ADDED:
As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!
— Donald J. Trump (@realDonaldTrump) December 15, 2018
MORE: Continue the discussion at this new post which briefly shows how the judge's argument worked. The key issue is severability.
Posts
74 comments:
Actually it will Ann. The DOJ surely won't push to have it thrown out and SCOTUS does NOT HAVE TO TAKE THE CASE.
Thus it might stand and Trump finally keeps his promise on this.
Why won't it hold up?
Funny, when some distant judge ruled on the travel ban it was some far flung peon with a decision guaranteed to be overturned.
But when the shoe is on the other foot ....
Hey Mark, I was going to comment on the travel ban also, but you beat me to it. Neither are good, and neither should stand. Both are bad for the republic.
It's time for national haircut insurance.
"This won't hold up"
Probably right. Since today words in a statute don't mean what they plainly mean.
As part of a tax overhaul a year ago, congressional Republicans pushed through a change in which that ACA penalty will be eliminated, starting in January. The lawsuit argues that, with the enforcement of the insurance requirement gone, there is no longer a tax, so the law is not constitutional anymore.
It sounds pretty solid to me. Send it back to Congress and make those critters do their job
Why did premiums go down in some cases, in part because the mandate was gone.
the FUN PART is; now Nancy and Smucky Schumer will get to Put Up, or Shut Up
“Funny, when some distant judge ruled on the travel ban it was some far flung peon with a decision guaranteed to be overturned.
But when the shoe is on the other foot ....”
Oh the naked hypocrisy...ew.
That is what happened in Wisconsin lamr duck session even the Democrats flaked.
It is hard to argue that it is not ludicrous to be forced to buy something you cannot use (Children's preventive dental insurance for childless people, sex specific care even if you are opposite, etc). Big Pharma and the insurance industry are rolling along while patients and providers are suffering. (The latter enough to be quitting in droves). PERIOD!!!!!!
Take that Hawaiian judge!
narciso said... Why did premiums go down in some cases, in part because the mandate was gone.
Mine is going to go down about $42 and there are (now!) 2 (2!) companies to chose from, instead of 1
There you go again covering a Trump tweet and not giving equal time to George Takei.
After the Kennedy weasel words to put it into place I figured the supremes can rationalize any decision.
The fact Ann’s highly confident it won’t hold up makes me suspect it will.
People paid more money for worse health insurance. Politicians screw up everything they touch. What makes Democrats worse than Republicans is that Democrats are more interested in touching lots of things, and they are less likely to admit it when it turns out that they screwed up.
That is not to impugn Ann’s knowledge of con law but the recent history of SCOTUS tomfoolery.
What Althouse is arguing is that the Constitution gives Congress and the government full power to implement “taxes”. As the Constitution does not address the question if a tax MUST be greater than zero, TSCOTUS could easily interpret the Constitution as implying that a tax can be negative, zero or positive......
"In a move that stunned many congressional Republicans, the Justice Department also asked the court to invalidate key planks of the ACA. Those provisions include consumer protections such as the prohibition barring insurers from denying coverage to people with pre-existing conditions." WSJ
IF the Justice department is Already on the invalidate ACA side, isn't this going to be like O'Bama's DOJ and the Defense of Marriage law? If Trump's DOJ doesn't support the law, HOW could this judge's ruling NOT stand? I'm Really asking, 'cause i didn't do the reading
I think that the best way of overcoming this decision is to reject standing. The problem on the other side is that the Supreme Court rejected Obamacare under the Commerce Clause, but affirmed it based on their redefinition of the individual mandate being a tax, legitimate under the Taxing Power. Well, with the abolitionion of the individual mandate, there is no longer a tax, so it can no longer be justified under the Taxing Power. So, where does Congress get the power to enact Obamacare if not under the Commerce Clause or the Taxing Power?
“IF the Justice department is Already on the invalidate ACA side, isn't this going to be like O'Bama's DOJ and the Defense of Marriage law? If Trump's DOJ doesn't support the law, HOW could this judge's ruling NOT stand? I'm Really asking, 'cause i didn't do the reading”
I expect that the Democratic House majority next session will try to intervene on behalf of the constitutionality of Obamacare.
Contra the implication of the President's tweet, providing or paying for medical care for people without health insurance is not an insurance issue, it's a welfare issue.
