What’s going on in Texas

I am not a lawyer, so please don’t take any of the following as informed legal analysis.

The Trump Administration has decided to argue that the $0 penalty individual mandate is unconstitutional and therefore community rated guaranteed issue requirements are unconstitutional as they are non-severable from the mandate. That would destroy the individual market reforms of the ACA.

Take Care has the legal argument and demolition:

In the government’s brief, the Trump DOJ makes two arguments. (A) The individual mandate, which the Supreme Court upheld in NFIB v. Sebelius, is unconstitutional; and (B) because the mandate is unconstitutional, the most important provisions of the Affordable Care Act should also be struck down, on the ground that they are not severable from the now-unconstitutional mandate.

The first of these arguments is excruciatingly stupid, but has the complementary virtue of being irrelevant on its own…

To this we say: Whatever. We’re law professors, and not even we can get worked up about the difference between “do it, or pay the price, which is zero” and “do what you want…”
there are actually instances where severability doctrine is capable of generating clear answers to obvious questions. The easiest case—hard to imagine, but stay with us—would be if Congress actually passed a piece of legislation that eliminated, as a formal or practical matter, one provision of a law, but left the rest of that law in place. In that case, the reconstruction of Congressional intent would be straightforward: What Congress wanted was a law without that provision.

But that is exactly what Congress did in the tax bill, with respect to the Affordable Care Act. And that is what makes the Justice Department’s argument so transparently dishonest.

Yeah, this is dumb.

As a reminder, Jonathan Adler was one of the prime proponents of the “Moops” argument that tried to get subsidies tossed for citizens of states using Healthcare.gov. He thinks this is a bullshit argument.

It is a bullshit set of arguments that are being made in bad faith. And usually that would be enough. But since this is related to the ACA and the district judge is very conservative, we’re may be riding this out for a while as it gets appealed up and down the chain multiple times.

On a pragmatic basis, this introduces uncertainty into the market. Insurers hate uncertainty. They respond to it in one of two ways. They can either run like hell from the market or they can jack up their premiums to incorporate the risk that mid-contract they have to operate under a different regulatory regime.

On a political level, this highlights the popular parts of the ACA (community rating and no denial of coverage for pre-exisiting conditions) just as the election season heats up.

35 replies
  1. 1

    Thanks, David. I figured you would write something about this. There’s a lot to unpack. This is a thread from a lawyer that looks reliable to me. I’ve seen parts of it agreed with by others writing independently. It’s a blow to the Department of Justice as well.

    ETA: This is quick because I will soon have to dump Zooey off my lap and get on with a busy morning.

  2. 2

    @Cheryl Rofer: Nick is one of the top ACA lawyers in the country. He is very reliable (disclosure, I bounce ideas off of him at times)

  3. 3
    Baud says:

    the district judge is very conservative,

    So he believes in judicial restraint and calling balls and strikes?

    Ha! I crack myself up.

  4. 4
    Patricia Kayden says:

    It’s all about destroying something which benefits millions of Americans. And replacing it with nothing. Amazing display of heartlessness.

  5. 5
    sherparick says:

    Again, as Ron Fournier, Glenn Greenwald, and Matthew Dowd, all rich guys with Cadillac Health Insurance, there was no difference between Hillary Clinton or Donald Trump, excpept Trump was more “populist” and a “dove.”

    At least this gives the Democrats a great issue to run on, that the Republicans want take away Health Insurance from everyone who is not rich.

    Also, preserve Social Security and Medicare from Republican plundering.

    And a I side benefit, preserve the Rule of Law and a democratic republic from Republican and Movement Conservatives desire for an authoritarian oligarchic monarchy.

  6. 6
    Anonymous At Work says:

    This is a very scary fire with which the GOP is playing: DoJ declining to defend a law sets up a dynamic where the next Democratic President declines to defend GOP-passed laws.

  7. 7
    Vhh says:

    @Anonymous At Work: Inevitable. As in post war Germany not defending Nazi-era laws. Or France executing Vichy collaborators. Personally, I look forward to the headlines.

  8. 8

    I have an occasional series on my blog called “The Law is the Loser” and this is an entry in it. In the law blog Take Care, Nicholas Bagley comments: “I still regard it as extremely unlikely that the Supreme Court will adopt an argument as far-fetched as the one that the states have advanced. And, so far as I can make out, the Trump administration will continue to enforce the ACA while the litigation progresses. […] I’m frightened for what this says about the rule of law. […] The Trump administration has just announced that it doesn’t care that a law was passed by Congress and signed into law by the President. All that matters if that it hates the law and has a (laughable) argument for casting it aside. That’s not a rule of law I recognize. That’s a rule by whim. And it scares me.”

