The 3 judge panel from the 5th District Court of Appeals has ruled 2-1 that the district court judge in Texas was right in declaring the ACA individual mandate now unconstitutional and mostly right in throwing out the insurance finance and regulation portions of the ACA. The majority sent the case back to the district court to carve out the few severable parts of the ACA from the individual mandate. This is a big deal as the majority holding is signalling to the district court to leave a few fig leafs in like biosimilar approval pathways and menu calorie count requirements while destroying the coverage expansion.
So when you're tempted to say that the court's decision isn't a big deal because it didn't really do anything — well, don't. The court is signaling that it's perfectly OK if Judge O'Connor strikes down the most significant parts of the ACA.
— Nicholas Bagley (@nicholas_bagley) December 19, 2019
The decision rests on a farcical interpretation of NFIB v Sebelius, severability doctrine and Congressional intent. Congress is fully capable of repealing laws. The particular Congress that zero-ed out the mandate spent several months trying to repeal the ACA coverage expansion elements and failed. Congress knows how to write legislation that achieves the outcome that the district court judge will write up. It chose not to. Congress also knows how to cut taxes. It is very good at it.
Senator Alexander, the Senate Budget Committee chair has this to say about Congressional intent:
As for the rest of Obamacare, I am not aware of a single senator who said they were voting to repeal Obamacare when they voted to eliminate the individual mandate penalty.
— Sen. Lamar Alexander (@SenAlexander) December 18, 2019
This is a bananapants ruling.
So what is next?
The rulings is stayed so the ACA will be in full force for 2020.
The case is going back to the Texas district court judge.
The district court judge will write an opinion gutting 90% of the ACA.
That opinion will be appealed.
The appeals court will take several months to mostly or completely uphold the district court opinion.
The Supreme Court will get involved.
The most likely way for the ACA to be upheld is for the five justice majority that upheld the individual mandate in the NFIB v Sebelius coalition to say that the individual mandate is completely severable from the rest of the law. That decision probably would not be issued until this time next year to late spring 2021.
Congress could fix this in 30 minutes with a 3 line bill saying that the individual mandate provisions of the ACA are fully severable from the rest of the law effective 12/31/18.
Yarrow
This is horrific. Thanks for the post. Makes the horror easy to understand.
We HAVE to win in 2020. No other option.
artem1s
or they could just make the tax not zero. which is what caused the problem anyway, isn’t it? another Moops moment?
Citizen Alan
@artem1s:
It was intentional on the part of the GOP to do it that way, but yes, I believe if the tax were reduced to $1 a year for not having insurance, it would pass constitutional muster even under the standards of those Nazis on the 5th Circuit.
And can I say once again that every self-described Progressive who refused to take judicial nominations into account in their 2016 voting decisions should do the honorable thing and kill themselves?
David Anderson
A $1 mandate would work. McConnell would never schedule the vote.
The fundamental problem is a combination of trolls and hacks in the judiciary
gene108
This is rage inducing.
Next Democrat President, House, and Senate should expand the lower courts, and leave the SCOTUS number alone.
Barbara
Right, Congress repealed the tax/mandate without repealing the ACA in whole. To infer congressional intent to repeal the rest of the law when it repealed part of the law is rank partisan interpretation that doesn’t even rise to the level of thinking that deserves to be called stupid.
Cheryl Rofer
Thanks, Dave. I knew you’d have a clear analysis.
Emphasizes how important the courts are and why #MoscowMitch is putting the fix in.
Although I keep wondering exactly what kind of country he really wants.
Kayla Rudbek
@Cheryl Rofer: He wants the Confederacy is what he wants- oligarchy forever. May all his designs, plans, schemes, and desires be frustrated and come to nothing.
NCSteve
The problem, that a lot of people don’t seem to get, is that the Sebelius opinion had five votes that found the ACA was not a constitutionally permissible as an exercise of the Commerce power and five votes that said it was a constitutionally permissible exercise of the taxing power via the mandate and tax penalty. Without a mandate or a tax penalty, Roberts is compelled to rule the whole thing is unconstitutional
A provision that says the mandate is fully severable would basically say the law is severable from the only thing SCOTUS said made the rest of it constitutional.
Baud
@NCSteve:
That’s wrong. Roberts isn’t compelled to do any such thing.
Major Major Major Major
@NCSteve: Roberts found the overall bill constitutional in Sebelius. He axed the mandatory-ish Medicaid expansion. I don’t see how you get “he found the bill unconstitutional” from that
MomSense
The GOP death eaters will never ever forking stop trying to make life difficult for ordinary people. They are determined to make sure we can never enjoy the benefits of a productive modern society.