Insurance deals with uncertainty: who will get sick, how sick, and when? If you're already sick when you buy the policy, much of the uncertainty is gone. You can't buy auto accident insurance after the accident, or life insurance after the funeral. Still, in the recent elections you heard political ads by Democrats attacking their Republican opponents for "discriminating" against people with pre-existing conditions.
The idea of the Obamacare "mandates" was to force everyone to buy health insurance or every employer to provide it. If everyone has health insurance coverage the pre-existing conditions problem is substantially reduced.
If the individual mandate is gone (and reducing the Roberts "tax" to zero has that effect), then the Obamacare scheme won't work anymore. People who aren't sick yet won't have to buy insurance, and then when they get sick they'll have the right to be covered. And the program will collapse unless the government picks up the cost of covering those who didn't get insurance before they got sick.
So if you want to deal with the problem of people who don't or can't buy insurance until they're sick, then the government (state or federal) has to pay for it as a welfare benefit.
A court that can make a penalty a tax, even when Congress and the government denied it was a tax, can sever the unseverable.
I mean, they found SSM in the substantive due process. Anything goes. But even if "this won't hold up," it will be fun to see them squirm.
The thing that irritates me about the ACA is this.... it was important enough to pass a law to create "universal coverage" (if it really does), but those of us actually on the exchanges aren't enough of a constituency that they pay attention to our problems with it.
Are your premiums really high? So what.
Are your deductibles out of this world? So what.
Do you only have 30 days in the case of a life event to get new insurance? Big deal.
Do you not have a good idea what your yearly income will be during open enrollment? Huh.
Do you have to switch each year because your doctor changes or you can no longer pay those premiums? Can't help you.
The Democrats don't care, but for whatever reason they take great pride in what they created. It sounds good, but they don't know anything about how it affects real people (except for preexisting conditions, which is why that's what the whole 2018 election was about)
People who aren't sick yet won't have to buy insurance, and then when they get sick they'll have the right to be covered. And the program will collapse unless the government picks up the cost of covering those who didn't get insurance before they got sick.
I don't think that's right.
One problem with the ACA is that it has an open enrollment period, as a way to keep people from buying insurance after they are sick. So if you are diagnosed with diabetes in February, you aren't getting insurance until January.
On the other hand, if you finally feel like you have enough money in March to get insurance, you can't get a full insurance plan again until February. If you move to a new state in June and forget to get insurance by July, you won't be getting another full policy until January.The Trump administration at least relaxed the rules on short term insurance plans, so a healthy person can buy insurance in March-- it just isn't ACA compliant.
But in this country, if you are sick you will be treated. If you need chemo, you'll get it. You might not get a transplant, but if you are in an accident they will treat you. And then everyone sorts out the payment.
I wonder whom the Court of Appeals will appoint to defend the Government's position here, because I bet the Solicitor General's office won't be doing that. Of course, if the AG were being particularly crafty, he'd have the SG take the appeal and do a half-assed job of it.
If you follow Roberts' logic from the 2012 decision, you can predict what is going to happen at SCOTUS if this case is pushed to that level:
Roberts upheld the mandate under the taxing power of the government, not the commerce clause. He wrote that it would otherwise be unconstituional. To make this explicit, Congress could have passed the ACA by making the mandate enforceable by jail time rather than a financial penal......er, tax. Roberts own words demonstrate that would have been an unconstitutional approach. So, with the tax being set to zero- all you are left with is the mandate to buy insurance. I predict today's case will reach SCOTUS within 2 years and the mandate as structured today will declared unconstitutional because it is clearly no longer a tax, but a legal direction to purchase insurance. That decision will align the law with the reality.
However, the mandate will be severed where possible. The problem, though, for the government going forward is going to be that without a mandate, or even a mandate that isn't being enforced, the insurers will have an opening to file lawsuits to recover the costs incurred at providing insurance designed with a enforceable mandate as a key financial backstop, but with no mandate present today.
The penalty was basically never enforced even by Obama, so Congress setting the penalty to zero was an acknowledgement of reality. However, the mandate did provide a legal cover for several of the other changes to the insurance package. That cover is now gone as far as enforcement goes, and SCOTUS will get rid of the mandate in name when today's case reaches it. At that point, the law will face a series of financial lawsuits that the government is likely to lose.
