What the Lawless Obamacare Ruling Means

[Greenbeard]

Jonathan Adler and Abbe Gluck, who've spent years duking it out with each other over the ACA in the courts, are united in their contempt for the poorly reasoned "exercise in raw judicial power" that came out of Texas this week.

In particular, they've taken to the NYT to succinctly dismantle the absurdity of the severability determination made by that activist ideologue in Texas.

What the Lawless Obamacare Ruling Means

That’s not how the relevant law works. An established legal principle called “severability” is triggered when a court must consider what happens to a statute when one part of it is struck down. The principle presumes that, out of respect for the separation of powers, courts will leave the rest of the statute standing unless Congress makes clear it did not intend for the law to exist without the challenged provision. This is not a liberal principle or a conservative principle. It is an uncontroversial rule that every Supreme Court justice in modern history has applied.

Sometimes severability cases are difficult because it is hard to guess how much importance Congress attributed to one provision, especially in a lengthy law like the Affordable Care Act. But this is an easy case: It was Congress, not a court, that eliminated the mandate penalty and left the rest of the statute in place. How can a court conclude that Congress never intended the rest of the statute to exist without an operational mandate, when it was the 2017 Congress itself that decided it was fine to eliminate the penalty and leave the rest of the law intact?

The 55-page opinion devotes just two pages to the intention of the 2017 Congress. Instead, it relies on the perspective of the 2010 Congress that enacted the law, and two Supreme Court cases that were charged with asking questions about that 2010 Congress’s intent. While the dozens of pages rehearsing those old viewpoints may look superficially sound, that part of the opinion is smoke and mirrors, because the 2010 Congress’s intention is not relevant to this case — the 2010 law is no longer what is at issue.

Congress is allowed to amend its own law, and the Constitution does not permit any court to undermine that power. Still, Judge O’Connor wrote that we cannot divine the intent of the 2017 Congress because Congress didn’t have the votes to repeal the entire law but wished it could. That’s ridiculous. Congressional intent is all about the votes. One would not say Congress wished it could repeal the Civil Rights Act if only a minority of Congress supported such a move. It is conservative judicial doctrine 101, as repeatedly emphasized by Justice Antonin Scalia, that the best way to understand congressional intent is to look at the text Congress was able to get through the legislative process.

Instead, Judge O’Connor goes down a rabbit hole, hypothesizing whether the 2010 Congress would have enacted the entire law without the mandate and whether the law can function without it. What findings Congress made in 2010 are irrelevant to the interpretation of this later legislative act. Regardless, Congress’s own act of 2017 makes clear Congress thinks the law works without an operational mandate. To believe otherwise is to assume Congress enacts unworkable laws and that is not what courts are allowed to presume. Judge O’Connor’s claim to the contrary is the equivalent of saying that your 2017 tax cut isn’t valid because the 2010 Congress also enacted a tax bill, and wouldn’t have included your tax cut there.

 

[tres borrachos]

Jonathan Adler and Abbe Gluck, who've spent years duking it out with each other over the ACA in the courts, are united in their contempt for the poorly reasoned "exercise in raw judicial power" that came out of Texas this week.

In particular, they've taken to the NYT to succinctly dismantle the absurdity of the severability determination made by that activist ideologue in Texas.

What the Lawless Obamacare Ruling Means

Thanks - great read. Interesting.

 

[Greenbeard]

Another prominent ACA-hater, Philip Klein at The Washington Examiner, has a similarly sharp take on this absurd ruling today.

I hate Obamacare, but Texas judge's decision on its unconstitutionality is an assault on the rule of law

So what's so bad about the decision? Basically, there are three layers of problems. First, it's questionable why the states would have standing to sue. Second, it's difficult to see why Congress eliminating the penalties would make it unconstitutional. Thirdly, even if one and two were established, it's impossible to see how the mandate can be seen as inseparable from Obamacare after Congress just acted to separate it.

Moving beyond standing, this fact also makes it challenging to see why eliminating the tax would thus make the mandate unconstitutional. Over the years, there have been debates about whether a significant enough increase in the mandate tax could make it unconstitutional. If, for instance, the tax were set so high that it cost the same to pay the tax as to purchase health insurance, it could be seen as effectively a legal requirement with no realistic option of avoiding it. That could warrant a revisiting of the Roberts ruling. But in this case, Congress has done the opposite. It has weakened the power of the mandate to the point where it has absolutely no teeth. If the Supreme Court said that the mandate with a tax penalty was lawful, it's hard to see how a significantly weaker mandate would not be allowed to stand.

