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Federal Judge kills Obamacare

Federal Judge kills Obamacare

If the ruling holds up on appeal, Obamacare is dead. As a doorknob. Not just the mandate or some other particular provisions. He killed the WHOLE THING.

https://commons.wikimedia.org/wiki/File:Barack_Obama_and_Joe_Biden_react_in_the_Roosevelt_Room_of_the_White_House,_2010.jpg

Reed O’Connor, a federal judge in the Northern District of Texas, just killed Obamacare.

If the ruling holds up on appeal, Obamacare is dead. As a doorknob. Not just the mandate or some other particular provisions.

He killed the WHOLE THING.

The Order (pdf.) is embedded in full at the bottom of this post.

Here’s the short version. Texas and other states sued to declare the individual mandate unconstitutional because in the recent tax reform the penalty for failing to pay the mandate was removed. (2nd Amended Complaint here) With the removal of the mandate penalty, the mandate no longer was a function of Congress’ taxing power, which was the basis upon which John Roberts and the liberal Justices on the Supreme Court upheld the constitutionality of the mandate in 2012. The Court conservative and Roberts had ruled the mandate violated the Commerce Clause, but Roberts broke with the conservatives on the tax power issue.

But there’s more.

The district court ruled that the mandate was an essential and inseverable part of Obamacare. Because the mandate was held to be unconstitutional and inseverable, the judge held the remainder of Obamacare to be unconstitutional.

The Court did not grant an injunction, so the Trump administration is under no obligation to terminate programs under Obamacare unless and until the Order holds up on appeal.

From the Order:

Resolution of these claims rests at the intersection of the ACA, the Supreme Court’s decision in NFIB, and the TCJA. In NFIB, the Supreme Court held the Individual Mandate was unconstitutional under the Interstate Commerce Clause but could fairly be read as an exercise of Congress’s Tax Power because it triggered a tax. The TCJA eliminated that tax. The Supreme Court’s reasoning in NFIB—buttressed by other binding precedent and plain text—thus compels the conclusion that the Individual Mandate may no longer be upheld under the Tax Power. And because the Individual Mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause—as the Supreme Court already held.

Finally, Congress stated many times unequivocally—through enacted text signed by the President—that the Individual Mandate is “essential” to the ACA. And this essentiality, the ACA’s text makes clear, means the mandate must work “together with the other provisions” for the Act to function as intended. All nine Justices to review the ACA acknowledged this text and Congress’s manifest intent to establish the Individual Mandate as the ACA’s “essential” provision. The current and previous Administrations have recognized that, too. Because rewriting the ACA without its “essential” feature is beyond the power of an Article III court, the Court thus adheres to Congress’s textually expressed intent and binding Supreme Court precedent to find the Individual Mandate is inseverable from the ACA’s remaining provisions.

Construing the Plaintiffs’ Application for Preliminary Injunction, (ECF No. 39), as a motion for partial summary judgment, the Court therefore DENIES Plaintiffs’ request for an injunction but GRANTS summary judgment on Count I of the Amended Complaint.

More:

The Court today finds the Individual Mandate is no longer fairly readable as an exercise of Congress’s Tax Power and continues to be unsustainable under Congress’s Interstate Commerce Power. The Court therefore finds the Individual Mandate, unmoored from a tax, is unconstitutional and GRANTS Plaintiffs’ claim for declaratory relief as to Count I of the Amended Complaint.

* * *

Applying these standards, the Court finds the 2010 Congress expressed through plain text an unambiguous intent that the Individual Mandate not be severed from the ACA. Supreme Court precedent supports that finding. And in passing the TCJA through the reconciliation process, the 2017 Congress further entrenched the intent manifested by the 2010 Congress.

* * *

All told, Congress stated three separate times that the Individual Mandate is essential to the ACA.25 That is once, twice, three times and plainly. It also stated the absence of the Individual Mandate would “undercut” its “regulation of the health insurance market.” Thirteen different times, Congress explained how the Individual Mandate stood as the keystone of the ACA. And six times, Congress explained it was not just the Individual Mandate, but the Individual Mandate “together with the other provisions” that allowed the ACA to function as Congress intended….

On the unambiguous enacted text alone, the Court finds the Individual Mandate is inseverable from the Act to which it is essential.28 ….