I will make another prediction, though- with today's decision, the Left will find a judge somewhere in the 9th Circuit to issue an injunction declaring that the penalty has to go back to the way it was before Congress zeroed it out.
Roberts reasoned himself into a box canyon on this one, but surely the legal creativity that got him into this fix will get him out.
Why would you think it wouldn't hold up? The Fifth Circuit, due to its composition, is more likely to agree with the district court judge than not, which would leave it to the Supreme Court to intervene. The Court almost certainly has at least 4 votes to uphold this ruling, and it is a fair question whether John Roberts wants to invalidate his opinion from just a few years ago and twist himself into knots to save the law now that Obama is no longer in office.
The logic seems fairly straight forward. Obamacare was saved the first time because the individual mandate was ruled an exercise of the taxing power. This judge has ruled that since Congress itself removed the levy associated with the mandate, a tax without a levy is not a tax and therefore the taxing power no longer upholds the mandate.
If this ends up before the Supremes again, John Roberts has a tough road. If he insists a $0 tax is a tax, Congress can in practice mandate anything by inserting a $0 tax penalty for failure to comply. If he goes with the Commerce Clause theory he rejected last time, he contradicts his own prior ruling not yet a decade old. If he opts for a third way, then he would be tacitly admitting the entire taxing power argument he came up with was unnecessary and comes off as a man who decided the result and is torturing reason to get there.
Obamacare became unconstitutional when Chief Justice Roberts turned a national health insurance into tax legislation, which was never the intent of the Democrats in Congress or the Obama White House. Had the intent been to treat mandatory insurance premiums as a tax, the Dems are at least smart enough to start the tax legislation in the House of Representatives, as required by the Constitution.
The Left wants to cherry pick judges to do lawfare, that's okay. We can do that too.
Do ANY of you Lefties see how these violations of mos maiorum are incredibly damaging and not just speed bumps to keep you from 'winning'?
No? Okay. So we do this the hard way.
I expect that the Democratic House majority next session will try to intervene on behalf of the constitutionality of Obamacare.
So, the Democrats are going to waste all their time trying to impeach a president against the will of the people OR they are going to waste their time trying to defend a WILDLY unpopular healthcare bill they rammed down everyone's throats?
What fun!
The judge says it’s not necessary to show an economic injury. Ok. But there does have to be some kind of injury. What might that be if not a fine or fee?
Blogger Mark said...
Funny, when some distant judge ruled on the travel ban it was some far flung peon with a decision guaranteed to be overturned.
But when the shoe is on the other foot ....
There’s nothing hypocritical about living in the world as it is even as you argue the world should be different. The people shouting about the chaos caused by sone distant judge did not carry the day. But you knew that.
"It is hard to argue that it is not ludicrous to be forced to buy something you cannot use (Children's preventive dental insurance for childless people, sex specific care even if you are opposite, etc). Big Pharma and the insurance industry are rolling along while patients and providers are suffering. (The latter enough to be quitting in droves). PERIOD!!!!!!"
Yeah, but the individual mandate is what Congress repealed. There was a tenuous ground for upholding it -- the tax power. But that is gone now. What this judge did is invalidate everything else, but everything else is supported by the commerce power.
Ha. Came back here just to see if Althouse returned with her answer, and she did. Probably right that the commerce power, AS INTERPRETED BY OUR COURTS, does support it. I doubt this is what our founders had in mind.
This is more shadow boxing, but in time Obamacare will invalidate itself, I think, simply because it cannot work.
In the first place, it is not medical insurance, but a scheme for prepaid healthcare for all paid for by taxes masquerading as premiums, and the thing was supposed to go by itself since a government takeover would be "socialism," which is "un-American," and patently handing it over
to the actual beneficiaries, the health maintenance organizations (HMOs) would be a giant
"give-away to private industry," which indeed is what it is.
I think Nancy Pelosi really did not know what was in the legislation, and neither did Harry Reid, though it reportedly was put together in the back of his Senate majority leader's office, but by this Gruber person and lawyers and lobbyists for the HMOs with no input from the medical industry or even the politicians. The doctors were not asked, and the politicians did not care because they always intended for the system to fail and have to be taken over by the government.
"The penalty was basically never enforced even by Obama"
What?? Plenty paid in their tax return re ns. You saying those who didn't never got letters from the IRS about it?
