Oral arguments for Texas v California are this morning.
Republican attorney generals and the Trump Justice Department are arguing, evidently with a straight face, that after Congress tried and failed to repeal and replace the ACA over the summer of 2017, they snuck in a repeal of the entire ACA by changing the mandate penalty from 2.5% of income to $0 in the corporate tax cut bill signed in December 2017. Since the ACA individual mandate was only found to be constitutional in 2012 because it could be construed as a tax, a zero dollar tax is full repeal.
Yeah, that is their argument.
The Supreme Court has a broad set of options on how they want to deal with this lawsuit.
The easiest way to avoid a merits ruling is to ask a very simple question — what is the precise harm that any individual or state plaintiff can articulate from a $0 mandate penalty that is resolvable by litigation? What is the standing? There is no concrete harm for someone who refuses to buy creditable coverage. They can buy creditable coverage and pay nothing for a mandate because they met the rest of the language of the law or they can not buy creditable coverage and pay nothing. What is the alleged concrete injury that is correctable by a judicial remedy? What is the standing?
The court can also rule on the merits and say that Congress can and will change course, alter policy and repeal previous policy but they have to do so loudly and clearly. The court had several rulings last term that effectively stated that Congress has to be clear in what it is doing. Congress made its intent clear; they tried and failed to repeal and replace the ACA as there never was a 51 vote working coalition in the Senate to do that. However there was a working coalition that very strongly believed that it could zero out the individual mandate and nothing else and have the law keep on working (as it actually has).
If the court wants to toss the plaintiffs a bone, they can rule that a zero dollar mandate is unconstitutional as a tax but only about a page of the law has to get tossed with that ruling. The command and the penalty would be severed. Guaranteed issue, community rating and subsidies would still exist.
If the court wants to upend the law entirely, they can rule a zero dollar mandate as unconstitutional and unseverable from either the entire law or just title 1 which is the individual market reforms. This would be judicial full repeal.
WereBear
It never ends with these wastes of protoplasm. Because cruelty is their whole reason for being now…
dr. bloor
The problem isn’t that the Republicans are arguing their case with a straight face, it’s that at least four SCOTUS justices are listening with an equally straight face.
I expect ACA to prevail, with Roberts and Gorsuch siding with the sane bloc, but the fact that this is even a thing, regardless of the outcome, is a terrifying peek into the future.
Nora
As far as I’m concerned, the standing question should end the case right there. Who is harmed? How is anyone harmed?
A little Supreme Court history: before Griswold v. Connecticut, Connecticut’s birth control went to the Supreme Court at least twice, and every time it was brought to the court, the case was dismissed due to lack of standing. Only when Estelle Griswold, head of Planned Parenthood in Connecticut, actually got arrested and tried for violating the law (and fined $100) was there someone with actual standing to challenge the law.
I realize things have changed since then, and this Supreme Court has little interest in precedent, but this is how the case SHOULD be resolved.
Anonymous At Work
The Court also has an out that the question is moot since the spring’s stimulus dispersed funds via ACA channels that explicitly were cited in the legislation. Thus, Congress clearly didn’t mean to overturn ACA if it later passed legislation relying upon it.
But this all depends on good faith and honesty from the Republicans on the Court.
Sloane Ranger
I think Roberts, who has upheld the ACA previously and shows some connection with reality will uphold. Gorsuch, I don’t know. Had these been normal times I think he would have voted to destroy the ACA, but I THINK he’s bright enough not to want to destroy it in the middle of a pandemic and thus save the Republican Party from themselves. My guess, as a foreigner, Alito, Barrett, Kavanaugh and Thomas will vote to overturn the entire Act, Breyer, Kagen and Sotomeyer will vote to uphold in full, Gorsuch and Roberts will rule that some parts are unconstitutional but uphold the key parts. Where that leaves everyone, I don’t know.
When will we find out? It’s likely to be some time, right?
Frankensteinbeck
I am optimistic on almost every issue, but I think the odds of the ACA being struck down are better than even. It’s not because the Trump justices are generally awful, but because they are actually the McConnell justices, and I think the #1 priority in choosing them was overturning the ACA. McConnell is more obsessed with wiping the first black president from the history books than Trump, and I think Barrett’s White House interview was so short because it went “Will you end Obamacare?” “Yes.” “You’re hired.”
However, I acknowledge that in Gorsuch McConnell did not get what he thought he was getting. Gorsuch is merely awful, while still being an actual judge with an actual judicial philosophy, awful as it is. We have a chance.
Steeplejack (phone)
Should be “attorneys general” in the second sentence.
CliosFanBoy
It’s DEAD by at least 5-4. bastards.
Another Scott
IANAL, but I assume that the SCOTUS will decide narrowly that the lower court did something wrong that needs to be fixed, so will kick it back downstairs. And then the process will start up again.
Depending on how the Warnock and Ossoff races go, the Congress could easily fix any issues, and Biden’s DOJ won’t argue in favor of destroying the law. But we have to fight for it and every part of sensible self-government every single day.
Grr…
Cheers,
Scott.
Brachiator
The Court is going to listen to arguments? I thought that the new conservative absolute majority would pull out their Ouija board and consult with the dead spirits of the founders for their originalist opinion.