“In sum, Congress passed the minimum coverage provision as a key component of the ACA.” Id. at 599 (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.) (emphasis added); accord id. at 539 (majority) (“This case concerns constitutional challenges to two key provisions, commonly referred to as the individual mandate and the Medicaid expansion.” (emphasis added)). Not a key component of the guaranteed-issue and community-rating provisions, but of the ACA. The Supreme Court’s only reasoning on the topic thus supports what the text says: The Individual Mandate is essential to the ACA….

In sum, the Individual Mandate “is so interwoven with [the ACA’s] regulations that they cannot be separated. None of them can stand.” Wallace, 259 U.S. at 70.

* * *

The Court finds the Individual Mandate “is essential to” and inseverable from “the other provisions of” the ACA.

FLASHBACK

Severability was a major subject of oral argument the first time Obamacare came before the Supreme Court. See my March 28, 2012 post, Obamacare Oral Argument, Day 3 – Severability.

REACTIONS

https://twitter.com/realDonaldTrump/status/1073763695807877120

https://twitter.com/realDonaldTrump/status/1073761497866747904

———————————

Texas v USA – Obamacare Case – District Court Order Holding Obamacare Mandate Unconstitutional (12!14!2018)… by Legal Insurrection on Scribd

[Featured Image: Barack Obama reacts to the passing of Healthcare bill March 2010]

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Comments

WOW! I’m amazed that this happened. I also have zero faith though in any of the judges on the appeals court levels or SCOTUS to uphold this judges ruling.

Somehow this decision will be overturned.

This is going to explode tomorrow when everyone has their morning coffee and realizes what this judge did.

    Edward in reply to Blueshot. | December 14, 2018 at 11:58 pm

    I think the Fifth Circuit will uphold the District Court’s decision. But I’ve been wrong before, my wife has been telling me I’m wrong for almost 52 years now.

    PrincetonAl in reply to Blueshot. | December 15, 2018 at 6:46 am

    Sadly, this will be overturned.

    Like the T1000 in Terminator 2, this monster isn’t dying anytime soon. I would loooove to be wrong, but anyone who thinks this ruling killed Obamacare hasn’t seen enough horror movies.

    1) It will be appealed, and judges outside of Texas lack the cojones to sustain this

    But maybe I’m wrong … let’s see if these wimpy judges can stop the T1000 ACA.

    2) This overturning relies on the slender reed of severability. Slender reeds don’t stop T1000 ACAs

    Lack of severability means the whole thing gets overturned on a technicality. But technicalities cut both ways. Technically, Congress and the President have taken actions to sever parts of the law through lack of enforcement or other actions.

    So a court on appeal could rule that the intent of the people who passed the law was to include severability, since they act and treat it that way, and T1000 ACA keeps chugging.

    But wait … SCOTUS!

    3) The Supremes on SCOTUS previously voted 5-4 to uphold, so this changes nothing. T1000 ACA eats Justice Roberts for lunch.

    But wait … RBG might pass away, and then we get Amy Barrett. SCOTUS!

    4) The current Supremes on SCOTUS will vote 6-3 to uphold so swapping out RBG for a conservative does nothing.

    Say what? Oh, Brett Kavanaugh? Yes, BK supplied much of the logic and thinking to the government that Roberts used to save the law.

    https://scholar.google.com/scholar_case?hl=en&as_sdt=2,22&case=12283140068462647556&scilh=0

    Read the dissenting opinion by Kavanaugh. Pure swampy RINO baloney about making sure the IRS gets its money. A lot of technical legal mumbo-jumbo, but the swamp protects its own and BK is born and bred in DC.

    But maybe Brett is a born-again conservative after a close encounter with Democrats in Congress and he votes to overturn along with Barrett.

    T1000 ACA is dead!

    Nope …

    5) The Court will allow it to stay in place until a plan for dismantling it is put together.

    T1000 ACA is now severely wounded.

    But this is like getting BREXIT passed! And defeat will be snatched from the jaws of victory.

    And so it will live on while Congress fights to figure out how to replace it. And if this takes more than 6 years to play out, then Trump will no longer be in office, and without a backbone of steel to help them fight the T1000 ACA, Republicans will roll over.

    Case in point: how did NAFTA include a clause to protect tech companies right to censor conservatives? Republicans. Remember, they don’t like us anymore than Democrats. They just pretend better.

