Last night, Texas and the US Department of Justice filed briefs with the Supreme Court saying that the entire ACA has to be thrown out.
The thrust of the argument is that since the ACA individual mandate was saved in NFIB v. Sebelius (2012) because it could be framed as a tax, the decision by a future Congress to lower the tax rate to $0 for not having qualified coverage means the penalty is not a tax, and therefore the entire law including calorie labeling requirements must go.
There are massive standing issues. The two individual plaintiffs have no injury. Under current law, they can either be insured or pay nothing. That is not an injury beyond a vague psychic injury. The states don’t like the ACA but they are not directly injured by the part of the law that they allege is unconstitutional. They just want to not see their citizens insured.
There is also ridiculous argument that we should only look at what Congress said in 2009 and 2010 and not what Congress said in 2017. In 2017, Congress had plenty of opportunities and spent a lot of effort trying to repeal and replace significant elements of the ACA incuding Medicaid expansion. No working majority was ever assembled for that task EXCEPT for a small change to the tax code. That one task had a working majority that was able to get text to paper and a presidential signature to become law. Everyone agreed that the ACA individual market would still work, maybe not as well and not as efficiently, but it would still work without an individual mandate. And it has worked reasonably well-ish (aided tremendously by Silver loading).
I think there is a majority on the Supreme Court as currently constituted that will either rule completely to sustain the ACA or rule that a zero dollar mandate is unconstitutional BUT completely severable from the rest of the text so that the law as it is currently enacted and working today can continue to work in the future. But I am not certain.
Cheryl Rofer
I love the way the Trumpies keep offering up material for Democratic campaign ads. Hickenlooper in Colorado is already running with “Republicans want to take your healthcare away in the middle of a pandemic.”
There were at least five new ads last night from the anti-Trump coalition, all pretty good.
Also, I read that this case is unlikely to be argued before November.
rikyrah
But, no difference between the parties ???
The Thin Black Duke
If folks think the protests in the streets are bad now, wait until you see what happens when you take away people’s health care.
kindness
God damned Texas. Why do you have to constantly poke me in the eye?
Another Scott
Thanks for this.
As you say, it is ridiculous that they’re even having to take this case at all. Congress spent years arguing over this thing, there’s that 1790 mandate for heath insurance for sailors, there’s severability, there’s standing, and all the rest.
They know it’s a loser issue before an election in a pandemic, so they’re going to try to chip away at it while people can’t do anything about it (the same way they chip away at abortion rights, labor and environmental protection, and all the rest).
Grr…
Cheers,
Scott.
Baud
A decision won’t come down until after the new Congress and administration are in place. Assuming we get the Senate, any damage is fixable, and Roberts knows that.
StringOnAStick
The ACA remaining viable is critical to a lot of people, including my husband and I when he retired next Feb (we won’t be 65 for 2 years after that). I retired early to avoid being sacrificed on the covid altar as a dental hygienist.
I wonder how many other people are like us; close to retirement and ready to pass our jobs on to a younger person who needs a break to get started, but we haven’t won at Carousel* as far as being able to get health insurance goes. The ACA remaining viable for those of us with pre existing conditions (meaning anyone after age 50, minimum) takes off those handcuffs. So of course the R’s want to destroy it, like everything else; their governing philosophy is worse than nihilistic.
*Logan’s Run reference.
MattF
Trump is unalterably opposed to ‘Obama-anything’. He takes it as a personal injury,
patrick II
Aside from the particular policy you describe here, dealing with this country’s government has become so erratic that no person or entity can certain about dealing with this country. Foreign countries cannot count on us living up to any treaty we sign, DACA kids are whipsawed between having some safety or not, agencies that are supposed to have policies that are in part meant to create a stable environment for people and businesses to operate in are being “managed” by appointees chosen because they believe the opposite of what the stated goals of the agency are. Judges and our law enforcement agencies have become hooligans and the mockingbirds of law — putting out the right call to fool everyone, but then killing your offspring. And finally, of course, how can you plan anything if, during the middle of a pandemic, people are trying to take away your ability to see a doctor. But people are so confused that the last words for some people, as they are put on the incubator, will be “As long as it’s not a mask, that would interfere with my rights”.
There is a famous lab experiment where rats had two levers in front of them. For a while, if they pushed the lever on the left they got food, and if the pushed on the right lever they got a small shock. They learned to push the lever on the left. Then the switched the levers, and after a short period of frustration the rats learned to push the right lever instead, and re-settled in. But then the scientists started selecting the levers at random and the rats went crazy. I feel like this whole country is getting random shocks and are becoming disoriented. And, aside from the particular policy goal or outrage we may be discussing at any time, outrage and chaos is the midrange goal when you stand back and look at the overall pattern, and fascism is the end game chaos will cause.
JPL
@patrick II: Yup!
The Thin Black Duke
@patrick II: Putin is getting his money’s worth, isn’t he?
clay
@rikyrah: This is all Obama’s fault by not passing Medicare For All, which in no way would have been vulnerable to Trumpian executive sabotage and court challenges. /rosetwitter
West of the Cascades
Even if this case is argued in October, there would seem to be little chance of a decision by January 2021. Couldn’t a new Congress with a Democratic Senate and a President Biden quietly pass a one line bill re-setting the tax to $5.00 … and thus moot out the case before the Supreme Court? (thinking here of a temporary measure to get rid of this case, while doing comprehensive updates and possibly resetting the mandate to a level that will encourage compliance, but in conjunction with more good things so it’s not a stand-alone reinstatement of the previous mandate).
