We are coming from different sides politically, but we agree on this much.
If the law sees a distinction between no mandate and a mandate with a penalty/tax of $0 if you violate the mandate, then the law has lost its way. There is no functional difference.
Yes, Congress could restore a monetary penalty for the mandate in the future, but it could likewise re-enact the Smoot-Hawley Tariff. The constitutionality of a law today has no bearing on what a future congress MIGHT do.
Some of what you post is indeed facts. It is your interpretation of the significance of those facts that is logically suspect. Your continued inability to see how those facts don’t inevitably lead to the conclusions you’ve drawn makes me pretty confident it’s not me.
I think you’re conflating the issues. The first is whether the reduction of the penalty to zero has rendered it not a tax and thus outside Congress’s Constitutional powers. The second is given the Mandate is unconstitutional because of the first issue then whether the reduction is evidence that the Mandate was not essential to the ACA and thus could be severed. You talk about the future actions of Congress not affecting the Constitutionality of a law today. And I think that’s generally true. But we’re talking about the actions of a future Congress in relation to the reduced penalty and if it renders the Mandate non-essential. That has nothing directly to do with it’s Constitutionality whatsoever. It only does so indirectly because the reduced penalty also triggered the Constitutional Power to Tax issue and the subsequent issue of severability.
I understand the separate issues. I was addressing what I thought was your contention that a tax enacted into law, the current rate set at $0, could nonetheless be still considered a tax because the rate could be raised in the future.
IOW, your posts considered these two situations distinct:
I don’t see any difference, but you made non-frivolous, if not necessarily persuasive to me arguments that there is a difference that could uphold the mandate.
Those same arguments apply to the severability issue. But I still contend that a court would be flipping itself on its head to say that Congress meant to enact a comprehensive health care regime that hinged on people complying with a $0 tax.
If it doesn’t find that, like most say it could not, then the rest of the ACA is constitutional.
I think about this sometimes… the Commerce Clause and how it can potentially be interpreted to consider a butterfly flapping its wings in California as having an effect on commerce between Ohio and Indiana and therefore subject to federal law.
I’m a guy who overall is for a strong federal government but this stuff can get out of hand pretty quickly, IMO.
Bullshit. When Republicans campaign on wanting to cut taxes, I know they’re telling the truth, because they have a track-record of passing tax cuts. I know they mean what they say on that issue, even if they have to lie about the deficit impact of said tax cuts. At least, it’s clear that they want to cut taxes.
In Health Care, it’s clear that they had no intentions of doing “repeal and replace”, and when they were in position to do it, there were no plans, no replacements, no hearings to mark up a bill. There was nothing. I’m very confident that my logic is correct.
I was one of those people that thought the ACA would collapse with a toothless mandate. I was very wrong, as were many. But it did lead to higher premiums, which drove even more middle-class folks, who are unsubsidized, out of the market. If the ACA-structure is to ever achieve full UHC, the mandate will need teeth behind it. A really tough penalty, or an auto-enroll feature. The ACA 2.0 bill puts subsidies in for middle-class people. If they’re able to get ACA 2.0 through congress in 2021, that sets the stage for putting a real mandate back in play, and getting us to true UHC.
My reading comprehension is failing me because I think you’re arguing two different sides in these two quotes.
One can logically argue that a functional mandate is inseparable from the rest of the ACA, since it is “required” for the ACA to function. One cannot logically argue that a non-functional mandate, a powerless, irrelevant, unenforceable statute, is inseparable from the rest. The first argument may be incorrect, but it is internally consistent, the second is not.
You are misunderstanding my contentions then. The only time I discussed the penalty of $0 being considered a tax was to say it wasn’t a very good argument. The only time I referred to future actions of Congress in that particular context was to say that a future Congress, or this one acting at some future time, could potentially render the Constitutionality question regarding the Mandate moot by reinstating a penalty, even if nominal, before a court renders another decision on appeal.
The arguments I made regarding future actions of Congress only had to do with the severability issue. You and others have argued that the 2017 Congress must have viewed the Mandate as non-essential because they reduced the penalty to $0 thereby rendering the Mandate largely ineffective as far as compelling people to obtain and maintain insurance.
My counter-argument is that the Mandate still serves other functions in the ACA, the Mandate wasn’t itself repealed, and the 2017 Congress could’ve reduced the penalty to $0 knowing that they could restore a penalty at a later date. All of those are plausible reasons why the 2017 Congress could reduce the penalty while still viewing the Mandate as essential. So absent clear evidence of how the 2017 Congress viewed the necessity of the Mandate, and absent a severability clause, all we are left with is the view of the 2010 Congress. And there is pretty strong evidence that Congress viewed the Mandate as essential.