    I pray to the Lord that I am wrong. Can someone please tell me / show me where I am in error?

Prof, WHERE did you learn of it?!?!

I am not a lawyer and am seeing a wide variety of opinion on the significance of the ruling. Is this likely to stand? What appeals court will it land in?

John Roberts has ObamaCare’s back.

So can RGB drop dead in time for Trump to appoint another justice and maintain the ruling?

    My2centshere in reply to RodFC. | December 14, 2018 at 9:23 pm

    I’m afraid to give you a vote but I completely thought the same thing. So what the heck I know I’m burning for just ????.

Unfortunately, I think the comment about Roberts is true. When one considers the betrayal of principle and the manner in which he changed his vote, it is hard not to suspect that someone has some dirt on him that he doesn’t want exposed.

Colonel Travis | December 14, 2018 at 9:35 pm

If the ruling holds up on appeal

Good luck with that. I’ll get the warm fuzzies when it’s shot down at every level. With SCOTUS, we don’t just have one judge who bent over backwards to allow it, we now have the very judge who, in a lower court, explained how it could be done. Who knows whether Kavanaugh follows his own hypothetical, but I am not counting on a win.

    The Friendly Grizzly in reply to Colonel Travis. | December 15, 2018 at 11:06 am

    I have a gut feeling Kavanaugh will not turn out to be what we expect, on any level.

      One of the purposes of the evil vicious hearings was to scare Kavanaugh from incurring any more wrath from these animals. His children and other family members were attacked verbally and otherwise and the media cheered on the attacks.

      He knows that he will have to vote their way to survive. The justice department, FBI etc will not protect him or his family. Mob rule has worked.

So, when do I get my premiums refunded!!!!

It’s a Christmas Miracle!!!!

I would like to thank Reed O’Connor for his ruling, which counters the Christmas Eve vote that foisted this travesty on the American people.

Please correct me I misunderstand, but the logic behind this ruling is that because there was no severability clause, *any* substantive change automatically invalidates all other statutory elements passed in the original bill?

That seems to make sense when approaching an original bill and claims against it, but it seems curious that this lack of severability would make it impossible to make important changes of note.

This raises the question: How often throughout the history of the United States under the Constitution has Congress passed laws that significantly altered the statutes that were originally passed without a severability clause with portions that seemed to rely on each other to one degree or another?

    It means a court can’t sever the bits, and simply lop off pieces which don’t work, leaving the remainder functional. It doesn’t mean Congress can’t modify its own bills.

      Since Congress is the one that changed the provision, does this not mean that this ruling is facially ridiculous?

        Colonel Travis in reply to The Political Hat. | December 14, 2018 at 11:12 pm

        Huh?

        SCOTUS already ruled that the mandate was unconstitutional under the Interstate Commerce Clause. With the tax penalty eliminated, where does the power to force people to buy insurance come from?

          The question is not whether the mandate is Unconstitutional, but if whether this makes all other statutory provisions also Unconstitutional, even though the Unconstitutional nature of the individual mandate was applied after passage and prior SCOTUS review of the original Congressional act.

          My question is: Do statutory provisions originally from a Congressional bill that was unsevarable remain unseverable due to changes via another Congressional bill which itself severed old language from said bill?

          Colonel Travis in reply to Colonel Travis. | December 14, 2018 at 11:38 pm

          No, the question IS whether the mandate is unconstitutional. That’s the sole reason this case was heard and adjudicated.

          I’m not trying to be obtuse but I have no idea what your question means. What other statutory provisions are you talking about?

          The Colonel is correct, the decision that one portion of the statute is unconstitutional with a lack of a severability in the statute, there is no choice for the courts but declare the entire statute unconstitutional. The only part of the statute which was saving the statute was the declaration of the SCOTUS that the “fine” was constitutionally fine because it was not a fine but a tax. Now that the fine was removed from the statute, the remainder is no longer protected by the “tax” decision.

          I’m sure that if Roberts can figure out a way to keep it alive, he will. But it won’t be based on the ability to require citizens to buy a commercial product based on the government’s ability to tax.

          Having read the original Roberts decision some years ago when it was released, basically the mandate was widely touted as being the lynch-pin under which the entire system could not operate without. The Roberts opinion essentially said that, yes it was the lynch pin, but so long as it was a non-coercive tax, and not a fine, it was sufficient to continue.