Once O'Connor is finished side-stepping the major arguments against his findings on standing and the constitutionality of the mandate, he then moves on to his most preposterous decision: that if the mandate is unconstitutional, the rest of the act must also fall because it is inseverable.

The severability analysis in part has become a debate over whether it's relevant to consider the actions of Congress in 2010, which passed Obamacare, or the one 2017, which repealed the mandate penalties. If looking at 2017, it's hard to argue that the mandate cannot be severed from the rest of the law. Congress did just that when it eliminated the penalties.

O'Connor concludes that in part because the 2017 tax law was passed through reconciliation and Congress was limited in what it could pass, looking at intent regarding severability is a "fool's errand." But this is ridiculous. Republicans knew they couldn't easily repeal other Obamacare regulations in the tax bill through reconciliation, so they could have chosen not to touch the mandate penalties as a result, but they did.

 

[OscarLevant]

Jonathan Adler and Abbe Gluck, who've spent years duking it out with each other over the ACA in the courts, are united in their contempt for the poorly reasoned "exercise in raw judicial power" that came out of Texas this week.

In particular, they've taken to the NYT to succinctly dismantle the absurdity of the severability determination made by that activist ideologue in Texas.

What the Lawless Obamacare Ruling Means

ACA isn't going anywhere, this ruling will be shot down by higher courts, if not the Supreme Court, who has already ruled that ACA is constitutional.


No one is going to want to be the guy who got rid of health care for some 20 million people, though I suspect a Texas judge won't give a damn.

 

[Barnacle]

ACA isn't going anywhere, this ruling will be shot down by higher courts, if not the Supreme Court, who has already ruled that ACA is constitutional.


No one is going to want to be the guy who got rid of health care for some 20 million people, though I suspect a Texas judge won't give a damn.

It'll definitely be interesting to see what will come out of this ****.

The only reason it was deemed constitutional was because Roberts advised to change the word "fine" to "tax".
Now that the tax part has been removed, there is really no standing anymore for Obamacare.

 

[Nickyjo]

It'll definitely be interesting to see what will come out of this ****.

The only reason it was deemed constitutional was because Roberts advised to change the word "fine" to "tax".
Now that the tax part has been removed, there is really no standing anymore for Obamacare.

So are we closer to Medicare for all?

 

[Lursa]

The current ACA sucks 'in practice." That's different than looking at all the moving parts that sound so great. It sucks for all but the ones that get subsidies...nice for them but it was literally crippling for me, so I bailed on it and paid the fine...1/3 less than the payments would have been.

So maybe if looked at properly, the severability of something that didnt actually work (for many people) wont be as hard to overcome.

 

[Barnacle]

So are we closer to Medicare for all?

I hope not.

 

[Skeptic Bob]

I learned something new today. Thanks!

 

[Mr Person]

So are we closer to Medicare for all?

I don't see why we would be.

Removing the mandate penalty will really just drive up premiums via people dropping insurance, getting sick, and skipping the bill, causing the hospitals to recoup loss by raising fees for insured people. I don't know that that's particularly likely to make people want to switch to single-payer, at least, no the people who already understand it's the best overall way to go.

People who like screaming "socialism" at things aren't going to change their minds because of even higher premiums. In fact, they'll enjoy higher premiums in a typically perverse way: it'll give them yet another excuse to bitch about Obamacare even though it was their own team that exacerbated the problem.

 

[tres borrachos]

Another prominent ACA-hater, Philip Klein at The Washington Examiner, has a similarly sharp take on this absurd ruling today.

I hate Obamacare, but Texas judge's decision on its unconstitutionality is an assault on the rule of law

Another interesting article. Thanks for posting it.

 

[jaeger19]

The current ACA sucks 'in practice." That's different than looking at all the moving parts that sound so great. It sucks for all but the ones that get subsidies...nice for them but it was literally crippling for me, so I bailed on it and paid the fine...1/3 less than the payments would have been.

So maybe if looked at properly, the severability of something that didnt actually work (for many people) wont be as hard to overcome.

And that means that you don't have healthcare insurance.. and so if you get really sick.. it means the rest of us will have to pick up the bill. (unless you are tremendously rich).

 

[Nickyjo]

I hope not.

What would be the harm in that. Afraid we’ll become insufferably polite, like Canadians?

 

[Nickyjo]

I don't see why we would be.

Removing the mandate penalty will really just drive up premiums via people dropping insurance, getting sick, and skipping the bill, causing the hospitals to recoup loss by raising fees for insured people. I don't know that that's particularly likely to make people want to switch to single-payer, at least, no the people who already understand it's the best overall way to go.

