One of the strangest spectacles during Associate Justice Amy Coney Barrett's confirmation was the wave of Republican Senators denying that they could possibly agree with the legal arguments that 18 Republican attorneys general brought to the Supreme Court in a case asking the judges to Repeal the Affordable Care Act.
"Nobody believes the Supreme Court will knock down the Affordable Care Act," said Senate Majority Leader Mitch McConnell (R-KY) in a debate on October 12, the day the Democrats were on the Justice Committee of the Senate investigated then-candidate Barrett over whether she would knock Obamacare down.
On Tuesday, the California Supreme Court will hold an oral argument against Texas in an attempt to overturn Obamacare through a court ruling widely believed to be risky, even by many prominent non-Senator Conservatives who are opposed to the Republican nomination nominate outrageous to the Supreme Court could vote to crush the law.
Yuval Levin, a prominent Conservative politician, wrote in the National Review that the Texas lawsuit “doesn't even deserve to be called silly. It's ridiculous. "The editors of the Wall Street Journal, a tinker-friendly bastion of opinion, called this lawsuit a" Texas ObamaCare Blunder. "
Still, Judge Reed O'Connor, a federal district judge and former Republican Senate who tried this case at trial level, ordered the ACA to be overturned entirely. Two judges on the Republican Court of Appeal agreed with much of O’Connor's reasoning in their own ruling. So there is a very real chance that the Supreme Court, which now has a Conservative majority of 6-3, will take this opportunity to end Obamacare.
The case rests on the theory that when Congress overturned a single provision of the ACA in 2017 – the so-called "individual mandate" – it actually introduced a fatal flaw in legislation that made it necessary to fall. If the Supreme Court acquires this dubious legal title, it would mean 20 million or more people could lose health insurance overnight.
And with Republicans well-positioned to control the Senate for at least the next two years, Congress is unlikely to do anything to correct that situation if the Court of Justice decides to withdraw healthcare from millions of Americans. This would leave former Vice President Joe Biden a diabolical choice in the event that Biden becomes president: defy the Supreme Court or leave millions uninsured on his watch.
How we got here
As originally decided in 2010, the ACA's individual mandate required most Americans to either purchase health insurance or pay at least $ 695 in additional taxes each year. The Court upheld this mandate as a valid exercise of the power of Congress to collect taxes in NFIB v. Sebelius (2012).
Seven years later, Donald Trump was President, and Republicans controlled both Houses of Congress. They spent much of 2017 debating whether to repeal the entire affordable care law. But the Republicans ultimately lacked enough votes in the Senate to fully attack the law. Instead, they passed a comprehensive tax law that removed only one provision – the individual mandate.
While the ACA's 2017 amendment kept the original language of the law requiring most Americans to have health insurance, it lowered the tax penalty to zero dollars for those who don't. The individual mandate now does absolutely nothing.
The Texas plaintiffs allege this zeroed mandate is unconstitutional. If the original mandate was a valid exercise of the tax powers of Congress, they argue, a zero dollar tax is not a tax at all, and so the ex-mandate must be put down.
It's a clever kind of "gotcha" argument, but it's also not immediately clear why it matters whether or not a piece of legislation that literally does nothing is constitutional. Right now, individuals are required to either get insurance or pay zero dollars. If the non-mandate no longer exists, everyone still has the choice of either taking out insurance or paying nothing at all.
To achieve something that really matters, Texas plaintiffs need to do more than convince the judges that a non-Burgess mandate is unconstitutional. You must also assert yourself on two other points, and the plaintiffs' arguments on these points would be ridiculous if thousands of lives were not at stake.
No federal court should be allowed to hear the Texas case
Before anyone can challenge a law in federal court, they must prove that they have been violated in any way by that law, a requirement known as "standing." But the Texas plaintiffs are opposing a provision that does nothing and no one should be ready to contest it as no one will be hurt by a zero dollar tax.
The plaintiffs seek to circumvent this problem by pointing out how the language of the ACA in which the mandate is set out is structured. The first subsection of this segment of Obamacare states that most people must have insurance; The second is that people who do not pay a tax penalty; The third sets the amount of that penalty, which is now zero dollars.