          I believe his intent was that, so long as it was not a sufficient cost to control peoples’ behaviour, that it was not a valid mechanism for compelling them to buy insurance, under the idea that if it did become sufficiently onerous, it would become a fine, and therefore outside of the jurisdiction of the Congress.

          We shall see what happens now. My guess is there is a ruling that it is still a tax, even if it is not reported on tax forms and has a zero value. Which would be in line with the original reasoning of the Roberts decision; i.e. it was only a fine if it was onerous. So the monster will likely continue its slow rolling demolition of the US healthcare industry.

          I’m more bothered that we could not get enough votes to shut the beast down, but that’s the caliber of our political class these days.

          Voyager:

          if it did become sufficiently onerous, it would become a fine, and therefore outside of the jurisdiction of the Congress.

          Yes, that is exactly what the decision said.

          My guess is there is a ruling that it is still a tax, even if it is not reported on tax forms and has a zero value.

          No need for that. Congress repealed the tax. End of story. There is no tax, and there never was a mandate, so there is now nothing.

        Don’t fret, folks. Mitch and Nancy will join forces in a bi-partisan manner and give us some nightmare called Trumpcare. It will contain all the worst parts of O-care, but will be signed into law because Nancy will include funding for a wall.

        And Mexico still won’t pay for the damned thing.

        The Political Hat:

        Since Congress is the one that changed the provision, does this not mean that this ruling is facially ridiculous?

        Yes, exactly. That is the point I made in a comment below.

        Colonel Travis:

        SCOTUS already ruled that the mandate was unconstitutional under the Interstate Commerce Clause. With the tax penalty eliminated, where does the power to force people to buy insurance come from?

        It doesn’t. That is why Political Hat and I both think this ruling is wrong. There is no mandate; nobody has to buy insurance. Those who chose not to used to have to pay a tax; now they don’t, so the choice is simply buy insurance or don’t buy it.

        Do statutory provisions originally from a Congressional bill that was unsevarable remain unseverable due to changes via another Congressional bill which itself severed old language from said bill?

        Obviously not. Congress severed them.

        Voyager, I’m glad to see at least one other person here bothered to read the Roberts decision on NFIB before commenting on it. Most commenters here seemed to operate on the level of “0bamacare bad (which is true) therefore judge who found for it also bad” without even considering what he actually wrote. The essence of which was, “Congress lies; whether for good or for bad we must always look at what it did, not at what it says it did”. That’s an important statement, and a very conservative one.

          Milhouse in reply to Milhouse. | December 16, 2018 at 4:02 pm

          Interesting, but I think his argument fails on one crucial point. Its entire premise is that there is a mandate. He quotes Josh Blackman quoting the CBO: “Compliance, then, is probably affected by an individual’s personal values and by social norms. Many individuals and employers would comply with a mandate, even in the absence of penalties, because they believe in abiding by the nation’s laws.”

          But the Supreme Court already found that this mandate never existed. It specifically said that had there been a mandate it would have struck it down, but it couldn’t find one in the act. And a key factor in the decision that the money was not a fine but a tax was the fact that it was perfectly lawful for a person to choose to pay it rather than buy the insurance. It is, of course, not lawful for anybody to choose to break any legal mandate and pay the penalty. Therefore the fact that ACA explicitly permitted people to make this choice proved that it was not a mandate.

          Therefore the CBO’s opinion in 2008 (before the ACA was drafted) that law-abiding people would choose to comply with a mandate even without any penalty is irrelevant; even such people would not choose to comply with a mere suggestion that the law explicitly permitted them to decline. There never was any mandate but only a tax, and Congress has now severed the tax from the rest of the act by zeroing it out without repealing the rest of the act.

    IANAL, but IIRC, and I’m sure I do, the ACA did NOT contain a severability clause. This ia a clause which states that if one part of the law is found unconstitutional, the rest of the law still applies. Absent such a clause, the whole bill lives or dies on the constitutionality of each part.

    http://www.ncsl.org/research/health/us-supreme-court-and-the-federal-health-law.aspx

    https://en.wikipedia.org/wiki/Severability

      If Congress can change one statutory provision without changing another statutory provision, which was part of an original unseverable bill, then does this not indicate that each provison, as a statute, stands alone, even if it was intended *originally* to work with now deleted language? Would not being able to change and delete language impugn a presumption of severability into it?

