Obamacare is Still Constitutional

Having guessed right last time about SCOTUS's take on the Obamacare individual mandate, I am emboldened to guess again now that the Court has agreed to hear the latest challenge. Only this time, I'm afraid I may only be predicting what the dissenters will say.

In NFIB  v. Sibelius, Justice Roberts opined, correctly in my view, that the individual mandate in the ACA, which imposed a penalty tax on those who don't have health insurance, was a valid use of the tax power and was, therefore, Constitutional. At the same time, Roberts's opinion included dictum to the effect that the mandate was not authorized by the interstate commerce clause.  Seizing on the latter dictum, the idiot Republicans in charge of the Senate came up with a brilliant idea: reduce the penalty tax to zero. That way, there would be no tax on which the supporters of the mandate could hang their hats.

Congress eliminated the penalty in the tax cut act passed in 2017. They did not simply repeal the ACA, because, under the Senate's rules, they could reduce taxes by a simple majority, whereas actually repealing the law would require a vote that could be filibustered.  (Why Democrats want to get rid of the filibuster is beyond me.)

In their cynical attempt to kill the ACA by cutting its femoral artery, the GOP has, in my view, instead repealed the mandate and left the ACA legally, if not practically, unscathed. Without a penalty, there is no constitutionally cognizable mandate, and, without a mandate, there is no case. The resulting statute may not make sense, and it may not be actuarially sound, but it is what Congress has wrought, and it imposes on no one any burden the Constitution forbids. So, what's the problem?

The district court judge who ruled that the law was rendered unconstitutional by removal of the penalty tax wrote, in effect, that the mandate:

(i) survived removal of the penalty even though there is no legal consequence to ignoring it, 

(ii) is, by the logic of the opinion in NFIB, unconstitutional absent a tax to back it up, and 

(iii) is an integral part of the Act's structure, so that in being struck down, it takes the entire ACA with it. 

The district court's opinion has two key findings. First, the court determined that removing the penalty was not the same thing as removing the mandate, because the language imposing the mandate is still in the Internal Revenue Code (the provision was obviously not drafted by tax lawyers), and so  some people still feel obliged to obey it.  A handful of individual plaintiffs were actually dredged up to claim that they bought insurance out of respect for the mandate in the amended law. Second, and most crucially, the court found that the mandate was an integral part of the ACA structure and so its failure rendered the whole act void.

Neither of these findings can withstand much scrutiny. Congress does not create wrongs without remedies. If there is no sanction for non-compliance with the mandate, the mandate becomes "surplusage," words that Congress would have removed if it were doing a better job of drafting. There is no rational basis for leaving the mandate in the law without a penalty. There are some irrational reasons - e.g., so that it could be declared unconstitutional - but SCOTUS should (and I hope will) refuse to accept, without an actual Congressional finding, that Congress intended to pass an unconstitutional law.

Sound jurisprudence demands instead that the Court simply declare the mandate void, rather than "accuse" Congress of intentionally sabotaging its own act.  Declaring the mandate void would obviate people's duty to obey it, providing complete relief to those poor sots who feel obliged to buy insurance despite the absence of any penalty for not doing so. (Obeying a law that Congress has implicitly repealed does not cause the law not to have been repealed.)

Removal of the penalty also makes untenable the court's finding that the surviving "unconstitutional" mandate is an integral part of the ACA. No doubt, the mandate was an integral part of the ACA when violating it gave rise to a tax. But, as they say, that was then, and this is now. If Congress removes the penalty without reasserting the centrality of the mandate, it must also be presumed to have "reconsidered" the centrality of the mandate.

The district court found that Congress did retain its finding that the mandate was an integral part of the law. That conclusion was based on Congress's failure to remove the language in the ACA that says so. But, as the judge said, removing the language would have violated Senate rules. Therefore, no more can be inferred from failure to remove the language declaring the mandate integral than can be inferred from failure to remove the mandate itself. If Congress commits itself to drafting poorly, all the Courts can do is interpret what is left. In this connection, it's worth noting that the whole section of the ACA defending the mandate was predicated on Congress's power to regulate interstate Congress. Arguably, SCOTUS voided the entire section when it said in NFIB that the mandate was not supported by that clause.

The district court judge recognized that removing the penalty would likely undermine Congress's intent in passing the ACA. But if that's the case, the repeal of the penalty should be regarded as repeal of the ACA, something the Senate rules do not permit, and so, cannot have been the Congress's intent. Yes, there's a certain amount of "gotcha" reasoning here. I am urging the Court to take Congress at its (implied) word that it intends its acts to be law, so the least possible damage should be done to a defective law to enable as much of it as possible to remain law.

In this case, the least damage is done by treating removal of the penalty as nullification of the mandate, with whatever practical consequences that may have. If the district court is right that the amended law does not work without a penalty tax, Congress is free to restore the penalty or create some other subsidy to make the ACA's pre-existing conditions rules affordable. That Congress made the ACA stupid is not reason enough to infer either that it intended to repeal the law, in violation of its own rules, or render the law unconstitutional, in violation of the Constitution.

Perhaps the ACA's opponents should have argued that the surviving mandate opens non-compliers up to civil liability, some sort of class action of payers against non-payers for the damage done to the healthcare system by their failure to comply with Federal law. Such liability would give the mandate teeth, which would subject it to the Interstate Commerce test that it failed last time around. Thing is, the mandate is in the Internal Revenue Code. That's no place to find substantive private law. I will, therefore, defer consideration of civil liability until someone raises it.

In short, the cynical GOP assholes who control the US Senate have put SCOTUS in a bind. The Court must hold that the 2017 amendment to the ACA (i) implicitly repealed the ACA, contrary to Senate rules, (ii) intentionally rendered its own law unconstitutional, contrary to its raison d'etre under Article I of the Constitution, or (iii) implicitly removed the mandate, but did not repeal the entire ACA or make it unconstitutional. That choice seems easy to me. But maybe that's just me.