    Andy Slavitt, former CMS Administrator, isn’t even as sure as that: “[This] frivolous lawsuit will attract every conservative lawyer to get this to the Supreme Court. […] This could hit the Supreme Court in 2019 earliest or more likely […] 2020. And who knows what the make up of the court is by then? If Trump has a chance to replace a liberal judge, it may even be out of Roberts’ hands.”

    For me, this is another step down into fascism. The rule of law will be decades recovering from the damage the Roberts Court (working on being the worst since Taney), Republican Senate Leader McConnell, and the Trump administration have done to it.

    (And then there is what is happening at the G7.)

  9. 9
    D58826 says:

    @Anonymous At Work:

    next Democratic President

    Hmmm I think you miss Part B of the plan – there will never be a ‘next Democratic President

  10. 10
    Ohio Mom says:

    I hate Republicans. Here in suburbia, I am surrounded by them, including a number of fellow special needs families. Some days it is all I can do not to go up to them and scream, “What the hell is wrong with you, anyhow?”

    On another note, what’s that vote yesterday against CHIP about?

  11. 11
    rikyrah says:

    they are evil muthaphuckas. period.

  12. 12

    @rikyrah:

    The Republicans hate ordinary Americans and want us to die. This is just more evidence – of which there’s any amount – for that theory. There’s not much evidence against it.

  13. 13
    Scott says:

    Seems to me the severability argument also works in reverse. If the individual mandate is not severable from the ACA because that makes it unconstitutional, then the law to eliminate the individual mandate is unconstitutional, not the ACA.

  14. 14
    dnfree says:

    @Anonymous At Work: It has happened before, and did under Obama. So yes, that dynamic is already there. From TPM:

    “It is extremely rare, but not unprecedented, for the Justice Department to refuse to defend a federal law, as the agency is generally duty-bound to argue in defense of any current laws or policies that come under legal challenge. Most recently, President Obama directed his DOJ not to defend the Defense of Marriage Act, which was later struck down by the Supreme Court.”

  15. 15
    James Powell says:

    I am a lawyer but it doesn’t help. The only informed legal analysis I can offer is that the contemporary RW judges don’t give a damn about the law, stare decisis, their prior decisions, the decisions of superior courts, or any of the other supposed restraints on judicial action. They produce results to match their agenda.

  16. 16
    Peale says:

    @dnfree: Yep. I hate to “both sides this one”, but its the same dynamic that leads left and uber-left and so-left we like Trump activists to decry the failures of Democratic administrations to “get things done.” Whether DOTA continuing to be policy under Obama, or the Obama DoJ’s first defense of DOMA which had gay activists accusing him of homophobia and being part of some kind of right wing Mormon plot against gays. Or these days pretending that Obama enforcing immigration rules means that he is no better than Trump.

  17. 17
    smintheus says:

    You might wonder what Republicans are thinking by attacking the ACA on its most popular points, and doing so this summer of all times.

    On a pragmatic basis, this introduces uncertainty into the market. Insurers hate uncertainty. They respond to it in one of two ways. They can either run like hell from the market or they can jack up their premiums to incorporate the risk that mid-contract they have to operate under a different regulatory regime.

    On a political level, this highlights the popular parts of the ACA (community rating and no denial of coverage for pre-exisiting conditions) just as the election season heats up.

    I think the first point here explains the second. It’s the standard game of trying to sow enough chaos to force up premiums etc., tied to an election in which Republicans have very few issues they can run on. Next year’s rates are going to be locked in soon, so Trump & Co. needed to send out shockwaves into the market asap if they will have any chance of using the ACA to rile up Republican voters this fall.

  18. 18
    JPL says:

    @Ohio Mom: I didn’t see the vote, but the argument has been whether or not you can raid the reserve fund. Repubs like to do that, and then during an economic downturn, they can holler that it’s not funded.

  19. 19
    Yutsano says:

    @D58826: Oh stop that. Our government hasn’t even come close to failing into permanent Republican dictatorship yet. And if it’s tried this country divides. No way we put up with that shit out this way.

  20. 20
    Bobby Thomson says:

    @smintheus: pretty standard Republicsn politics. Blame Democrats for something Republicans did, knowing the press are too stupid or cowardly to call their lies lies.

  21. 21
    Anonymous At Work says:

    @dnfree: Obama’s DoJ took the stance that DOMA was unConstitutional but let the Congressional Republican Caucus intervene in the case to defend the law. I will await Jefferson [Davis] [P.T.] Beauregard Sessions III’s decision to let the Democratic Caucus intervene.

  22. 22
    Leto says:

    @dnfree: On the Bagley tweet comments, all the conservatives are crying about Obama and DOJ refusing to defend DOMA. I’m pretty sure these are the same people who would be cheering the Taney decision in the Dred Scott case.