People who like screaming "socialism" at things aren't going to change their minds because of even higher premiums. In fact, they'll enjoy higher premiums in a typically perverse way: it'll give them yet another excuse to bitch about Obamacare even though it was their own team that exacerbated the problem.

I guess it all depends on if this case survives. I assume it goes to the full court, then to the Supremes. Still don’t get why the GOP gets the vapors over Obamacare. It’s not communism like the VA, not socialism like Medicare...

 

[OscarLevant]

It'll definitely be interesting to see what will come out of this ****.

The only reason it was deemed constitutional was because Roberts advised to change the word "fine" to "tax".
Now that the tax part has been removed, there is really no standing anymore for Obamacare.

Yes, we know. however, This is a hot potato issue for repubs, and they know it. What you don't realize is that there is an perceived ominous force that will be levied against you if you are deemed the person who kills health care for 20,000,000 people.

Repubs will vote against it, but they only voted against it 60 times as a matter of protest, knowing in advance Obama would veto it every time. When it came time that they had a repub president, suddenly, they were unable to kill it. Funny thing happens to you when you suddenly realize you are going to cause some people to die for want of health care, you actually vote as voting was meant to be, not as a waste of governments time and tax dollars. But, repubs have no problem tying up congress, wasting taxpayer dollars, in their efforts to deny Obama any kind of legacy the public wants ( and they do want it, polls reveal ).

I assure you, a higher court will shoot it down, and if not, if it goes to SCOTUS, I doubt Kavanaugh will want to be the guy who kills health care for 20,000,000 people and without him, it's toast -- I doubt Roberts is going to reverse himself, especially in the face that with dems cure to take over on the horizon, they are going to restore the mandate.

This is a losing proposition for Repubs, a majority of Americans want this law to stand, and to be improved on. It's that simple.

ACA is here to stay. The only thing that will kill it is when it is replaced with medicare for all, or something similar. That day will come, then everyone will be covered, and the day when people suffer for want of health care will be over.

Free markets are great for many things, but they do not work well for Police, Fire, Defense, Health & Social Services.

 

[NotreDame]

Yes, we know. however, This is a hot potato issue for repubs, and they know it. What you don't realize is that there is an perceived ominous force that will be levied against you if you are deemed the person who kills health care for 20,000,000 people.

Repubs will vote against it, but they only voted against it 60 times as a matter of protest, knowing in advance Obama would veto it every time. When it came time that they had a repub president, suddenly, they were unable to kill it. Funny thing happens to you when you suddenly realize you are going to cause some people to die for want of health care, you actually vote as voting was meant to be, not as a waste of governments time and tax dollars. But, repubs have no problem tying up congress, wasting taxpayer dollars, in their efforts to deny Obama any kind of legacy the public wants ( and they do want it, polls reveal ).

I assure you, a higher court will shoot it down, and if not, if it goes to SCOTUS, I doubt Kavanaugh will want to be the guy who kills health care for 20,000,000 people and without him, it's toast -- I doubt Roberts is going to reverse himself, especially in the face that with dems cure to take over on the horizon, they are going to restore the mandate.

This is a losing proposition for Repubs, a majority of Americans want this law to stand, and to be improved on. It's that simple.

ACA is here to stay. The only thing that will kill it is when it is replaced with medicare for all, or something similar. That day will come, then everyone will be covered, and the day when people suffer for want of health care will be over.

Free markets are great for many things, but they do not work well for Police, Fire, Defense, Health & Social Services.

Politically, you may be correct.

However, your projection of what an appellate court will decide and why is not persuasive and missing a lot of information.

For instance, you say, “I doubt Roberts is going to reverse himself,” well this isn’t a case where he would have to if he agreed with the district court. This isn’t a question of whether Congress has the tax and spend power to enforce the individual mandate.

The case involved the individual mandate enforced by a tax and the issue of severability. The district judge had to first decide the constitutionality of the mandate. Essentially, the judge said the mandate was justified as a tax, see NFIB v Sebelius, and since Congress, by law, reduced the tax penalty to $0, then the law is no longer a tax. After all, according to the judge, an essential feature of a tax is the tax generates some revenue. Here, with the penalty set to $0, no revenue will be generated, so the law no longer operates or acts like a tax. Since the mandate was constitutional as a tax, and subsequent law set the penalty to $0, rendering the law as not a tax, then the individual mandate can no longer be justified as constitutional under Congress’s tax and spend powers.

That’s not a bad or irrational argument and could reasonably be expected to survive on appeal.

