, requires anyone who provides “minimum essential coverage,” defined in §5000A, to report specific information to the IRS regarding covered individuals, provide covered individuals with a statement evidencing this coverage, and imposes penalties for failing to report.
Lastly, some number of people, even if relatively small, will likely continue to purchase and maintain insurance due to the Mandate’s requirement and even absent the penalty. So while the Mandate undoubtedly no longer functions as it did, it is overstating the case to argue that it no longer serves any function whatsoever. And if it still serves some function then who can say if that functionality is essential to the ACA besides Congress?
We have ample evidence that it was viewed as essential to the ACA before the elimination of the penalty but no compelling evidence that the penalty was the only singular reason it was viewed as essential. Given that, the courts should show restraint and deference when attempting to divine a co-equal branch’s intent.
And once again, this whole mess could’ve been avoided if Congress had clearly signaled their intent with a severability clause. They are commonly used and an even better idea when passing landmark legislation depending on unchartered Constitutional territory.
It would be something if the Republicans and their lawyers are able to make something unconstitutional and completely repealed, just because of deliberate sabotage on their part.
It may be going a bit far to conclude it was deliberate sabotage. It’s certainly possible, maybe even likely. But if it was deliberate, then it was pretty craftily done. The sheer ingenuity maybe weighs against it being part of a coordinated devious plan and maybe dumb luck played a large part.
The GOP zeroed out the penalty as part of a overall tax cut bill. Nothing strange there. As I understand it, because the bill just changed budgetary/fiscal numbers they were able to use reconciliation to prevent filibuster. So when people say they repealed the Mandate or eliminated the penalty that’s not accurate. Because of the nature of reconciliation they were only able to change the numbers and so they changed the penalty to $0.
I don’t know of any reason why the penalty couldn’t be changed again through the same process. And if it was changed to some nominal number ($1, $10, whatever) then that could be enough to declare the question moot while it makes its way through the appeals process. It’s a simple solution and pretty much everyone wins. The ACA stays and the tax cuts are reduced by a relatively small amount. I’m not optimistic.
It’s been, what, ten years now, and there still is no Republican alternative. It’s almost like their goal is just to repeal the “Obama” part of the name of Obamacare, isn’t it?
I’d *like *to think my country is better than this, but the evidence to the contrary is persuasive.
The Republicans have no alternative. They never did. They likely never will. This is what happens when one of our great parties goes stark-raving mad. They chant empty slogans with no idea of what it actually means.
Let’s remember that back in 2002/2003, it was Republicans who passed a Medicare Drug benefit. There was also Republican support for S-Chip when it was being voted on by congress, as that was a bipartisan bill. And the ACA itself was based on a healthcare plan designed by a researcher at the Heritage Foundation, and then implemented by Mitt Romney in Massachusetts in 2006.
It’s really amazing how far the party has fallen. Currently, once you get beyond “tax cuts” and “lock her up”, there’s nothing there.
And how many years have Democrats made implementing UHC an important part of their platform? You would think that over that period, much longer than ten years by the way, they would take the time and due diligence to craft a much better piece of legislation than what we got. Failing to include a severability clause is gross incompetence by any objective standard. Even just as a matter of the Democrats’ self-interests. Over all that time did someone not make a checklist? Have a Post-It somewhere? This was a huge law in terms of social change, policy shift, economics, etc. And knowing that it was obviously treading on unchartered Constitutional territory a severability clause should have been a no-brainer.
However badly the ACA was drafted and implemented it certainly achieved some worthwhile goals. Which goals were worthwhile and how efficiently they were achieved is up to debate. But in the end the Democrats rushed to pass a badly drafted and poorly thought out piece of legislation. And while “we can always fix it later” is sometimes a valid principle, other times it can be a really, really bad idea.
The GOP bears the blame if Texas stands and the ACA is struck down. Even if they claim the result was unintentional there seems to be an easy and relatively pain-free fix. And they bear the blame for not producing either some sort of alternative UHC-type plan or addressing our problems with health care through some other approach.
