This article is part of a symposium previewing California versus Texas.
Josh Blackman is a professor of law at the South Texas College of Law, Houston, an adjunct researcher at the Cato Institute, and the author of two (and soon to be three) books on Obamacare’s legal controversy. Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies and the author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. Together, they filed an amicus letter on behalf of Cato in which they interviewed Neill Hurley and John Nantz supported.
Obamacare is back on the Supreme Court. This time, the judges will be asked to rule on the constitutionality of each mandate and, if appropriate, how much of the rest of the affordable care law needs to fall.
But wait, did the world historical legal battle that culminated in the National Federation of Independent Business against Sebelius not clarify these questions in 2012? Remember, Chief Justice John Roberts changed his voice and converted the penalty for failing to take out health insurance mandate into a tax. Well, since Congress set this tax penalty to zero in 2017, we need to repeat this script again.
In short, what is now strangely known as California versus Texas – isn’t the ACA a federal program? – asks three questions. First, does the ACA’s individual mandate cause a breach sufficient to confer plaintiffs on Article III of the Constitution? Second, can Section 5000A of the ACA still be construed as a constitutional tax after the fine is reduced to $ 0? Third, can the individual mandate be separated from the rest of the ACA?
Our Amicus Brief on behalf of the Cato Institute combines these three topics. We claim the individual plaintiffs stand and Section 5000A can no longer be saved. And from our point of view, the remedy is determined by the constant analysis that is the focus of this symposium essay. The court need only declare unconstitutional those parts of the ACA that violate those individual plaintiffs. We’ll bring our conclusion forward: People who like Obamacare can keep Obamacare. And those who oppose being forced to buy unwanted policies have other options outside of the ACA exchanges. This remedy would be compatible with the limits set out in Article III and lead the needle to severability through the fragmented case law of the court.
Our analysis begins, as it should be, with the text and structure of the ACA. Section 5000A (a) of the Act created a “[r]Right to Maintain Substantial Minimum Coverage “, which, as the NFIB explained,” is commonly referred to as an individual mandate “. And Section 5000A (b) codified shared responsibility payment, also known as the “penalty” for non-compliance with the individual mandate. Congress structured the individual mandate and payment of shared responsibility as separate provisions. Some people were subject to the mandate but were exempt from the penalty.
In the NFIB, two private plaintiffs, Kaj Ahlburg and Mary Brown, questioned the constitutionality of the individual mandate. You did not contest the payment of shared responsibility; Her Article III violations were mandate-free, not punitive. In fact, Ahlburg and Brown would never have been punished for planning to get qualified insurance. The NFIB examined and apparently rejected arguments that the mandate was “toothless” without penalty. Part III of Roberts’ control opinion dealt with the constitutionality of each mandate. Part III-A noted that the mandate could not be maintained under the trade clause or the necessary and proper clause. Part III-B recognized that maintaining the mandate under tax power is not “the most natural interpretation”. And Part III-C developed and applied a “saving construction”. Roberts stated that “[t]The requirement that the Affordable Care Act imposes on those without health insurance “- that is, payment with shared responsibility -” looks like a tax in many ways. “
The salvation construction read both parts of Section 5000A as a unit: the mandate and penalty, when merged, provided a person with “a legitimate choice to do or not to do a given act while he is willing to pay one.” Tax levied on this choice. “The saving construction can be treated as a gloss on the ACA. Outside of the saving construction, however”[t]The simplest reading of the mandate is the following [Section 5000A] orders individuals to take out insurance. “The shared responsibility payment designed by Congress was not a tax. And Section 5000A, as drafted by Congress, did not offer a “lawful choice”. Instead, an unconstitutional mandate to take out insurance was imposed – and continues to this day.
