This afternoon, the 5th Circuit Court of Appeals will be hearing oral arguments as to whether or not the ACA is unconstitutional. The case is Texas vs. Azar. The plaintiff states have argued and won in district court that the ACA is unconstitutional because the individual mandate penalty has been lowered to zero and therefore it is not a tax.
⚠️ Oh, for those wondering what the lawsuit itself is actually ABOUT, here it is:
1. The GOP set the #ACA individual mandate penalty to $0.
2. Therefore, the GOP claims the penalty is unconstitutional.
3. Therefore, the GOP claims the whole law is unconstitutional.
— Charles Gaba (@charles_gaba) July 8, 2019
Yeah, this is a bananapants theory even if everyone assumes standing. The plaintiff states can’t show injury and the individual plaintiffs are only alleging psychic injury that they don’t want to be admonished to buy insurance even if there is no fiscal implications of either a buy or no buy decision. Assuming standing is not contested, this is a simple severability case. Congress knows how to repeal a law. The Congress that moved the mandate penalty from 2.5% of income to 0% and $0 of income spent several months trying to repeal the law and failing. No one who voted to repeal the individual mandate thought they were repealing the ACA. The courts assume that when Congress wants to do something, they will make it abundantly clear both within the text of the law and usually in supporting documentation. Congress wanted to get rid of the mandate costs and they had the votes to do so and that was it. The rest of the law was left intact.
Under the district court judge’s ruling and under the argument advanced by both the plaintiff states and the Trump Justice Department, the entire ACA has to go which means the exchanges would have to go, it means Medicaid expansion would have to go, it means Medicare Part D gets more expensive, it means all of the delivery system reform efforts would have to go, it means calorie labeling on fast food menus would have to go. It means the taxes on upper income Americans would go.
This is banana-pants, but this is the argument that will be made this afternoon.