      If the statutes must be treated as a whole abet with internal amendments allowed, then isn’t this admission that the 2017 changes were a stealth full repeal and that other statutes could be targeted by the Left by making a superficially innocuous change?

      This seems like a moot point, perhaps, since what I’m seeing now is that the argument isn’t based on the original severability, but that the mandate, even without penalty, is so integral to the workings of all other parts of the Obamacare so as to be a single provision.

      The question is, then, what does precedent have to say about how tied separate provisions have to be in order to be seen as inseparably one?

        Um, No as far as I know but I’m not a lawyer nor a politician (Thank God). Let me pencil in my mistaken opinion so somebody can correct me.

        Most laws WITH a severability clause have sections, such a A B C D E. If B is declared unconstitutional, the law then is ACDE without B. If Congress modifies the law instead (like they do to all of them on a monthly basis, it seems), the law then looks like AB1CDE. (I’m not sure if a law judged unconstitutional can them be modified during the appeal process to ‘fix’ the unconstitutional issue the court brings up, but it would seem rational)

        A law *without* a severability clause is a dead duck if any of the sections are declared unconstitutional, so instead of “ACDE” you have “”, *however* Congress can still dink with sections of the law as above, so if Obamacare had serious issues that a majority of congresscritters wanted to change, they could issue changes so it would look like “AB1CDE” as above.

        Sound better?

        Colonel Travis in reply to The Political Hat. | December 15, 2018 at 12:06 am

        OK with this comment, I see what you’re getting at. No, this ruling doesn’t put the entire U.S. Code at risk. Most complex laws passed by Congress have a severability clause. Obamacare did not.

        I’ll give you this from AEI:

        Severability analysis (what happens to the rest of a law passed by Congress when a portion is declared unconstitutional) at the Supreme Court is not always consistent. Sometimes, the desired legal outcome comes first, and then the Court works backward to come up with a rationale for it. (There goes my bar membership, for uttering such heresy!) The more polite language to use is that how such a remedy is shaped remains “discretionary.”

        But in most cases, a two-part test usually involves, first, whether Congress would have voted to enact the rest of the law without its unconstitutional provision (i.e., Did the essential “legislative bargain” require its retention?). Second (but not always in this order), can the rest of the law still function without the offending provision in the manner that Congress intended? (This is sometimes called the functionality test.)

        Although some legal or health policy analysts sometimes blow smoke to the contrary, there are no presumptions to be drawn from the absence of a severability clause in a piece of challenged federal legislation, and the Court does not automatically presume that it must try to retain as much of a constitutionally flawed law as it can. But it generally will refrain from narrowly reconstructing or rewriting such laws, to avoid creating new versions that Congress never adopted.

        http://www.aei.org/publication/severability-for-obamacare-the-first-cut-is-the-deepest/

In NFIB, the Supreme Court held the Individual Mandate was unconstitutional under the Interstate Commerce Clause but could fairly be read as an exercise of Congress’s Tax Power because it triggered a tax.

Although the Tax Power is Congress’s (per Article 1 Section 8), a revenue bill (i.e., a tax) must originate in the House (Article 1 Section 8). And as everyone on the planet knows, Harry Reid played some card tricks to pretend that Obamacare was originally a House bill. This obvious skullduggery remains a horrible precedent.

    Milhouse in reply to tom_swift. | December 15, 2018 at 11:50 pm

    It was originally a House bill, but one that said something entirely different. You’re entitled not to like this, but you’re wrong to claim Reid set a precedent of any kind by doing so, because he didn’t. What he did, amending a bill by deleting all its words and substituting other words, is completely normal and routine, not just in the US congress but in pretty much every legislature in the world, and has been for well over a century.

      tom_swift in reply to Milhouse. | December 16, 2018 at 1:20 am

      but you’re wrong to claim Reid set a precedent of any kind by doing so

      And you’re wrong to imply that I made any such claim. Of course Harry Reid didn’t invent this particular style of sleight-of-hand. But an old fraud is still a fraud. Article 1, section 8, says that all bills for raising revenue must originate in the House. It does not say that all titles and numbers of bills for raising revenue must originate in the House. A law is specified by its text, not by its title or number.