West of the Rockies
@Citizen Alan:
If I don’t get my chosen candidate, I will stay home and sulk!!! I would rather nurse my resentment and take my chances with Trump Redux than vote for a candidate who has not sufficiently noted my particular issues!//
gene108
@Cheryl Rofer:
One where he, his rich wife, and rich friends can keep all their money, and the poor suffer, like they did, when Mitch’s parents and grandparents were young
Edit: Mitch’s old enough to have grown up around folks, who went to work with a 3rd grade education that he knows full damn well where this whole thing is heading.
MobiusKlein
Are results oriented rulings now the standard jurisprudence in this country?
senyordave
@Citizen Alan: And can I say once again that every self-described Progressive who refused to take judicial nominations into account in their 2016 voting decisions should do the honorable thing and kill themselves?
If they are still alive maybe someone can talk some sense into them.
Kelly
Any recommendations for a good article to read about the FDR court packing confrontation?
patrick II
@NCSteve:
If the original bill had no mandate, there would not have been a constitutional issue since forcing people to buy something was the issue republican judges made up to try and destroy the ACA. Taking away the mandate removes the only constitutional issue the alledged judges found troublesome in the first place. If they wanted to stay consistent, taking away the mandate removes the question of constitutionality. They should have to find another pretext, but they won’t bother because consistency is the hobgoblin of little democratic legal minds.
Eolirin
No one wants this either. That’s the crazy thing.
The only people who benefit from a repeal are a small number of very wealthy sociopaths who aren’t happy about their taxes going up. It would actually hurt the medical industry, the insurance industry, and going by the 2018 elections, be a wedge issue democrats can use to great effect. Poking at this in a way that might actually succeed is political suicide. You bring the medical, insurance and pharma lobbies down on your head while weakening your position with your base.
Roberts blew the only chance they had at stopping this by upholding the law the first time around. If they were being at all tactical about this they’d leave the debate to the democrats about Medicare for All and position themselves as the defenders of the ACA. If you let it get repealed without a workable alternative and via a question of constitutionality you are going to end up with Medicare for All. There won’t be an alternative to single payer and the loss of access vs the current status quo will be an existential crisis for too many people. In addition to probably starting a recession from the loss of medical industry jobs.
Barbara
@patrick II: They found the mandate defensible because they interpreted it as a tax. Taking the tax away should take away the thing that ostensibly made it objectionable to begin with. I am not going back and rereading all of the opinion, because there is nothing I can do about it.
Cacti
On the contrary, Roberts may rap the lower courts’ knuckles for trying to predictively overrule existing case law, as SCOTUS has done repeatedly to lower courts in the past.
Google the phrase “It is this Court’s prerogative alone to overrule one of its precedents.” for examples.
Another Scott
Since the Teabaggers love getting the courts involved in settled law (the PPACA is constitutional), does anyone have standing to request/demand an en banc review by the full 5th Circuit court? If the decision is on hold, why not have it be on hold for another few months before kicking it back downstairs?
Why should the Teabaggers be the only ones to pick and choose court actions on this stuff?
Thanks.
Cheers,
Scott.
Matt McIrvin
@Eolirin: 40-something percent of the country wants to “kill Obamacare”. They don’t actually want any of the logical, practical consequences of killing Obamacare, but many may never make the connection; those will just be something that materialized out of the aether.
Goku (aka Amerikan Baka)
@Matt McIrvin:
The point is enough will. And sadly it could get to the point that some desperate, angry person with little to lose will rightfully blame men like O’Connor for taking away their health insurance or a loved one’s and retaliate
Steeplejack (phone)
Response to Sen. Alexander above:
sherparick
The 2 judges on the 5th Circuit who voted to rule the ACA unconstitutional are Federalist Society Members. Elrod was appointed by George W. Bush in 2007 and Engelhardt is one of Trump’s and McConnell’s appointees who will be gifts that will keep on giving for years. But Susan Sarandon and Glenn Greenwald say that talking about the courts as a reasons to vote for Clintons and the Democrats was just “blackmail” and that they needed to be “punished.”
lurker3000
Bad week for people with health issues. The article in NYT about how balance billing fix failed in Congress makes all these debates on miniscule differences in M4A and/or ruling out presidential candidates based on fights over who has the most aspirational healthcare goal even more insane than usual.
J R in WV
@Cheryl Rofer:
Moscow Mitch wants a feudal country with rich white people allowed to do anything they want, protected by law from poor people and all folk of color, who won’t be allowed to do anything without written permission from their
ownerpermanent boss.“Boss, may I go to the store for food?”
“NO! Not til Sunday after work!!”