Fast forward to 2017. Congress passed the Tax Cuts and Jobs Bill that reduced the payment for shared responsibility to $ 0. As a result, Section 5000A can no longer be construed as a “lawful choice” for obtaining insurance or paying tax. The Congress thus peeled off the protective shine of the ACA and left behind only the unvarnished and unconstitutional individual mandate. Shortly after the TCJA went into effect, Texas and other states questioned the constitutionality of the ACA. The States were joined by two individual plaintiffs, Neill Hurley and John Nantz, who are subject to the individual mandate.
Although the NFIB did not consider the position, the court should have found that the individual mandate had inflicted an Article III violation on Ahlburg and Brown. Her injuries were based solely on the individual mandate. The individual plaintiffs here, Hurley and Nantz, allege an even greater violation. Ahlburg and Brown had to take steps to get insurance before the mandate came into effect in 2014. However, Hurley and Nantz don’t just expect a future injury. You are already subject to the mandate. This order to take out insurance alone is sufficient to determine a violation under Article III.
California claims that “the TCJA made Section 5000A (a) toothless” because there are no “more negative legal ramifications”[s]”Don’t buy health insurance.” This argument is not new. In fact, the NFIB reviewed California’s position in 2012 and apparently rejected it. During a hearing at the NFIB, Roberts asked a question that the judicial investigation largely anticipated: “Why would you have a requirement that is completely toothless? You know, buy insurance or something. Or what? Or nothing else. “Gregory Katsas, now a judge on the US Appeals Court for the District of Columbia Circuit, but then a representative for Ahlburg and Brown, replied,” Because Congress could reasonably believe that at least some people will obey the law exactly because it is the law . ”In his report, he stated that a 2008 report by the Congressional Budget Office“ confirms the reasonable thesis that law-abiding citizens are interested in challenging onerous legal requirements regardless of the sanction that would be imposed for non-compliance. ”In This report found that certain individuals would comply with an individual insurance mandate without penalty, an argument that echoes the one advance made by Hurley and Nantz.
The US Court of Appeals for the 5th Circuit highlighted another NFIB colloquium. Judge Elena Kagan asked: “Whether [Katsas] thought ‘a person subject to this [individual] Mandate, but not subject to [shared responsibility payment] should have stood. ‘”Under the draft of Congress, some people were subject to the mandate but not subject to punishment – for example, members of Indian tribes. Katsas replied that such people would stand because they were “hurt by compliance with the mandate.” He stated, “If this person is mandated, they must get health insurance. This is a forced acquisition of an undesirable good. It’s a classic paperback violation. “
California argues that after TCJA, Hurley and Nantz are in a different position than Ahlburg and Brown. According to this reading, the two Texans are no longer subject to any “legal consequences”. California claims that Hurley and Nantz are not claiming an identifiable violation because they no longer have to pay the penalty for non-compliance with insurance. This argument combines the earnings analysis from Part III-C of the NFIB with the necessary threshold analysis of the position in Part III-A. If the NFIB plaintiffs lacked a violation under Article III, the challenge to the mandate should have been dismissed due to lack of substantive jurisdiction. But the NFIB’s ongoing analysis was apparently so evident that Roberts didn’t even bother to speak to them. The individual plaintiffs alleged Article III violations because they intended to obtain unwanted insurance policies to fulfill the mandate, even though they would not be subject to the penalty.
This analysis remains correct and reinforces the merit analysis: if the mandate creates a legal requirement, it also leads to a violation under Article III. The individual plaintiffs in California v Texas allege an even greater Article III violation than the individual plaintiffs in NFIB.
Josh Blackman and Ilya Shapiro, Symposium: The Individual California v Texas Plaintiffs Suffer a Greater Article III Infringement than the Individual NFIB V Sebelius Plaintiffs.
SCOTUSblog (November 5, 2020, 4:17 pm), https://www.scotusblog.com/2020/11/symposium-the-individual-plaintiffs-in-california-v-texas-suffer-a-greater-article – iii-violation-as-did-the-individual-plaintiffs-in-nfib-v-sebelius /