In this case, common sense dictates that congress choosing to repeal part of the ACA doesn’t make the rest unconstitutional. Legally, congress hasn’t changed the constitutionality of the law. The only aspect that has ever been found unconstitutional was the mandated medicaid expansion. The S.C. determined that if the ACA had mandated health insurance by a method other than a tax penalty, it would be unconstitutional, but if it is effectively changed a recommendation with no associated penalty, that’s just congress changing a law, and unless it’s unconstitutional to not mandate something, it doesn’t make either the mandate or the rest of the law unconstitutional.
Once again, your vague notion of what would be a “common sense” result is completely irrelevant when discussing legal issues. It is even more irrelevant when you not only apparently fail to grasp the legal issues and principles involved but also fail to grasp the relevant facts. Congress never repealed the Mandate (§5000A(a)) but instead changed the associated penalty (§5000A(b)) to $0 through the Reconciliation process. Reconciliation only allows changing numbers for fiscal/budgetary reasons. So repealing the Mandate wasn’t even an option via that process.
The Court in *Sebelius * found that the Mandate was only Constitutional because the penalty was a tax and fell under Congress’s Power to Tax. The Court in Texas found that a tax of $0 was no longer, Constitutionally speaking, a tax. If there is no tax then the Mandate becomes unconstitutional as an invalid use of Congress’s legislative authority.
And if any part of a statute is unconstitutional on its face then the whole statute becomes unconstitutional unless the relevant portion can be severed. Since Congress failed to include a severability clause in the ACA then the Court must look to Congress’s intent. We have ample evidence that the 2010 Congress viewed the Mandate as essential to the ACA, with multiple references to the inevitable “death spiral” that would occur if it was not included.
Now some have argued that the 2017 Congress’s intent should control re severability but that’s problematic because that is trying to infer an intent from that Congress’s actions and having that inferred intent trump the explicit intent of the 2010 Congress. It’s even more problematic when there are other plausible reasons that the 2017 Congress could have set the penalty to $0 while still simultaneously viewing the Mandate as essential.
Plus, none of this solves the problem that if the Mandate is severable and the rest of the ACA stands then you are still left without a Mandate and presumably are facing the inevitable “death spiral” that the 2010 Congress feared would occur. And if the ACA can survive an unknown period of time until the Mandate is restored then logically it could even more easily survive an unknown period of time until the penalty is raised to a value greater than $0 since the latter is unquestionably easier to achieve legislatively.
I’m pretty sure the reconciliation COULD allow them to do more (the “repeal and replace” efforts prior to the tax reform package also attempted to use reconciliation as a method), but regardless, the important thing is that under the law, the ACA has now been changed and there is no tax penalty. Instead of the mandate being “you must buy health insurance, or pay more taxes” the “mandate” is “you must buy health insurance, or nothing happens”. To believe that the intent of congress is that mandate is essential to the law, you would have to believe that the intent of congress is contrary to what they actually did.
It also shows the internal contradiction to the suit - the Texas judge ruled that setting the tax rate to zero is actually removing the tax entirely and bysodoing remove the only legal ramification to the mandate (as a tax is the only legal consequence to the mandate that the law is constitutionally allowed to implement), but that the intent of congress is to have the ACA depend on a clause whose legal ramifications it has removed.
This is true, and frankly I’m surprised the ACA is doing as well as it is now. I’d guess things will be very different in a year as this tax period may give people a reminder/realization that they don’t need to have health insurance to avoid the penalty. My only consolation is that the penalty honestly was pretty small in the first place but the uninsured rate did decline as a result of the ACA.
It doesn’t matter one iota what procedures the Senate used to reduce the penalty to $0 or whether entirely repealing the mandate was or was not possible under reconciliation. All that matters is what passed, nor is it relevant how the Hell the 2010 Congress felt about the inseverability of the mandate in regards to whatever the 2017 Congress did. Times change.
Frankly even debating the issues on this meritless Republican junk lawsuit is insulting. The hack judge’s decision and Trump’s push to get done in the courts what he couldn’t achieve legislatively each speak to the bottomless pit of bad faith bullshit that Republicans will resort to in anti-ACA litigation.
Are you saying that post 3 was your first post? Since this one was not edited.
There was a duplicate that was cornfielded.
Don’t accuse other people of socking.
[/moderating]
Just because you don’t understand the relevance of certain facts, legal or otherwise, doesn’t make them irrelevant. And just because you don’t understand how the law is supposed to work doesn’t mean that the law wasn’t followed. Once again, since this is a discussion about the law and Great Debates why don’t you actually cite some legal authority in support of what you claim the law is? You seem to be content to skip that whole step and jump right to posting your ignorant conclusions. I realize that ignorance of the law and your inability to meaningfully refute anything I’ve said is a real handicap here but that’s really on you.
