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.
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Article I § 9 (4) has been superseded.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.
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.
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.
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.
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.
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”.
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.
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.
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.
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
Neither was the ACA, but sometimes to do good one has to sacrifice political power. Republicans of today lack that emphatic capacity.
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.
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.
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.
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?
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.
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.
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.
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.