        Milhouse in reply to tom_swift. | December 16, 2018 at 5:11 am

        You wrote “This obvious skullduggery remains a horrible precedent.” It doesn’t. It’s not a precedent at all, because the practice was already long-established long before Reid ever even thought of becoming a senator.

        And no, a bill’s identity does not depend on its text. Where did you get such an idea? If it did then every time it was amended it would be a different bill, which would mean the senate could not amend money bills at all, which is obviously not the case. So if the senate can amend money bills, how could you possibly set a limit on how much it can do so?

        As far as I know every parliament in the world, but certainly all those (including the US congress) whose traditions derive from Westminster, does the same thing. For all I know it was already in use in 1788.

Not liking how courts are being substituted for both the legislative and executive branches of government.

This should have been reversed in congress where it started. Just because it went “our way” this time, it doesn’t discount the 10 million other instances of judicial tyranny since Trump took office. The GOP has the majority and a willing POTUS, their inaction is both sloth and cowardice.

    Milhouse in reply to Andy. | December 15, 2018 at 11:56 pm

    It is the judiciary’s job to decide whether what Congress has done is within its powers, and to strike it down if it isn’t. It must do that job honestly, and a lot of decisions we’ve been seeing lately seem to be motivated by spite for Trump rather than by good faith, but where a court honestly believes a purported law is invalid (not good or bad, but not a law) then it must say so.

bwaahahahahaa. This decision is aimed right at Justice Roberts tortured ” it’s a tax” ruling. If I read this right, there is precious little wiggle room for the SCOTUS to now mitigate between their rationale for saving O-Care before, and saving it now that the mandate has been removed.

They can’t have it both ways. This is up to Congress. Congress removed the mandate. That changes the dynamic upon which Roberts’ saved O-Care. This is a awesome ruling, and one that I reckon will stand.

Its’ over folks. Stick yer forks in it. The cool part is where there are parts they want to preserve, but there is no political will to do so…. b/c it will give Trump a win on healthcare.

hahahahahaa

    Milhouse in reply to RobM. | December 15, 2018 at 11:58 pm

    You have it exactly backwards. Congress removed the “mandate” but did not repeal the rest of the act. Therefore the rest can’t still depend on the “mandate”.

Agree on the point about the courts as legislators. Hard not to be pleased on the particular case but judicial abuse (whether courts or the prosecutors) is a bigger problem even then Obamacare.

One can hope that some (many) of the judges Trump is appointing will do likewise in similar cases. Thank God Hillary’s not appointing them.

I’m starting to think what obama had on roberts was the corrupt FISC. roberts had to play along on 0care or be exposed. We get to see later that the FISC was rubber stamping FISA warrants without so much as looking at them. Or they looked at them and gave the ole’ nod and a wink “Ere you go guvna, ‘ave fun wit you warrant!” The corruption didn’t happen overnight, those guys had been doing it for years and obama knew it.

    zennyfan in reply to CKYoung. | December 15, 2018 at 4:45 pm

    Not likely. Obama and his cabal liked the FISC just the way Roberts ran it. What’s not to like? The court gave the administration carte blanche to spy on Americans and the opposition presidential campaign for possible collusion with the Russians based on a dossier Hillary Clinton paid for that used … Russian sources.

The federal judge laid out plainly the court rulings and Congress’s statements on the severability of the individual mandate. It’s crystal clear, logical, and rational. As one noted, there was NOT a severability clause in the ACA – by design, as I recall, because the Democrats kept harping that without it there could be no path to success (as it were).

Those I know who are on an ACA plan HATE IT. Their “coverage” is super-high premiums and deductibles, low caps on max-out, and virtually nothing that is covered UNLESS it is catastrophic, like cancer or massive heart disease.

Those whining about the lose of “health care” for “millions” (which is just “INSURANCE COVERAGE” folks, with NO RESEMBLANCE to true “insurance” plans, like auto or home insurance) have NO IDEA that this ACA debacle never helped anyone, put the insurance companies even MORE in charge of payments and premiums, with the good ol’ gubment taking their cut, like any good middleman racketeer would.

I predict the appeal will fail, it will go to SCOTUS, and there it will be in the hands of Roberts again (and his fave bro Kavanaugh). Will Roberts NOW make the right call? Or will he cave to the press again?