So in determining severability a court shouldn’t use dubious evidence in place of clear evidence as to whether either Congress considered the Mandate essential and thus non-severable. And no court should attempt to determine whether any particular dollar value for the penalty renders the Mandate ineffective absent any other evidence of Congressional intent. The best means to implement legislation should be left to our legislature, assuming those chosen means aren’t violative of the Constitution or come into conflict with some other law. How best to implement a law and whether those means are effective is ultimately a Political Question.
This all began when you accused me of making an equivalence between the relative actions/inactions of the GOP and Democrats regarding health care. I made no such equivalence. I merely stated how each had failed without assigning a value to the magnitude of that failure or its moral implications. You read into my comments what wasn’t ever there and proceeded to go on a rant about an equivalence I never made.
Both parties have to deal with the political realities of the situation when trying to implement any type of UHC specifically and health care reform generally. Those political realities occur within their own parties and when dealing with the other party. Added to that is the fact that this is a massively complex and multi-dimensional issue. So neither failing to offer an alternative in a timely manner or implementing flawed legislation is per se evidence of bad faith on the part of either party. It may be other things, but it is not clearly acting in bad faith.
I don’t think I am. There are two questions for a court to answer, being bound by Roberts’ precedent, which since he simply made it up, is somewhat difficult to follow, yet I think the ultimate answer is the same regardless of which route we go down: the remainder of the ACA is constitutional.
First, we agree that except for the mandate, the remainder of the ACA is constitutional (unless maybe, if your name is Thomas or Gorsuch). So there are two questions: 1) Does the mandate remain constitutional when the only reason it was upheld was because of the tax power when it now does not raise any revenue, and 2) is it severable from the rest of the act?
My answers are: 1) It is no longer a tax and therefore unconstitutional. It is a butchering of the English language to say that something which raises no revenue is a tax. However, no individual has standing to challenge it because nobody suffers an injury in fact. It does not harm me to pay a $0 tax, so since nobody can challenge it the mandate stands.
The idea that the tax was only reduced “temporarily” belies the content of the debates that went on at the time and further highlights the folly of attempting to discern congressional intent. Maybe DirkHardly is correct about congressional intent and I am wrong, but both of us would just be guessing and IMHO that is not a valid reason to strike down otherwise valid acts of congress. The best indicator of congressional intent was what congress actually did, and in 2017, they left the remainder of the ACA in place while reducing the tax to $0. That is the best evidence that it did not consider the mandate essential and that the ACA should stand.
Indeed, it WAS a failure of my reading comprehension. Carry on.
3 things:
yes, they both had political realities;
No, it’s actually not that complicated. The design of the ACA was based on other systems that had already been implemented so they had a template when the ACA was created;
It’s very clear that the Republicans acted in bad faith here, and we know this because of the process - or lack thereof- they went through in 2017 and the results, or lack thereof…all of that combined made it very clear that their “repeal and replace” was smoke and mirrors.
The tone and wording of your posts make me think you’re drawing an equivalence. If you’re not or don’t actually feel that you are, then fine. I’ll drop that point. Everything else stands.
Interesting article from TheHill.com…Trump’s latest shift on the ACA and wanting it repealed has Republicans in congress worried, and they should be. Because they don’t have anything to replace it.
*“If you’re looking strictly at political outcomes, it could be argued that a lot of members don’t want to see this struck down because they don’t want to deal with the fallout,” said a senior Republican senator.
GOP senators say there had not been any substantial conversations between the administration and key lawmakers before the Department of Justice changed its legal strategy and filed a statement to the 5th Circuit Court of Appeals last week arguing that all of the ObamaCare should be invalidated.
Some suspect Trump didn’t fully think through his strategy before announcing on Tuesday “the Republican Party will soon be known as the party of health care.”
“If they were really working to build something that had legs, you would have thought there were some conversations prior to Tuesday and there were none,” said a second Republican senator, who called Trump’s political strategy “not a good one for us.”
“Every one of us was caught flatfooted,” the lawmaker said, including Senate Majority Leader Mitch McConnell (R-Ky.), who “had no idea” of what was coming.*
This latest cockamamie lawsuit against the ACA is NUTS, but at some point, those of us who support Ocare have just become numb to obviously bullshit bad-faith Republican court challenges to it (King v. Burwell says hello). I’ll just say this, and this has never been adequately countered from the folks who support this latest suit:
If Ocare was constitutional before the 2017 tax law, and then that law made the ACA unconstitutional, then wouldn’t the remedy instead be to strike the provision of the tax law that did that, rather than the entire ACA?