I got no clue what this Court may do. However, I think that Roberts should find a way to uphold the ACA or risk losing control of the court to the other conservative justices. This would inflame McConnell and other right wing goons, but signal them that the Court intended to retain some independence from the conservative mob.
mad citizen
@dr. bloor: “I expect ACA to prevail, with Roberts and Gorsuch siding with the sane bloc, but the fact that this is even a thing, regardless of the outcome, is a terrifying peek into the future.”
I am right there with you. It seems like our country has split into “sane” and “insane”.
It would be cool if Obama showed up in the audience to give not some side eye, but some front eye to the R litigators and some of the justices.
evap
What really scares me is that I think the chances of both runoffs in GA going the right way are low. Warnock has a good chance, I think, but I’m guessing that Purdue survives. The prospect of a GOP controlled Senate is scary! The map for the dems looks really good in 2022, but it will be a midterm election and I’m thinking that the House could flip back to the GOP. What happens with a Dem Senate and a GOP House???
Yarrow
It’s really quite something to watch my government argue that I should die. The fear hanging over people who desperately need the ACA and the toll these endless legal battles take on their mental and physical health as a result should not be discounted. It’s a form of abuse.
azlib
It is interesting that the Federal Goverment is arguing to repeal the entire ACA, but is still administering the ACA. Seems inconsisent to me, since in the past the government has often decided to not enforce a law it considers unconstitutional. Why are they still enforcing this one?
Yarrow
@azlib: It makes me wonder if the Supreme Court will announce their decision immediately with some excuse like, “Because of the urgency of this issue.” If they decide against it would throw the ACA open enrollment into chaos.
dr. bloor
@Yarrow: Unlikely, and not a bad thing for the good guys in the Senate run-offs. Loeffler and Perdue have to be put on the record about how they view the merits of the case and preferred outcome.
Tim C.
@azlib: Kabuki theatre.
This is classic “We have to argue for something we don’t actually want” which pretty much defines the GOP these days. More examples.
Calling it a death cult isn’t wrong.
Mart
Just a reminder that Missouri’s Josh Hawley was the Federalist Society approved MO AG backing this case while running for Senate. He blasted the airwaves with his family, his kid with a preexisting condition, and the tag-line nobody will worker harder to protect preexisting conditions than me, easily defeating Claire “the centrist” McCaskill. STL Post Dispatch said it was not a lie, you know, because of the (nonexistent) replacement plan. This “populist” fascist is a lot smoother and sharper than Trump. Keep an eye on him. Also too, the ACA is dead, either by the Supremes, or in four years when this jerk is President.
Butter emails
@evap: I suspect that odds favor the races both going the same way with a slight chance of Warnock pulling out a win with Ossoff losing. No sure which side has the advantage as turnout without Trump on the ballot is a big question mark.
SiubhanDuinne
@Anonymous At Work:
Rotating tag?
/s
wenchacha
@dr. bloor: I know Stacey Abrams is the smartest person in the room on this. I wonder if she knows how the vote got so messed up in Georgia, and can stop it from happening in January.
evap
@wenchacha: In what way was the vote messed up? I thought it went remarkably well considering the pandemic and the huge increase in absentee ballots submitted. The early voting in Atlanta went smoothly for the most part. Fulton county used an arena for an early voting site and by all accounts there was hardly any waiting in line. Apart from the first day or two of early voting, it went well in Dekalb county.
Frank Wilhoit
It has been argued (I forget by whom, exactly) that the ACA will be left intact because abolishing it would dry up too many streams of skimmable funding. This, for example, is why Ohio (to so many people’s naive surprise) took the Medicaid expansion.
JPL
@Tim C.: This. Yup I wish someone would mention that the cult wants to remove millions of children off of Medicaid. Their ‘prolife’ views end at childbirth.
Jaysails
@Yarrow: This. It is truly disturbing to realize how little I and people like me matter to the Republican party. I feel as though we’re seen mainly as an unnecessary expense.
MomSense
@Yarrow:
The modern Republican Party is a domestic terrorist organization. No, I do not know think I am exaggerating.
cain
I don’t think we are going to know how it is going to rule, but if it was negative and gets decieded before the GA senate races we would have a strong case to show that if we don’t have the Senate health care is dead and a shit ton of people are going to be out of healthcare during a pandemic which is now really getting its mitts into everything.
You’d think normally this would be a bad look – but somehow Republicans make it work because it’s a death cult.
Frank Wilhoit
@Tim C.: It’s isn’t wrong, but it is a second-order effect. The common thread is infantility.
CliosFanBoy
@MomSense: no, you’re not exagerating. sad but true.
wenchacha
@dr. bloor: I know Stacey Abrams is the smartest person in the room on this. I wonder if she knows how the vote got so messed up in Georgia, and can stop it from happening in January.
@evap: I can’t give you the nitty gritty, but I think there was discrepancy btw. registered Dems and Republicans, and how the votes did not reflect the percentages. And I should have specified, not in this presidential election, but maybe the previous ones, like where Stacey Abrams lost to the man in charge of election in Georgia.
evap
@wenchacha: there were definitely problems in the 2018 election. I think one of the reasons GA flipped was due to GOTV and other efforts by Fair Fight (Stacy Abrams’ group) and other groups.
