December 15, 2018

Here's the argument... in a nutshell.

52 comments:

gspencer said...

Mandate - it's the Democrat way. Because we're unable to persuade people with the scope of our arguments, we'll use force, such as a mandate, to accomplish our goals of having more and more government.

Achilles said...

We are ruled by judges. The judiciary has become a corrupt political arm.

This judge is just stating the obvious. The federal government cannot force a person to buy a private product.

The leftists ignore clear language to grow their living document.

Bay Area Guy said...

Texas judicial payback for all those renegade Calfornia judges...

The Godfather said...

The argument as I understood it when O-care was adopted was that the system wouldn’t work economically unless healthy young people were forced to buy insurance at rates higher than needed to cover their own exposure to medical expenses, in order to support insurance for others, such as those with pre-existing conditions, at affordable rates. If so, now, without the mandate O-care won’t work economically. But does that make it unconstitutional? And, if so, isn’t Social Security unconstitutional, too?

Oso Negro said...

Let the little people blow! Beto will deal with them later.

Ann Althouse said...

"Mandate - it's the Democrat way. Because we're unable to persuade people with the scope of our arguments, we'll use force, such as a mandate, to accomplish our goals of having more and more government."

The mandate was repealed by Congress. Start your argument after the repeal.

Narayanan Subramanian said...

Why make severability Crux of constitutional?
If not sustainable by tax power, ACA fails under resurrected or exhumed commerce clause on revisit to Supremes.

Jack Wayne said...

The fact is that TSCOTUS will rule whatever way they want. The best part will be that no matter which way they rule, they will be right. It’s better than being the Pope!

Narayanan Subramanian said...

Was Roberts' Supremes inviting for revisit for ACA?
Is he under pressure/blackmail still?

chickenlittle said...

Suppose Congress ignores healthcare and choses instead to focus on impeaching Trump? What are the odds?

Fernandistein said...

"Individual Mandate is inseverable from the entirety of the ACA"

The important point is that the ACA would be Constitutional if the Constitution had some words like "Individual Mandates are severable from the rest of Federal health insurance laws."

But first the Constitution would need terms like "individual mandate" and "health insurance."

EDH said...

However, he notes that many NFIB amici now take a different position. "But that was then, and this is now."

Is that judicial estoppel (as applied non-party amici)?

In the practice of law, judicial estoppel (also known as estoppel by inconsistent positions) is an estoppel that precludes a party from taking a position in a case that is contrary to a position it has taken in earlier legal proceedings. Although, in the United States, it is only a part of common law and therefore not sharply defined, it is generally agreed that it can only be cited if the party in question successfully maintained its position in the earlier proceedings and benefited from it...

The principle was used in 2001 by a unanimous U.S. Supreme Court in the Piscataqua River border dispute, in which New Hampshire argued that the Portsmouth Naval Shipyard was in New Hampshire after having previously joined a consent decree that agreed on a border that would put it in Maine.

Jupiter said...

The Trump administration has announced its intention to cease enforcement of the mandate. Since the mandate was justified as a tax, that is well within the Executive's purview. But at this point, the "health insurance industry" is a wholly-owned subsidiary of the federal government, propped up by subsidies on one side and the mandate on the other. With the mandate removed, the system must collapse, unless the subsidies are increased to the point that the system becomes de facto single payer. This is exactly what many, but not all, of the architects of Obamacare intended all along. But that increase of subsidies is not a done deal. The collapse is also very much a possibility, with a death spiral of cancellations and rate hikes. It would appear that this ruling is intended to hasten that collapse, by spreading FUD (Fear, Uncertainty and Doubt). And it may be successful, even if it is ultimately overruled. Much of the modern judiciary is unconcerned with the law, except as a pretext for advancing a personal agenda.

rhhardin said...

It's not insurance at all so nothing will make any sense in the arguments.

Yancey Ward said...

The mandate wasn't repealed- the penal.....er tax was reduced to zero. You are still legally required to buy the insurance, but with no enforcement.

Like I wrote in the previous thread- it is likely that Roberts will declare the mandate unconstitutional now that there is no levy to define as a tax. However, I do think he will agree to sever the law from GI and CR, but that won't save Obamacare because it is an opening to sue the federal government for the financial losses incurred because GI and CR are being enforced without the mandate bringing in the cash cows of the young and healthy.