Plaintiffs base their reasoning on the word "should" and argue that this mandatory language is still a legally binding requirement for taking out insurance, even if the penalty for non-compliance is nothing.
However, this argument cannot be compared to the NFIB Supreme Court decision. As Chief Justice John Roberts wrote in that statement:
Neither the Affordable Care Act nor any other law has any negative legal ramifications for not having to purchase health insurance, other than requiring payment to the IRS. The government agrees with this reading and confirms that someone who would rather pay than get health insurance has fully complied with the law.
The Supreme Court has already dismissed the Texas plaintiffs' argument that they are legally required to take out insurance. There are no “negative legal ramifications for not taking out health insurance” other than an obligation to pay a tax penalty. And that penalty is now zero dollars, which literally means everyone has "fully obeyed the law."
The problem of separability
Even assuming these plaintiffs have a position, they are not really arguing that Obamacare is altogether unconstitutional – they are simply arguing that the zeroed mandate is invalid. However, in the weakest part of the Texas plaintiffs' argument, they argue that the court must overturn the entire law if the zero dollar tax is invalid.
When a court rejects part of a statute, it often has to ask whether other provisions of that statute should go along with it. This investigation is known as "severability," and usually requires the courts to speculate a little by asking what hypothetical law Congress would have passed had a provision of that law been known to be struck down.
Such speculation is not necessary in Texas, however, as Congress has already told us what to do if the individual mandate is removed. Recall that lawmakers spent most of 2017 debating how much Obamacare needs to be overturned before finally finding that it lacks the votes to overturn more than the individual mandate. In other words, we know that Congress would have passed a law that removed the mandate and kept the rest of the law, since Congress already got rid of the mandate and kept the rest of the law.
In addition, the Supreme Court ruled that courts should try to salvage as much of a law as possible if they decide that a single provision needs to be deleted. As Judge Samuel Alito wrote for the Tribunal in Murphy v. NCAA (2018), "For other … regulations to fall, it must be clear that (Congress) would not have made the regulations that are within its jurisdiction. regardless of those who are not. & # 39; ”
If the court applies the rule announced in Murphy, the bulk of Obamacare will have to remain in place even if the zeroed mandate is knocked down.
The president could potentially protect the health care of many Americans if the Supreme Court knocks Obamacare down
With Republicans overwhelmingly preferring control of the Senate for the next year, the law is unlikely to see a correction if the court knocks Obamacare down. But there is one radical – if not unprecedented – step a Democratic president could take to protect at least some of the millions of Americans who would lose their health insurance if the Texas case ends badly for them.
In his first inaugural address, President Abraham Lincoln not only criticized the Supreme Court's decision on slavery in Dred Scott v Sandford (1856), but also attacked the idea that the Court should have the final say in interpreting the Constitution:
(I) If the government's policy on major issues affecting the whole people is to be irrevocably determined by decisions of the Supreme Court once the people are embroiled in ordinary litigation between parties for personal actions, the people are no longer their own rulers who had practically placed their government in the hands of this important tribunal.
Lincoln conceded that Dred Scott was binding on the parties to the lawsuit, but rejected the idea that either Congress or the Presidency would be bound by it. The Lincoln government issued a passport to a black man and defied Dred Scott's claim that blacks cannot be citizens. And Lincoln signed a law banning slavery in the territories, opposing Dred Scott's conclusion that slaves cannot escape bondage even after entering free territory.
This idea that each branch of government has the power to interpret the constitution – even if one branch disagrees with the other – is known as "departmentism". This concept at least gives the President the power to limit the effects of a Supreme Court decision.
In the likely event that he becomes president, and if the court knocks Obamacare down, Biden could order federal law enforcement agencies not to enforce the decision. It could also direct the Treasury Department to states and individuals authorized by law to provide subsidies, as well as executive pardons, to pay out those subsidies to protect them from federal law that could plausibly prosecute a future administration .
The President cannot completely neutralize a decision by the Supreme Court. Lower federal courts are bound by higher court rulings so no one can get a court order against states or insurers that violate their Obamacare obligations. But Biden could at least reduce some of the damage a decision knocking down the ACA would do to millions of Americans.
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