JPL
Why are some members of the Supreme Court talking about wheels and flags? I miss Scalia.
nevemoor
One thing I’ve not understood about this farce: if setting the mandate to $0 is unconstitutional, why wouldn’t a remedy be to reject the amendment and reset it to 2.5%
WaterGirl
@wenchacha:
How the vote got so messed up in Georgia? The dems won Georgia, so how was it “so messed up”?
JPL
@nevemoor: I thought of that also, but apparently they are speaking about additional paperwork as being harmful. Amy wants wheels on the bus, and Kavanaugh wants to compare health care to a flag mandate.
we’re f..ke
Verrilli is good.
Ruckus
@Yarrow:
I wouldn’t call it a form of abuse, just straight out abuse. It is a form of slavery, of being against an entire group of people who can not afford proper health care because of political and financial hate.
WereBear
@cain:
They assure their voters that the bad things will happen to THOSE people, not to them. Which might be even more attractive to the spiteful who keep voting against their own Medicaid expansions.
RobertDSC-Work
I think with Barrett on the Court, any tea leaf reading will be moot. They’re going to kill it and we’ll have problems because of that.
Another Scott
@JPL:
FWIW.
Cheers,
Scott.
piratedan
@RobertDSC-Work: well, if they kill it, guess what just became a campaign issue in the Ga Sen recount…. It will absolutely be a huge ass suck for those caught out in the open.
Maybe the court is smart enough to understand this, but hey, they shoved Barrett onto the court for a reason, maybe they don’t give a shit any more.
Omnes Omnibus
@piratedan: You won’t see a decision in this case before the run-offs.
JPL
@Another Scott: You should post that upstairs..
marcopolo
I get my health care coverage because of the ACA & through the marketplace. I did not have health care of any kind for a decade for it passed. It was a big fucking deal & I hope the SC doesn’t decide to legislate from the bench. The Rs had their shot at repealing it in 2017 & failed (though honestly, should the Rs get a trifecta again they’ll probably be successful).
mad citizen
@Another Scott: Well Kavanaugh…..I like beer.
Yarrow
@MomSense: I agree with you.
Boris Rasputin (the evil twin)
@Jaysails: “If they are likely to die, then they had better do it, and decrease the surplus population”
-Someone named Scrooge.
glory b
@WaterGirl: It’s paywalled, but Sherilynn Ifill (my pick for a Supreme Court position fyi)wrote a slate.com article about how this election was not actually smooth, the difficulty black voters have is getting baked into the system, waiting for hours and hours to vote, not to mention armed Trump supporters showing up at polling places in Florida, North Carolina and Louisiana, an Alabama sheriff threatening to arrest a black Dem poll watcher (there legally), flying confederate flags at a polling place in Hattiesburg MS.
She wrote that the NAACP got over 32,000 complaints on election day. Two elderly voters in Alabama, who waited for hours, fainted while in line.
The NAACP study showed that residents of black neighborhoods waited 29 percent longer to vote last week than they did in 2016.
Dems won, and I’m VERRRRY glad we did. I vote in a black neighborhood in Pittsburgh, went early and waited only a few minutes. We won, but the efforts of voters in those places can’t be forgotten. I have to agree with Ms. Ifill, it wasn’t smooth. Think of the victories we could have if it was.
J R in WV
If people lose their health care, many folks will die a miserable and preventable death. Millions of suddenly dead folks from preventable causes!
Look at the perverted lawyers and politicians who have fought daily for years now to destroy Obamacare because a black president fought successfully to provide health care to the whole nation. Make no mistake, this is obviously attempted racist genocide we are watching take place. An industrial scale lynching!
Amazing that these racist theocrats seem to be totally and blissfully unaware of the revenge factor as they attempt genocide today. They seem completely unaware that killing millions of people in a genocide might bring about repercussions that might not resolve necessarily in the favor of the racist genocidal killers.
These theocratic racists are acting as if they were still Masters in the Jim Crow South, and able to torture Emmett Till to death with impunity. Trigger warning, the link is to a photo of Till after he was killed, it is horrible and reflects on those trying to commit mass murder by court order today. Remember, his mother made her point by insisting on an open casket funeral for her lynched and unrecognizable 14-y-o son. These are the people we are fighting still, today!
lumpkin
Saying that congress tried and failed to repeal the ACA is inaccurate. Congress simply decided not to repeal it. It’s kind of nit picky but saying they tried and failed makes it sound like it was the right thing to do but congress just couldn’t quite pull it off. Maybe the Supreme Court should help out there.
Liberals seem to have a hard time framing their position and often accept the other side’s perspective and argue from there.
Miss Bianca
@Yarrow: Seems to me like it would also hand those D Senate candidates in GA an iron-clad ad set of “see, this is why you vote for us, not them. WE are the ones who want you to live, not die.”
thalarctosMaritimus
@Anonymous At Work:
WASF.
ET
If I was a Supreme I would be Wo dering why they are back. But then they choose the cases.