I wonder if this means the penalty can be blown off for 2018? Being that district courts seem to rule for the whole country now.
Lots of fine hard-working people would be happy to get their full refunds again.
Ann, I haven't gone back to check, but I thought Roberts said everything else was not supported by the Commerce Clause.
I don't know anything really about the commerce power, but it seems weird that would be the thing to support the legislation when it is by law not allowed to be bought across state lines.
@MayBee
Yes, you don’t know how the clause has been INTERPRETED.
Ann Althouse said...
Yeah, but the individual mandate is what Congress repealed. There was a tenuous ground for upholding it -- the tax power. But that is gone now. What this judge did is invalidate everything else, but everything else is supported by the commerce power.
I think you are correct, but it is worth discussing the severability issue.
If the mandate had been declared unconstitutional in the original case, then the whole law should have been thrown out, because there was no severability clause, and the mandate was a key element of the law's design.
However, severability no longer works. Since Congress amended the law to remove the penalty, but did not repeal the rest of the provisions, Congress itself severed the link between the mandate and the rest of the law. Throwing out the mandate that had no penalty does nothing to the working of the remaining provisions.
Paul said...
Actually it will Ann. The DOJ surely won't push to have it thrown out and SCOTUS does NOT HAVE TO TAKE THE CASE.
Thus it might stand and Trump finally keeps his promise on this.
No, that one is a promise that Trump is farther than ever away from keeping. Trump promised "repeal and replace." He never got that done; never even got close. (The Senate vote where John McCain gave his thumbs down vote wasn't even a true "repeal" vote, and wasn't anything like a "replace" vote.
When it comes to healthcare laws and reform, Trump is shamelessly clueless.
But then; LOL Trump on federal judicial decisions! When he loses, federal judges are "so-called judges" and "Obama judges." When he wins, it is all about constitutionality. To top it all off, Trump tells "Mitch and Nancy" to "get it done" to provide great care and protect pre-existing conditions. What the hell does Trump even have in mind on that? How does he propose to cover pre-existing conditions, without an individual mandate? What is his definition of GREAT CARE?
Hard to invoke the Commerce Clause when it is illegal to sell insurance across State lines.
Your salary is the total cost to your employer of employing you and all deductions from your paycheck mandated and enforced by the government is a tax.
This certainly is realized if you are self-employed, which apparently is not too many of the commenters hereon.
When you hear Obamacare, think Edsel.
The Commerce Clause is the American legal system's rented mule.
Actually, this might be a chance to get Obamacare right.
Nancy P was right when she said we had to pass it to see what was in it. Now we know, and much of it isn't very good.
It almost makes me glad that the Democrats won the House. This time, they will have to get Republican buy in by virtue of a Republican Senate.
In short, they will have act like adults.
There are some good things that could be implemented like allowing purchase across state lines, offering stripped down catastrophic policies, and high risk pools for those with pre-existing conditions.
Let's see if the Democrats can put their TDS behind them and get something done.
"So, the Democrats are going to waste all their time trying to impeach a president against the will of the people OR they are going to waste their time trying to defend a WILDLY unpopular healthcare bill they rammed down everyone's throats?"
The reason that I suggested that is that Nancy Palsy will again be Speaker, and a number of her leadership cadre will be back in their old positions. This and the Porkulous spending bill were the signature legislative accomplishments of her Speakership. A smarter leader, like, for example, Chuckie Schumer, would know that this wasn't a hill that he wanted to die upon. I really don't think that she is that smart. And the people in the House around her don't seem to be either, and seem as ossified, if not more so, than she.
In a side note, this brings up an interesting situation that I expect the Democrats to face in a couple years. Their caucus in the House, in particular, has become quite bifurcated. They have an ossified leadership, either pre-Baby Boomer, or early Boomer, and the newer members seem to have gone off the deep end to the left. Many seem just one step shy of openly espousing socialism. My guess is that a lot of that ossified leadership really got their start in the Watergate class, which seemed so progressive at the time. In both cases, it is the pig in the python thing. This last election, they bought and cheated themselves into a bigger freshman class than they have seen in decades, maybe since Watergate and the Vietnam War brought that big class to Congress over 40 years ago. Speaker Palsy and her Medicare recipient leadership will, no doubt, try to keep the pending leftward lurch of their caucus under wraps as long as they can. And that might work if so many hadn't come into office propelled by leftist billionaires out to destroy Trump. We know from Occasional Cortex though that they aren't going to be quiet. It should be quite interesting.