However, the issue of severability involved the question of whether the individual mandate is “essential” to the rest of the law. If yes, then the entire law is unconstitutional based on the unconstitutionality of the mandate. If the mandate isn’t essential to the rest of the law, then law is not unconstitutional on the basis the individual mandate is unconstitutional.

The judge’s reasoning for concluding the mandate could not be severed from the law, that the mandate is essential to the law, isn’t a very strong argument. There is a reasonable expectation this may be reversed.


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[OscarLevant]

Politically, you may be correct.

However, your projection of what an appellate court will decide and why is not persuasive and missing a lot of information.

For instance, you say, “I doubt Roberts is going to reverse himself,” well this isn’t a case where he would have to if he agreed with the district court. This isn’t a question of whether Congress has the tax and spend power to enforce the individual mandate.

The case involved the individual mandate enforced by a tax and the issue of severability. The district judge had to first decide the constitutionality of the mandate. Essentially, the judge said the mandate was justified as a tax, see NFIB v Sebelius, and since Congress, by law, reduced the tax penalty to $0, then the law is no longer a tax. After all, according to the judge, an essential feature of a tax is the tax generates some revenue. Here, with the penalty set to $0, no revenue will be generated, so the law no longer operates or acts like a tax. Since the mandate was constitutional as a tax, and subsequent law set the penalty to $0, rendering the law as not a tax, then the individual mandate can no longer be justified as constitutional under Congress’s tax and spend powers.

That’s not a bad or irrational argument and could reasonably be expected to survive on appeal.

However, the issue of severability involved the question of whether the individual mandate is “essential” to the rest of the law. If yes, then the entire law is unconstitutional based on the unconstitutionality of the mandate. If the mandate isn’t essential to the rest of the law, then law is not unconstitutional on the basis the individual mandate is unconstitutional.

The judge’s reasoning for concluding the mandate could not be severed from the law, that the mandate is essential to the law, isn’t a very strong argument. There is a reasonable expectation this may be reversed.


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The weight of killing health care for 10s of millions will influence the ruling by anyone with a modicum of compassion. Laws and circumstances can be interpreted in more than one way, and more than one law can be found to apply, that's my gut feeling on it, anyway.

So, in the face of technicalities, compassion will find a way to influence the judge's ruling, that is, if there is compassion. Sometimes there isn't. I doubt it's there for Gorsuch, Thomas, Alito, etc, but Roberts and MAYBE Kavanaugh, there is, or one would hope. My gut feeling is that Robert's using the "tax" angle to justify ACA, was compassion influencing his ruling, i.e., he looked for a way to approve it, and found a path, viola, the tax angle.
So, without it, will SCOTUS find another way to justify making ACA constitutional? I don't know. One can only hope they will do the right thing.

Justice is the right thing to do.

 

[Mr Person]

I guess it all depends on if this case survives. I assume it goes to the full court, then to the Supremes. Still don’t get why the GOP gets the vapors over Obamacare. It’s not communism like the VA, not socialism like Medicare...

Because it's an easy way to pretend to stand for principle. If there's one thing the GOP and its base loves, it's putting on a big show of standing on principles that aren't actually held. Here, it's an alleged "right not to be made to buy a product".

Of course, definitions of all the other rights tend to take account for where exercise conflicts with someone else's right(s). They ignore that.

 

[Nickyjo]

Because it's an easy way to pretend to stand for principle. If there's one thing the GOP and its base loves, it's putting on a big show of standing on principles that aren't actually held. Here, it's an alleged "right not to be made to buy a product".

Of course, definitions of all the other rights tend to take account for where exercise conflicts with someone else's right(s). They ignore that.

True. And I also think that in part, some small government conservatives think, "Good grief, they have used Social Security against us, then Medicare. Now here is another huge entitlement we can't defend and will have trouble attacking. Gotta nip it asap." They my already be too late, however.

 

[Lursa]

And that means that you don't have healthcare insurance.. and so if you get really sick.. it means the rest of us will have to pick up the bill. (unless you are tremendously rich).

Really? That meant I didnt have health care insurance? Are you sure? :doh

It all came down to almost zero in services for my thousands in premiums until it was catastrophic...at which point it ends up the same. It was cheaper to see a doc on my own, if I needed to, for anything else, and I have AFLAC.

 

[Deuce]

It'll definitely be interesting to see what will come out of this ****.

The only reason it was deemed constitutional was because Roberts advised to change the word "fine" to "tax".
Now that the tax part has been removed, there is really no standing anymore for Obamacare.

Do you really think the word "tax" was the only thing making the entire bill constitutional?