The exchanges were always going to fail financially because the original mandate wasn't strong enough even before Congress repealed the penalt.....er tax. You can't really run these exchanges without it because of the adverse selection issue. This is why Obama and his administration argued in 2012 and after that the mandate couldn't be severed from the law- it was a necessary evil to make GI and CR financially stable laws to enforce on the insurance industry.

Tommy Duncan said...

"In a 55-page opinion, U.S. District Judge Reed O’Connor ruled that last year’s tax cut bill knocked the constitutional foundation from under “Obamacare” by eliminating a penalty for not having coverage. The rest of the law cannot be separated from that provision and is therefore invalid, he wrote."

To ask a silly question: Which is actually unconstitutional, Obamacare or the tax cut bill?

narciso said...

Except more and more exchanges were collapsing because the plan was unsustainable.

Yancey Ward said...

Someone took issue in the previous thread to my claim that Obama himself never enforced the mandate- what I wrote is true- there were wide exemptions applied that allowed one to avoid being assessed the penalt......er tax. I applied those exemptions every single year the ACA has been active myself. And even if you weren't able to get that exemption, you could avoid the penalt....er tax by simply reducing your withholding rate so that you did not get refund. There were no additional penalties for not paying the tax- a finagle that was required to get it by Roberts the first time through.

Chuck said...

Thank you for this post Althouse. Despite your general disinterest in blogging issues of health care reform, I think you very much appreciate the magnitude of this problem.

Won’t it be ironic if somehow the Democrat-controlled House of Representatives seeks to intervene in this litigation in 2019? That kind of legislative intervention is what Michigan and Wisconsin legislators are trying to preserve in their respective lame duck sessions.

PB said...

Democrats are very flexible. They'll argue the exact opposite.

PB said...

Of particular note is that the original legislation failed to include any severability provisions as is customary so that if any provision is struck down the remainder of the act remained in force. Proof of the sloppy arrogance of the authors.

Yancey Ward said...

PB,

It isn't proof of arrogance- no provisions for severability were written in because the mandate was necessary for GI and CR to work financially. It was a recognition of reality. However, your earlier comment is correct- reality won't stop the Democrats from changing their positions on a dime.

Diogenes of Sinope said...

Make all health insurance subsiies illegal.

Chuck said...


Blogger Yancey Ward said...
...
...reality won't stop the Democrats from changing their positions on a dime.


Just like Trump.

SDaly said...

I didn't read the prior thread on this, but as I understand it, when Congress amended the act to remove the mandate, that action by Congress demonstrated that the mandate was, in fact severable (and severed!). As precedent on the severability issue, King v. Burwell was superseded by Congress's action.

narciso said...

Of course they want to reimpose the taxes the mandate everything else but they don't have the Senate and a sliver thin majority in the house, if they can trick some republicans... well there are fewer Marks there

Chuck said...

So when Trump is urging “Nancy and Mitch” to “get it done,” what is he talking about? What exactly does he want for hem to enact?

Darkisland said...

Blogger The Godfather said...

And, if so, isn’t Social Security unconstitutional, too?

No because it is structured differently. Unlike the Obama admin, Frances Perkins, sec commerce under FDR, realized that they couldn't just ignore the constitution. Had Obama & Co visited the Social Security website, they might have found this anecdote that would have shown them how, legally and constitutionally, to impose Obamacare:

At one point in the afternoon Secretary Perkins found herself seated next to Justice Stone, and in their small talk he inquired as to how her work was going. The Secretary freely admitted they were stuck on the Administration's new Social Security bill, and were uncertain on what basis the new program should be founded. Upon hearing this, the Justice looked around to see if anyone was listening, leaned over to her, and putting his hand up to his mouth, whispered, "The taxing power of the Federal Government, my dear; the taxing power is sufficient for everything you want and need." The Secretary excitedly returned to her staff and announced she had made up her mind, they would base the new program on the government's power to tax. (She never told them how she had finally come to this insight.)

https://www.ssa.gov/history/tea.htm

Read the whole thing. Had Obama & Co simply imposed federal medical care on everyone, it would have been legal and constitutional under the Constitution's welfare clauses.