Punchy
What’s wild is that the case has not yet been heard, investigated, and tried, and yet I can already know no more than 6 will vote to sustain it and no less than 4 would vote against trashing it. The court (and this country) is basically whatever Robert’s thinks it should be.
David Anderson
Even easier fix is a one line law saying that the individual mandate provisions are completely severable from the rest of the bill as of 1/1/14
Omnes Omnibus
@David Anderson: Belt and suspenders. Set a $1.00 penalty for no coverage and make mandate severable.
debbie
@MattF:
The thought that a black man is better than he is at presidenting is eating him alive.
debbie
@clay:
Don’t let the fact that MFA never had a chance back then stop you. //
jimmiraybob
The War
a short story by jimmiraybob
Supreme Commander Bone Spurs (AKA Unindicted Co-Conspirator Person No. 1) declared war on the “invisible enemy,” then began negotiating with the “invisible enemy,” then declared unconditional surrender to the “invisible enemy,” then sold the rights to decimate the people to the “invisible enemy,” and then gave aid and comfort to the “invisible enemy” by crushing the resistance – the Coup de grâce.
And a cold wind did howl.
FIN
jimmiraybob
@MattF:
Trump and his cult horde are unalterably opposed to ‘Obama-anything’. They take it as a personal injury.
RSA
I’m trying to think of a pre-existing condition some time in the near future, one with potentially expensive treatment because it’s not well understood, one affecting millions of Americans, one that insurance companies would be happy to deny coverage for if the ACA were overturned…
Nope, nothing comes to mind.
Brachiator
The Trump administration and the GOP truly believe that they have a winner in trying to kill ACA. And some of their base are with them, thinking that the ACA means “giving” health care to people who don’t deserve it, and making people pay for insurance that they don’t want or need.
And yet repeal and replace really means giving the insurance companies everything they want. The irony of it is that yes, insurance companies and related businesses are greedy, but they are not stupid and most of them seemed to have adjusted fairly well to ACA.
Ultimately, Trump’s opposition to ACA is not ideological. It’s just about spite.
Barbara
I no longer make predictions on Supreme Court cases, but if I had to, the decision will be 6/3 with Kavanaugh and Roberts voting with the four Democratic appointees. The theory under which it was “repealed” accidentally and unintentionally is so loopy and stupid that I think the appellate judges who voted with the district judge should be seriously investigated for who they are taking money from. Reed O’Connor, the district judge, is in the hip pocket of right wing lunatics. I know someone who is his personal friend. A heart attack would be a blessing to the polity.
scott (the other one)
I am less worried about this one than any previous ACA case. John Roberts has proven that he’s as much a politician as a judge, and in this case, that’s a good thing; the last thing he wants is to gut health care in the middle of a pandemic, especially with a wave either on its way or having just wiped out huge swathes of conservatives. So I’d be surprised if he wasn’t furious that he has to deal with this damn thing again. He’ll find some way to more or less rule as before, maybe chipping away at it, or maybe just saying, “shut up, it’s fine.” Either way, it’ll be essentially undamaged.
Unfortunately, I could be wrong. Very, very wrong.
Lacuna Synechdoche
David Anderson @ Top:
That’s pretty much what I think too.
Of course, there should be a 0% chance that the ACA could be overturned, but even with SCOTUS constituted as it is, I still don’t think the wingnuts have much more than a 5-10% chance of prevailing.
Roberts will do everything he can to keep the ACA alive for two reasons:
1. it’s good for business and Roberts always rules in favor of bidness, even when it seems to go against right-wing ideology (Roberts is truly a Capitalist’s tool), and
2. Even Roberts knows it’s political suicide for the GOP to end the ACA in the middle of a pandemic.
So Roberts will find a way to keep Obamacare alive, just as he’s done every other time he’s had to rule on it – albeit maybe with some conservative modifications if he can sneak them in, like he did with making Social Security expansion optional on a state-by-state basis.
Hell, I even give Gorsuch a 50/50 chance of ruling for the ACA, depending on how severability fits in with his textualist ideology.
Lacuna Synechdoche
@StringOnAStick:
Yep, the GOP’s governing philosophy is essentially: sadistic.
greenergood
@RSA: What? you mean the one that totally screws up your lungs, and/or your kidneys, and, we are now discovering, your BRAIN cells? It’s a HOAX, I tell you, a hoax.
LongHairedWeirdo
Yeah, that’s the horrible thing. From a legal perspective, this should be thrown out for lack of standing; if standing was granted (and it really shouldn’t be), then the legal argument is ridiculous.
But we know that Republican judges are willing to bend reality to get the results they want. We can’t be comfortable, ever. And that the Republicans face no backlash over this absolutely ludicrous lawsuit is even worse. Every honest journalist should be making sure news consumers know that this is a bogus, flawed, bad faith lawsuit. But they won’t – that would be partisan!
burnspbesq
@kindness:
our shithead attorney general needs to distract people from the fact that he is currently under indictment (and the case got one step closer to trial earlier this week).