But here’s the thing with both the GOP failing to produce a viable alternative and the Democrats’ hurried and flawed legislation. Turns out this stuff is hugely complicated at every level and in multiple aspects. And some part of both parties’ failures can be attributed to the sheer size and complexity of the issue.
The comparison with Romneycare, for example, is a major oversimplification. Romneycare is different from the ACA in notable ways. Romney even vetoed eight sections but was later overridden by the state legislature. And most importantly, even if they were identical it does necessarily imply that the same plan could scale-up to the level of the ACA. People like to say Romneycare was the template for the ACA and that’s fine. But a template only gets you so far with something so complex, the devil is in the details.
And reducing any major political party in any major democracy to two-dimensions seems like another oversimplification. This time for purely rhetorical purposes.
I get that, but the argument was that the ACA was a “three legged stool” in that we were going to:
- mandate that people have health insurance
- provide that no pre-existing conditions could exclude someone from health care coverage
- provide assistance/payments to those who could not afford coverage.
The argument in 2012 was that if you remove one leg, then the “stool” collapses. If you don’t have an individual mandate, then you cannot have #2 or #3 because if you do not mandate the purchase of health insurance then there is a “death spiral” in the system. Healthy people do not buy coverage because they are not required/penalized for doing so, leaving the insurance companies and the government providing out of control costs to mostly sick people buying into the system.
But the 2017 Congress removed, essentially, #1, so it didn’t deem #1 essential, at least right now. One could say that it was shortsighted, stupid, foolish, or whatever, but that is what Congress did. So I find it very difficult for a court to say that no Congress would have intended that result when it was the very thing it did.
A further problem is ruling on the constitutionality of the mandate now. I could agree (as I did in 2008/2012) that an individual mandate to purchase health insurance is unconstitutional when I would have been penalized/taxed for not doing so. But today in 2019, what person has standing to challenge that? What is my injury if I choose to forego health insurance? A tax of $0? How to I get redress of my harm? That the court orders that I do not have to pay $0? The IRS cannot collect $0? I get a $0 refund?
I agree with this. Removing the mandate might practically make the rest of the ACA infeasable, but I don’t know how you argue that it legally nullifies the rest of the ACA. It’s very possible that the law becomes impractical, in which case the electorate needs to either demand the congress restore the mandate or write a new law that avoids the contradiction, or demand that the President use some power at his disposal to at least mitigate the problem.
The Democrats produced a law, the ACA, which was actually welll-thought out and that has made a big difference in the lives of over 20 million people. The Republicans have done nothing but chant empty slogans for the last decade. You seem as if you’re drawing an equivalence here between parties, where it’s not called for. The ACA isn’t perfect. But it has withstood 2 solid years of sabotage, and is actually in good shape. Like any large bill, it needs technical fixes. But Republicans won’t do any fixes, because of, errrrrh, “repeal and replace” or “lock her up”.
There’s been one party on this issue that has tried to operate reasonably in good faith, and tried to govern somewhere in the neighborhood of their promises. There’s another party that has not. There isn’t even close to an equivalence on this issue.
Ok, perhaps in my efforts to present counter-arguments I didn’t make myself clear. In no way am I saying that the argument about the necessity of the Mandate, and its penalty for failing to comply, is generally incorrect. But so far the death-spiral has not occurred. People are still buying insurance even absent the penalty. Some number, that most estimate to be in the mid-to-high single-digit millions range, will lose insurance. So the death-spiral isn’t a foregone conclusion exactly because the Mandate remains and the penalty can be reinstated. So all we know now is that revenue was lost and the number of insured through the ACA will almost certainly see a net decrease. So while the practical effect of the TCJA passed by the 2017 Congress may be similar to repealing the Mandate the crucial difference is that it may be temporary and not necessarily lead to the death-spiral. After all, couldn’t Congress temporarily reduce the penalty and willingly take the hit on revenue and drop in insured knowing it could make it up in the future? Isn’t there a plausible scenario where that could even be beneficial as a temporary measure? That kind of adaptability and flexibility is one of the main reasons the reconciliation process exists.