Had they also imposed a payroll tax or simply boosted the SS tax, unconnected (koff, koff) to the medical, that would have been Constitutional and legal because COngress has unrestricted power to tax for any reason.

Roberts seems to have realized this which is why it is so important that the premiums be categorized as a "tax".

SS is simply a welfare scheme not tied to tax payments in. That is why they could means test it, why your benefits are not really tied to your payments in and why SS can no more "run out of money" than the Army or Food Stamp program.

That tea party story has been on the web for at least 20 years and was likely widely available in books and such before that. It's never been a secret. When Obamacare was being cooked up I kept my fingers crossed that nobody would notice that. If they did, they kept quiet, Thank God.

John Henry

Darkisland said...

Blogger Diogenes of Sinope said...

Make all health insurance subsiies illegal.

Certainly at the federal level.

Make all employer health care subsidies taxable as income to the employee, just like every other benefit is.

The company gives you a Thanksgiving turkey? Legally they are required to report the value ($20 or so) on your W-2 and you are supposed to pay income tax on it. Health care and a small amount of term life insurance (1X earnings, I think) are the about only benefits that are legally exempt from this requirement.

The IRS has a policy of not enforcing things like the turkey, but the law says they are supposed to.

John Henry

Paul Zrimsek said...

Blackman's point 25 undermines his entire argument. If Congress had no right to repeal the individual mandate, then a fortiori it had no right to repeal the entire ACA. If reducing the tax to zero effectively repeals the entire ACA, the only possible conclusion is that that part of TCJA is unconstitutional.

grimson said...

Darkisland: Health care and a small amount of term life insurance (1X earnings, I think) are the about only benefits that are legally exempt from this requirement.

In order to make any major changes in health insurance, we need the political support to do so. Step 1 would be to require all W-2's to start reporting how much employers are spending on the employee's health insurance.

Most employees have no idea; once they see how much of their total compensation is going to health insurance, they might become more interested in significant change.

chickenlittle said...

Most employees have no idea; once they see how much of their total compensation is going to health insurance, they might become more interested in significant change.

That sort of transparency would be a good thing, tho I can think of one very good reason why employers don't disclose this sort of thing.

n.n said...

Obamacare is not viable, it is a progressive burden, and should be aborted.

That said, the issues are two-fold. One, are the limits of affordable and available driven by cost, then payer-oriented reforms are warranted. Two, are the limits of affordable and available driven by pricing, then provider-oriented reforms are warranted. The problem with Obamacare is that there is evidence of the latter, then shared responsibility is irresponsible, and enforced without choice.

Mark said...

What's the point of the nutshell? Non-severability was a major point when ObamaCare was before the Supreme Court.

H said...

I agree with those who thank Althouse for including this and her own expert comments. I also appreciate the well informed commentariat: I learned something from John Henry at 1:27. I'm not a lawyer or constitutional scholar, but I recollect that the original program of agricultural subsidies in the agricultural adjustment act was found unconstitutional because it was funded using a charge on farmers; that constitutional flaw was corrected by repassing the law with provisions that funded the subsidies through the normal taxation provisions. This seems relevant to the current ACA debate. Overall, the posting here makes me less inclined to defer to the early commentary along the lines of "obviously, this judge is off his rocker, and can't overturn things I like" and more inclined to think that there are some actually difficult and subtle arguments to made on this.

Earnest Prole said...

Apparently House Democrats and Republicans are Constitutionally illiterate. Who knew?

Drago said...

You can just see LLR Chuck gearing for his next full-throated defense of Pelosi and Schumer!

LOL

Chuck said...

I now see more blather from Trump today on his way to Marine One, on how he is going to work with Democrats and Republicans to come up with a law that will provide “great care.”

Is this going to be like NAFTA, where Trump called the old deal the worst in history, and promised a fantastic new deal, and in the end just tweaked and updated the original, slapped a new name on it, and claimed it as a personal success?