We can only hope that he will kill it this time around. Trump and Cocaine Mitch better have a plan on what to do in that case – and, I don’t mean socialized medicine again. I mean FREE UP THE MARKET, get the insurance middle men OUT of the way, and put Big Pharma and medical conglomerates on notice they better stop with the price gouging and overcharging or face investigations and punitive, conditional regulations.

    Colonel Travis in reply to DINORightMarie. | December 15, 2018 at 12:15 am

    My wife and I had to buy health insurance on our own for the first time ever this year. COBRA was cheaper than Obamacare plans. That right there shows you what a joke Obamacare is from a cost standpoint.

    As far as the actual coverage, we both would lose our doctors. And the ones we could pick were limited. I looked up the backgrounds of many, many doctors and on the whole was not impressed. You cannot chose from among the best of the best. You are stuck with what a bunch of bureaucrats think you deserve. Forgive me when I say this but I am extremely angry about it: Obamacare is a F-ing joke.

    With COBRA, we can keep everything like we’ve had it for up to 18 months. After that, I have no idea what will happen. With a (D) House for at least two years, all I know is nothing good will result.

      We went with medishare and set the deductible to 10k. Once we get on the “you are healthy” list, it will cost about 1/4 of what we’d pay for Obamacare.

      Medishare is cheap for a lot of reasons- some good, some restrictive. Suffice to say you won’t be paying for other people making bad decisions (like smoking or using illicit drugs).

      The ACA makes an exception for people of faith who sign up for a “Health Care Sharing Ministry” (HCSM). There’s several in the US – most notable Samaritan and Christian Healthcare Ministries. I’m with the latter – costs me $150/mo. plus their “Brother’s Keeper” add on to help folks who go over the max. It’s not insurance, more like a health-care sharing co-op. In the last 5 years, it’s paid the cost of a heart attack and a total shoulder replacement. My ‘deductible’ is $500, but if I can secure at least $500 in discounts on the total bill, the $500 is waived. I am responsible to pay for incidents (office visits, etc.) where the total cost is less than $500. I really enjoy belonging to CHMinistries.org – traditional insurance was so impersonal and always seemed coercive and fear-based to me. It’s nice to see my money go directly to help people with their medical bills. Nice newsletter – even the opportunity to send cards and letters of support to people going through a health crisis.

      This is the thing: Obamacare did NOTHING to prevent medical bankruptcy. It provided some plans with high deductibles. Even with catastrophic illness, the plans are expensive (they don’t start covering at 100% after a certain level….you always have that high copay and high deductible.) From my perspective, Obamacare increased premiums for all, decreased coverage for all and….???? I live in a state that did not expand medicaid so I think it might have had a different impact in those states that did expand medicaid, but the federal support for that expansion expired, I believe, last year and it is unclear how that will be sustained (except in CA where they are expanding coverage to the illegals, etc…..of course, we know that CA can’t even begin to balance a budget so another topic totally).

        murkyv in reply to Mati. | December 15, 2018 at 10:23 pm

        A 400% increase in my BC/BS premiums over 7 years almost put into bankruptcy trying to keep up with my health insurance

        Finally had to just drop it to survive, at a time in my life when I really shouldn’t be gambling this way.

        4 years from Medicare and a folder at my Dr.’s about 3 inches thick from the past 15 years

        Close The Fed in reply to Mati. | December 16, 2018 at 9:28 am

        I’ve talked with a married couple who are treated well under Obamacare. They pay about $50 a month because of subsidies, and I don’t remember what their deductible/co-pays are. I’ll ask them again.

          I hit the medicare age last year. Prior to that, this married couple’s insurance from BCBS was 25K per year, 7.5K deductible, no doctors visit payments, and we still could not go to our preferred doctor. It’s a cruel joke. Now it’s “only” about 14K per year for my wife.

          But then, I work, and the money is stolen by a corrupt government to spend on others. Which is why someone else pays $50 a month.

          Oh, I should mention, we have no health issues, take no medications, nothing.

I have little faith in Kavanaugh, we already know which way the wind blows with Robbie…

Can’t The President order the DOJ not to appeal?

    Colonel Travis in reply to Notanymore. | December 15, 2018 at 1:05 am

    I believe the AG of California took the lead to defend this case? Regardless, Calif. and a bunch of other loser states are listed as defendants and would be the ones to appeal.

I thought that ObamaCare put unconstitutional requirements on states and because of the lack of a severabilaty clause that made OmamaCare unconstitutional?