    @smintheus: Agreed; Trumpov and his enablers create chaos in the market, driving up premiums, then cry over how premiums are going up so it’s obvious the ACA is failing. Republican logic at it’s finest.

  23. 23
    catclub says:

    so what is up with the 4 DOJ lawyers who quit the case?

  24. 24
    Nicole says:

    @Ohio Mom:

    Some days it is all I can do not to go up to them and scream, “What the hell is wrong with you, anyhow?”

    Racism, mostly. Some sexism, too, but mostly racism.

  25. 25
    Bobby Thomson says:

    @Anonymous At Work: Democratic AGs already have.

  26. 26
    Snarki, child of Loki says:

    #3: the insurance companies could introduce a “profit sharing” provisions to MDs that eliminate the source of uncertainty, especially the one located at 1600 Penn. Ave.

    Could be worth a lot.

  27. 27
    Jonny Scrum-half says:

    I don’t get it. The conservative movement for the past 30-odd years has been almost explicitly about foreign imperialism and domestic tax cuts for the rich. They have no other “positive” agenda, and they’re actively and openly (with the occasional lie thrown in) trying to make things worse for the vast majority of citizens. But not only have they paid no electoral price for this, they’ve actually succeeded to an extent that Republicans haven’t seen in 90 years. Are the media that bad, the public that stupid, a combination of both …. What the hell is going on?

  28. 28
    Anonymous At Work says:

    Actually, noticed a big problem in coverage of this, even from attorneys. GOP didn’t “repeal” the mandate tax. The mandate tax is still on the books. It’s set for $0. A future Congress does not replace the mandate; it simply adjusts the level.
    Now, the question is whether this is the sort of hair-splitting that Justice Weathervane approves of, or if this is too rude to talk about…

  29. 29
    Ohio Mom says:

    @Nicole: I know there is racism at the bottom, but it is less out-and-out bigotry against than it is a puffed up sense of superiority.

    When I have mentioned the jeopardy Republicans put our special needs kids in, I am assured “they won’t do anything to hurt our kids.” My neighbors are most of all naive and gullible.

  30. 30
    burnspbesq says:

    That Adler, one of the chief architects of the prior challenges to the ACA, thinks this argument is a pile of poop is telling. FWIW, he’s right.

  31. 31
    Jack the Second says:

    the district judge is very conservative,

    I thought we weren’t supposed to call people racist anymore?

  32. 32
    TenguPhule says:

    @Anonymous At Work:

    DoJ declining to defend a law sets up a dynamic where the next Democratic President declines to defend GOP-passed laws.

    Politics has become war by other means.

    No quarter to the enemy.

  33. 33
    TenguPhule says:

    @Jonny Scrum-half:

    Are the media that bad, the public that stupid

    Yes.

  34. 34
    Ruckus says:

    @Jonny Scrum-half:

    Are the media that bad, the public that stupid, a combination of both …. What the hell is going on?

    The hell is going on is that the republicans have a majority. Slim but still. They have been waiting for a non political person at the top to sign whatever bullshit they put in front of him to stop the entire New Deal. Towards this end they have been propagandizing the country for the last 50 yrs with their racist/misogynist/conservative bullshit, which is that the only people who count are the conservative owners. Everyone else is a useless money sucking parasite. Or worse. They will continue to do this as long as they can. It doesn’t matter that it’s against their own interests.
    And yes a lot of people are exactly that stupid. Example, KYConnect. They changed the name and all is/was well. KY hated that the black president gave them healthcare. But just changing the name made it OK. There is no logic, no reality, no thought, just following, just belonging, just hate. So Yes. Exactly that stupid.

  35. 35
    Dan B says:

    Jonny Scrum-half

    Seconding Ruckus at 34, what’s going on is the realization of the Powell Doctrine. This has set up, over tge last 50 years, a series of institutiond, like “Think Tanks” and lobbying outfits that are devoted to influencing the media (social media as well). The loss of the Fairness Doctrine accelerated the slide into pervasive propaganda. Formerly groups like the John Birch Society had short reach. Currently an enormous echo-system of think tanks (you know they all have video studios for rehearsing and producing media, no “thinking” involved.) and media syndicates, Fox, Sinclair, etc.
    Meanwhile progressive orgs push “facts”. If people were swayed by facts racism and disdain for the poor would be minimalized. People would want to know the facts behind Black Lives Matter and the NFL players kneeling. The heart is not mived by the head. Lewis Powell knew this. So did the Birchers. So does Madison Avenue. Powell linked these and the wealthy saw good results and are investing in a “winning” scheme.
    Until progressives put more energy into effective communication we’ll keep on sliding back. There are giod examples like David Hogg and Michael Avenatti. Every move they make is tailored to their audience and to the broader media. Keep an eye on their techniques.

Comments are closed.