That is what my general expectation is now. Actually, that would be the best case scenario. My more realistic expectation is that Obamacare litigation continues in the federal courts until a larger crisis comes about, and that Democrats will use the issue to their advantage in 2020. With Trump having nothing to show after four years including two years of House and Senate majorities.

walter said...

So sounds like think this issue will be yet more detriment to Trump in 2020.
So..gettin' what ya want there Chuck..
Cheers!

walter said...
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walter said...

And that could help Kasich..the get it done guy:
Ohio Gov. John Kasich (R) took aim at Congress on Friday after a seven-year-old migrant from Guatemala died while in U.S. custody of dehydration and shock.

In an interview on CNN, Kasich blamed Congress for inaction on immigration reform, which he said was exacerbating the immigration crisis on the southern border.

"Shame on the Congress," Kasich said. "Comprehensive immigration strategy was needed."

"The answer is not just 'don't come,' " he continued. "Because these people are going to come."

(Btw, his Dad worked for the post office)

Kylos said...

Prof. Althouse, as I read the thread, the crux of the decision is that congress did not repeal the mandate but repealed the shared responsibility penalty so the mandate still stands but now is not constitutionally justifiable because those buying insurance are no longer simply a class exempt from paying tax. Now that everyone is required to buy insurance, the ACA can be attacked on commerce clause grounds. Or is the whole individual mandate/shared responsibility tax a distinction without a difference?

Hunter said...

But surely it is constitutional under the Good and Welfare clause?

The Godfather said...

I understand why a lot of conservatives and libertarians got all hot and bothered about the mandate to buy health insurance, but it turned out to have been a tactical error to focus on that aspect of Obamacare. What's really wrong with Obamacare is that it dictates and restricts the kind of insurance coverage people are allowed to buy. It would be rational for young, healthy people to pay their own routine medical expenses and to buy insurance only to cover major, catastrophic expenses. It would be rational for older people to buy insurance that doesn't cover pregnancy, child birth, and pediatric care. Obamacare doesn't allow these decisions. A rational post-Obamacare discussion ought to focus on returning choice about medical insurance to the people.

And a rational post-Obamacare discussion ought to recognize that providing health care for people who didn't buy health insurance before they got sick is NOT an insurance issue. It's a welfare issue, and the governments, federal, state, and local, need to step up to the plate to deal with it.

walter said...

Godfather,
The problem with one size fits all plans was certainly put forth.
Meanwhile "welfare" was increased with broadened medicaid inclusion.

Hagar said...

I think it is more than a "welfare" issue. For one thing, your medical provider is going to listen to whoever pays him, which is not you with your $10 co-pay.

johnhenry100 said...

Hunter,

That was Harlan Stone's point.

Social security payments are certainly constitutional under the welfare clause. Govt provided (or paid) health care would be too.

And,

Congress has pretty much unlimited powers of taxation.

So an income tax, like ss tax is fine too.

What they can't do is connect the two.

Read the Perkins anecdote.

John Henry

johnhenry100 said...

Suppose a person earns $15 per hour.

Suppose their employer pays $4000 per year for health plan.

That is $2 per hour.

A year the premiums go to $6000 or $3/hr

The person is still being paid $15/hr

Did they get a $1/hr raise?

*assume 2000 working hours per yr and ignore tax effects.

John Henry

narciso said...

the plan was designed by a excon radical activist, Robert creamer, it was purposely misconfigured like Frankenstein's monster, the choice of plans, the priorities for treatment, which created a perfect storm which exacerbated adverse selection, and hence increased premiums and deductibles,

Hagar said...

In England I think it is still possible to get individual "disaster" insurance and see private doctors - if you can afford it after paying the taxes to support the NHS - so that at least you can get timely treatment.
Since Congress in this country has chosen to sort of nationalize the insurance industry and try to run the healthcare providers second-hand from there, I do not know if that will be possible here.

I guess there will be rogue doctors going cash only, but if anything serious happens, you are SOL.

Russ said...

> In order to make any major changes in health insurance, we need the political support to do so. Step 1 would be to require all W-2's to start reporting how much employers are spending on the employee's health insurance.

Go look at your latest W2s. You have a value for employer provided healthcare (non-taxable)

Road Clutter said...
This comment has been removed by the author.