It was a long time ago, but I think that until the 1950s Americans paid their taxes in quarterly installments, and then Congress passed legislation to have estimated taxes deducted from every paycheck over Eisenhower's objection. He said this would lead to people just looking at the net number on the check and not realize how much they were paying in taxes. He was exactly right; people even think it does not matter - that it is the employers who pay the taxes and not them.
But it is them. The employers are just middlemen.
Bruce Hayden your comments above about the Democrats' problems with a divided party are good ones. I see it the same way.
And it gives me hope, for the post-Trump Republican Party.
It is not "socialism." Socialist go to school and learn their 3 R's.
These people watched "Star Trek" rather than do their homework and think "Star Trek" was for real.
You expect anything to come out of a Pelosi Congress get real.
Any repeal vote would have provided a guideline to replacement, duh
If a judge in Hawaii and strike down whatever, a Judge in Texas can too.
There is no "replacement" possible for "pre-paid healthcare for all" other than a full National Healthcare System.
"Those provisions include consumer protections such as the prohibition barring insurers from denying coverage to people with pre-existing conditions."
-- Just as a reminder, that is one of the provisions that would have survived if passed as a stand alone bill.
"What this judge did is invalidate everything else, but everything else is supported by the commerce power."
-- Did they ever go back and fix the lack of severability clause in the original?
The judges need to take a speed reading class or maybe get a bigger magnifying glass.
Its taken them 10 years to find the constitutional fine print that says Obamacare is wrong.
But that's the US Constitution.
Anything may -or may not - be constitutional depending on the judge.
Its a topping and a floor wax.
Blogger Hagar said...
There is no "replacement" possible for "pre-paid healthcare for all" other than a full National Healthcare System.
Which is just what businessman Donald J. Trump was advocating in 2000:
And what candidate Trump and President Trump have been mentioning with regularity.
https://www.axios.com/trump-universal-health-care-single-payer-united-kingdom-6c19909c-9c55-4bd9-9f67-9542412277a3.html
We had this unread legislation shoved down our throats by a party-line vote.
Right back at 'em!
inderbox said...
We had this unread legislation shoved down our throats by a party-line vote.
Right back at 'em!
This comment is one of countless reasons that make me wonder about anyone who ever voted for Obama, and then for Trump.
Because it was considered racist to do other wise chuck because Gruber who had fooled Mitt Romney had the journolist singing thr praises, because the tea party had to be condemned for the same reason.
"Businessman" Donald J. Trump is a pragmatist (and no Republican), so whether he likes it or not, he can see that once we started down the slippery slope of pre-paid first class healthcare for all, and someone else - your employer or "the Government" - was going to pay for it, there would be no stopping it.
Just read the comments hereon - no one is talking about going back to medical insurance (for disasters only) and a privately run health care industry.
Murhy's golden rule applies, and ACA is going to result in healthcare being run by a cartel of the largest surviving medical "insurance" companies after further consolidation in the insurance industry, which is not going to work, and Congress will be called on to step in to save the situation, which will be some form of nationalizing the "insurance" companies while claiming that is not so at all.
and it will work like a combination VA and Indian Health Service to the 10th power.
One of the very best things that has happened to me is that I went onto a company insurance policy and therefore did not need to go through the gonad cringing horror that is the Obamacare/Private Insurance Misery.
I venture to say that the vast majority of you have never had to deal with that putrefying corpse of a plan. I had the educational benefit of having been on private insurance both before and after Obamacare.
Obamacare, unless you are getting it free, it worse. Much worse. Like 'three times the prior cost' worse.
But I guess I had to pay, not only for my family, but for two more Chicago voters for this blatant Democrat vote buying scheme.
It is hard to explain the pain, fiscal, mental and emotional, that this bill has brought on my family and that is when we were HEALTHY. God help us if we had a condition.
Could the courts say that a tax is required to make Obamacare constitutional and Obamacare will still be constitutional even if the Congress reduced the tax to zero? So it's not the actual tax, but just the authority to tax that makes it constitutional.
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