No, the same song and dance of airing supposed legal and constitutional issues re: the ACA has been going on since 2010, all in the attempt to afford the anti-ACA crusaders some kind of legitimacy to their dubious arguments. Really since King v. Burwell but now especially since that hack Texas judge’s ruling, I just think it’s time to start calling these meritless suits out as the epitome of bad faith bullshit that they are.
Calling them bad faith bullshit is not an effective legal argument.
That hack Texas judge reasoned that he was bound by Supreme Court precedent that the mandate was “essential” and inseverable from the rest of the ACA. Of course SCOTUS may come to a different result in the present case, but it was not an unreasonable thing for the Texas judge to follow reasoning of the Supreme Court justices in the prior case.
As to whether the shared responsibility payment is a tax for the purpose of upholding the ACA under the Congressional authority to tax Roberts wrote, “This process yields the essential feature of any tax: it produces at least some revenue for the Government.” The 2017 Congress has changed the shared responsibility payment to be $0. As such it no longer will produce at least some revenue for the Government.
The Texas judge thus surmised that a shared responsibility payment of $0 is not a tax and the ACA can no longer be upheld under the taxing authority. Given that SCOTUS had already ruled that the ACA could not be upheld under Commerce Clause or Necessary and Proper clauses of the Constitution he reasoned that the ACA as it currently stands is unconstitutional.
There are some arguments to be made that the 2017 Congress, by its action reducing the shared responsibility payment to $0, no longer considers it to be “essential” to the law as a whole. Perhaps that will be an argument that will be accepted by higher courts, but it is not a forgone conclusion. Time will tell.
I fully understand that lawyers cannot use the appropriate descriptive terms for this case when arguing it in court, and that is both frustrating and unfortunate.
My broader point is that I think it’s high time to recognize from a social consciousness POV that this latest anti-ACA legal assault is fundamentally a cockamamie crock of bad faith bullshit. If we could at least agree on that, then we would all be better off.
I’ve spent some time in this thread on severability, but I have do have some issues with this conclusion as well.
Accepting the Court’s reasoning as valid in NFIB, we conclude that the “mandate” is “not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” I don’t really understand how reducing the tax owed to “zero” changes the nature of the provision. Put another way, the Court concluded that Congress lacked the power to penalize people for not having insurance but had the power to tax them for going without. Why would the amount of the tax or penalty change that reasoning? And, indeed, what really is the Constitutional harm of a provision that says: We mandate you to to do something, but if you don’t, we’re not going to do anything about it.
Once yet again, since bringing a meritless or frivolous lawsuit or one in bad faith is an ethics violation why did none of the relevant Justices/judges or even opposing counsel report this to the relevant Bars for disciplinary procedures?
I never meant to imply that the argument underlying the holding in Texas is dispositive and lacking any valid counter-arguments. Arguing a tax of $0 is not a tax has a nice internal logic to it and is a reasonable position but not an infallible, indisputable
one. But that tends to be the nature of these cases, especially ones that reach SCOTUS. If there was that simple an answer it probably never would’ve reached SCOTUS in the first place. Rather it usually ends up being that one argument is “more right” sometimes just “slightly more right.” If you look at these cases and see one side as clearly 100% right and the other side clearly 100% wrong you’re probably not being objective in your assessment. Kind of the nature of the beast.
I’ve argued in the context of determining Congressional intent re severability that you can’t necessarily infer conclusively that the 2017 Congress viewed the Mandate as unessential to the ACA just because it lowered the penalty to $0. That same argument works in favor of the counter-argument you’re making regarding the tax/penalty.
We can assume that having the tax/penalty being fairly easy to adjust to be generally a good thing. Circumstances change and adaptability may not only be desirable but crucial. And it’s easy to envision circumstances where the penalty could need to be raised. If for no other reason than inflation. But it’s also fairly easy to envision circumstances where it might be best to lower the penalty, even temporarily. Maybe costs have dropped for some reason, maybe the government just doesn’t need the added revenue at this particular time, or maybe lowering taxes is desirable to stimulate a struggling economy or to help citizens struggling financially.
But because these changes are not necessarily “permanent” then it removes the most important part of the “inevitable death spiral” by making it no longer inevitable. And the fact that the Mandate and Penalty are found in separate provisions of the ACA means that the penalty can be changed while the Mandate remains in effect. So if nothing happens in the meantime to change the scenario I could easily imagine SCOTUS saving the ACA yet again by saying in effect what you’re saying, “So the tax/penalty is $0 for now. The feared death spiral is not inevitable and Congress can always act to prevent it. And it’s not the Court’s place to tell Congress how to best achieve legislative/policy objectives. STFU and enjoy it for now.”
I think that making a tax $0 “changes the nature of the provision” in that, IMHO, a tax of $0 is no longer a tax.
There is no such thing as a compulsory contribution of $0. Another reason why I disagreed with Roberts in 2012 is that this is not a tax but a penalty is because it is levied on NOT doing something which is really backwards as to what taxation means.