What if Congress, once again even temporarily, simply reduced the penalty to a level above $0 but where the ACA was hemorrhaging money and not enough people were signing up? At exactly what dollar amount is that leg knocked out from under the stool because the revenue or number of insured is not enough to sustain the model? See the problem with that approach?
And even if the Mandate was essential to the ACA and shouldn’t have been severable anyways that just leaves other problems with the ACA. The failure to include a general severability clause, even one that excluded the Mandate, was an astonishing oversight. As to the penalty, the fact that it can be more easily adjusted through reconciliation may be a good thing in some circumstances. But the possibility that it could be set so low, yet again even temporarily, so as to not be able to sustain the ACA and the “three legged stool” model should have been foreseeable. Let alone the Constitutional issue it created that was the focus in Texas. It’s even possible that they could have made the penalty not subject to change through reconciliation. By directing its revenue to Social Security for example.
As to standing, Texas is already making its way through the Fifth Circuit COA. Appellees have certainly already raised the standing issue. But you know very well this process could take months upon months, if not years, before motions are even ruled upon. And that process could almost certainly be delayed even further. And a change in the penalty between now and then would render the standing question just as moot as the Constitutionality question.
Do you even realize that your post is almost entirely subjective opinion and almost completely lacking in objective fact? And not just opinion but hyperbolic, heavily-biased opinion unsupported by facts?
You accuse the GOP of acting in bad faith. That’s one of those accusations that people throw around like accusations of lying. Just because someone acts in a way you disagree with does not mean they necessarily acted in bad faith just like someone making an arguably or even demonstrably untrue statement does that necessarily mean that they lied. The law sets a high bar for proving both bad faith and lying because it rightly recognizes both need an intent to deceive. How do you know the GOP don’t truly believe that their positions on any particular issue, including the ACA in particular or UHC in general, represent what they believe is best for the country? And maybe your inability to believe how people can hold positions opposed to yours in good-faith is rather a failing of comprehension or imagination on your part.
I suppose if a court thought that the reduction of the tax to $0 was a temporary measure for some other purpose, then then maybe the argument could be made, but it stretches credulity because that wasn’t any part of the reason why the 2017 Congress reduced the tax to $0. And if it is only temporary, then doesn’t the law survive a court challenge? Is a tax of $0 still a tax because it can be increased in the future?
We are having this argument because of Roberts’ wholly ridiculous holding that the government is taxing people for NOT doing something instead of sticking to his guns and striking down the law on interstate commerce clause grounds.
Under Roberts’ argument, a tax of 1 cent per a person’s lifetime would uphold the three legged stool. Should the whole thing be struck down because it is $0 temporarily?
It’s an objective fact that when Obama was in the White House, the Republicans passed repeals 30 to 40 times in show votes that were meaningless. It’s also an objective fact that after chanting “repeal and replace” over and over for 9 years, when they were finally a majority in both houses and in the White House, they couldn’t pass anything to replace and they couldn’t even repeal. There were bills that they tried to ram through without CBO scoring and without actual hearings, because they didn’t want too much information getting out about what they were cooking up. But it ended up being nothing. No repeal. No replace. Those are all objective facts. So spare me your condescending lecture.
So yes, I think they didn’t actually believe what they were saying. This much we know, because their actions show that they were completely unprepared to replace, and were even unable (unwilling) to repeal. The objective facts show without a doubt that they were campaigning in bad faith.
I used to be a Republican. And I understand different points of view on many issues. But on this specific issue, the Republican Party is very dishonest. I think the lack of comprehension is more likely on your part than on mine.
Well, if the penalty is $0 for non-compliance, then it’s a mandate in name-only. There’s no punishment for not complying with the “mandate”. So, I think it’s very clear than the 2017 congress had a different view than the 2010 congress, because they got rid of the penalty for the foreseeable future. The penalty isn’t scheduled to ever come back above $0 under current law.