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The Party of the Rule of Law

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The latest anti-ACA lawsuit to be brought in federal court is apparently based on Article XII of the United States Constitution, which states “Notwithstanding anything in the preceding text, no policy outcome inconsistent with the most recent platform of the Texas Republican Party shall be permitted”:

The legal theory underlying Texas is difficult to parse, but it boils down to an elaborate game of “gotcha.”

In 2010, Congress enacted the Patient Protection and Affordable Care Act. Among other things, the law contained three interlocking provisions — insurance regulations requiring insurers to cover people with preexisting conditions, tax credits helping individuals pay for insurance, and the “individual mandate,” which requires most people to either carry insurance or pay higher income taxes.

The purpose of the mandate is to prevent people from waiting until they get sick to buy insurance, thereby draining money out of an insurance pool that they haven’t paid into, and potentially endangering the insurance market. According to the Affordable Care Act, the mandate is “essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.”

Seven years later, Congress reached a different conclusion regarding the individual mandate. After multiple failed attempts to repeal large swaths of the Affordable Care Act, the Republican-controlled Congress gave up. It did, however, enact the Tax Cuts and Jobs Act of 2017, which effectively repeals the individual mandate by reducing the tax consequences of failing to obtain insurance to zero.

Thus, while the Democratic Congress that enacted Obamacare in 2010 deemed the individual mandate to be “essential” to other provisions of the law, the Republican Congress that amended Obamacare in 2017 reached a different conclusion. This is something that elected representatives are permitted to do in a democratic republic.

But the crux of the legal arguments in Texas is that the 2010 Congress’ conclusion that the mandate is “essential” is somehow binding on Congress in 2017. Thus, when Congress repealed the individual mandate in 2017, it was required to also repeal the law in its entirety — and because Congress failed to do so in 2017, the Republican elected officials argue in Texas, it is now incumbent upon the courts to do so.

There are so many problems with this legal theory that it is difficult to count them. For one thing, the Supreme Court has repeatedly embraced the “centuries old concept that one legislature may not bind the legislative authority of its successors.” So even if Congress believed in 2010 that an individual mandate is essential to maintaining the law as a whole, a later Congress is allowed to second-guess this judgment.

For another, one of the primary arguments in Texas is that the bulk of Obamacare is “non-severable from the mandate and must be invalidated along with the individual mandate.” But courts generally only inquire into which portions of a law are severable from the remainder when they strike down part of a law themselves. When a court strikes down some but not all of a broader statute, it must make its best guess regarding whether Congress would have preferred for some, all, or none of the remaining provisions to remain in effect. But here there is no need for courts to engage in such speculation here, because Congress has already answered this question.

Congress chose to repeal the individual mandate without repealing any other provisions of the law. Indeed, when Congress attempted to repeal more of the Affordable Care Act, it was unable to do so. So Texas effectively asks the courts to second-guess Congress’ answer to a question that lawmakers spent most of a year debating, and that Congress eventually decided quite definitively.

Congress in 2010 concluded that the law would function more effectively with a tax penalty to deter free-riding. They were right!  But, in this context, it is wholly irrelevant legally — Congress is not required to pass optimal policy, and nor is it required to repeal laws entirely if it makes changes that the majority that passed the original law would have considered suboptimal. And if this completely imaginary requirement existed, the logical remedy would be to restore the mandate, not to repeal the rest of the legislation. But the requirement is, in fact, imaginary, the newly modified law is not irrational in the constitutional sense. The lawsuit also argues that repealing the mandate makes the mandate unconstitutional because the mandate was only upheld as an exercise of the taxing power, which is evidently self-refuting — there is no longer any penalty for refusing to carry insurance, and hence even according to the logic of commerce clause holding in Sebeluis nothing in the ACA that exceeds Congress’s Article I authority. It’s a nice Catch-22 wingers have set up, though — if Congress passes the ACA with a mandate, it’s unconstitutional, and if it removes the mandate, it’s unconstitutional. This makes “but the Moops invaded the Iberian Peninsula!” look like brilliant legal reasoning. It doesn’t even have the frequent random italicization that characterizes a truly serious legal argument.

But surely a lawsuit this transparently ridiculous must be the work of a lone crank?

The latest effort to kill Obamacare is a lawsuit brought by 20 Republican governors and attorneys general…

And the punchline is that there’s a very real case that this lawsuit will actually win in District Court, since it’s before a partisan Republican judge and the Republican Party has become just that debased and lawless.

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