You say the lawsuit is “NUTS” yet you concede to having not read the arguments in favor of it, including those expressed in this very thread.:rolleyes:
To answer your question, it was held in 2012 that the ACA was inseverable; that all of the provisions were necessary to work together in harmony. Remove one and the law is unstable and not what Congress intended. So, if you say that the mandate is now not a legitimate federal power because it is no longer a tax, then the other provisions must fail because it was previously found that they are inseverable.
Now, I disagree with that argument for the reasons I stated before, but it is not bad faith or obvious bullshit or cockamamie.
Of course I’ve read the arguments in favor of it, and yes, the suit is very much obviously bullshit, cockamamie, and bad faith. It just aligns with every prior Republican court challenge to Ocare, and just the nature of the escalation here - where Trump basically begs a court to do what he couldn’t get done through Congress - reinforces how baseless these challenges will get when it comes to anything related to this law.
Really? This was asked and answered pretty early in the thread. The answer is not only a long-standing legal principle but pretty basic logic: in order for a law to be unconstitutional it has to violate a specific part of the Constitution. Can you cite a specific part of the Constitution that you believe the TCJA violates? Can you cite me a single case from the entirety of US legal history where a law was struck down for being generally unconstitutional?
Or are you arguing that there is something implied in the Constitution but not expressly stated ala * Griswold *? Of course the problem with that comparison is even that decision was still based on specific Constitutional provisions. Namely the finding of an unenumerated right under the Ninth Amendment and the implied Right of Privacy under various others. So are you arguing there’s an implied Constitutional Principle that’s not an unenumerated right but implied somewhere in Article 1 or 3? Once again can you cite a single case that has taken that position?
Let me guess. None of the people you asked your so-called gotcha question were lawyers were they? Or knew the first thing about Judicial Review? Because the very first thing you address in arguing a law is unconstitutional is citing what part of the Constitution you think it violates. Even before standing. The very first, most basic, fundamental thing.
And of course you then go on to call the challenges in the various cases baseless and made in bad faith. It’s a shame you weren’t there to advise all those Courts to summarily dismiss those cases for being so meritless. And to refer the attorneys involved to the respective Bars for possible ethics violations.
It’s also a real shame you weren’t there to advise the SCOTUS majority in * Sebelius * that Congress’s power to regulate interstate commerce encompassing economic inactivity, or potential future activity, was settled law and the case didn’t even need to be heard. You know, settled law under some Constitutional principle that apparently only you were aware of.
And if only you had been there to advise the majorities in Burwell that they were wrong and the statutory language at issue was not in fact ”ambiguous" and “poorly written.” The majorities that included the “liberal-wing” of SCOTUS and Democratic appointed judges on the Fourth Circuit COA by the way. They all really dropped the ball on that one. Never even should have been heard.
Finally, of course a tax of $0 is still a tax. There can be no possible reasonable argument that it isn’t. I mean, sure taxes are at least partially defined by their ability to produce revenue but that’s irrelevant. Because reasons. If only you had spoken up sooner or louder so much time, money, and effort could have been saved and all those judges/Justices wouldn’t have needed to embarrass themselves like that.
Yes, there comes a point when any layman with even an iota of common sense can point out the overflowing bad faith bullshit emanating from these anti-ACA Republican lawsuits. We have long since crossed that threshold, and the fact that this latest TX case was venue shopped to that hack Republican judge in Forth Worth - who ruled like a good ol’ Republican partisan would be expected to rule - further reinforces my point. This suit is obviously bad faith bullshit in every conceivable way.
No actually there is never any such point. Since you obviously imagine yourself to be such a layperson and possessing the requisite “common sense” why don’t you try and translate some of that into actual legal arguments? Seems the way to go in a discussion about the law and all.
Or maybe you can even use some of your “common sense” to suss out why your characterization of events and the law in no way matches up with actual reality. Along the way maybe it will dawn on you that the reason no one has rebutted your question (well, until I did) of “Why wasn’t part of the TCJA struck down instead of the ACA?” is that none of the Plaintiff’s counsel felt the need to rebut or even consider such an ignorant and ridiculous legal argument. Just like apparently their opposing counsel felt no need to raise such an argument in the first place. You would think that someone with such abundant “common sense” would realize the significance of that omission, but here we are. It’s too bad for you the law runs on actual logic and not your particular concept of what constitutes “common sense.”