“This is a big f’n deal!”

Roberts position on Obamacare was a heavy plate balanced on a thin reed. The reed snapped when Congress ceased to tax people who don’t comply with the “mandate.” So we are left with an unconstitutional mandate that cannot be defended as a tax. There is no severability clause in the ACA so the whole thing collapses.

    Milhouse in reply to cwillia1. | December 16, 2018 at 12:25 am

    On the contrary, the “mandate” only ever was a tax on people who exercised their legal right to choose not to buy insurance, so when Congress ceased to tax them it ended this “mandate”. So we are not left with an unconstitutional mandate; we’re left with an ACA that has no mandate at all. If it collapses, it’s won’t be for legal reasons but because of its internal economics.

Some of us (me included) just said “NO!”.

I’ve never been any part of ObamaCare. It’s a legal insurrection…

    iconotastic in reply to Ragspierre. | December 15, 2018 at 12:20 pm

    Good point. I have friends who decided the same thing–do not sign up for Obamacare. Instead they went with self-coverage and price negotiation with healthcare workers. They did end up paying the fine (screw you, John Roberts) but that was less than the high cost of coverage and the high deductible. I believe they found disaster health care coverage once the mandate was ended though.

    Pretty easy to say no when you are on Medicare.

      Ragspierre in reply to Barry. | December 16, 2018 at 1:27 am

      …which I’m not, pathetic liar. I have VA benefits and a good doctor to whom I pay cash.

        pretty much the same here. and wait times for VA appt for normal mtx are horrible.
        if need urgent care can try to get into the 6 hrs a week VA here has set aside or use wife insurance.

        Since you are over 65, you qualify for medicare. It is recommended by the VA that you sign up for medicare as well as your VA benefits.

        So, you are telling us that you don’t have medicare even though you’re eligible and part a has zero cost?

        And part b can be zero cost as well when you sign up for the appropriate package.

        In any event, I had BCBS and still paid the doctor myself. I only had a physical for licensing requirements, fortunately. On mediscare now.

        Your comment is the same as you pretended a couple years ago, that you were heroic and not getting Obamacare and just paying on your own. But your covered by the VA, big difference.

After Kavanaugh joins with Roberts to save the ACA, conservatives will hear for decades how conservative justices saved the ACA and how this proved how far out of the mainstream are the far-right racists.

Hey.. Now that it’s almost over.. Did anybody read it once they passed it to find out what’s in it? I think that’s what Nancy said we’d have to do, pass it to see what’s in it. I’m pretty sure most of them labeled it tl:dr.

If this survives appeals, can we delete Obama from the history books?

This will probably not survive on appeal. Unfortunately.

@PrincetonAl
Thanks. I threw out a bone, you provided some meat. Health problems, I can’t assemble so many thoughts now. Fortunately, I do not have Obamacare, with that I’d by now be dead.

I disagree with this decision, and here is the key point where I think the judge went wrong: ” And because the Individual Mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause—as the Supreme Court already held.” But it doesn’t. That was a key part of the Supreme Court’s holding in NFIB. Roberts’s majority decision said Congress can’t force anyone to buy health insurance, but that this didn’t matter because it hadn’t. The ACA gave people a choice: buy insurance, or pay a tax, whichever each person prefers.

Congress has since repealed that tax, so it seems to me that under NFIB the choice became: buy insurance or don’t buy insurance, whichever you prefer. Therefore there is no mandate to strike down.

As for the severability argument, the non-mandate tax was not severable by the courts, but Congress itself severed it. The original congress that passed the ACA surely did intend the “mandate” to be an essential and inseverable part of the whole act, and would not have passed the rest of it without it; but the later congress that repealed it obviously had a different opinion, and the rule is always that the later congress’s will prevails.

    Gee, Milhouse pops up to defend the lefty side – what a surprise.

      Barry in reply to rdm. | December 15, 2018 at 11:08 pm

      No, he asks a good question in the form of his opinion. It’s the same thing I thought. I’m not saying the ruling is wrong, but I can see the question here.

      Milhouse in reply to rdm. | December 16, 2018 at 12:27 am

      I am defending the truth, which is not even slightly lefty.

    Richard G. in reply to Milhouse. | December 16, 2018 at 5:39 pm

    Every one argues ad nauseum over all these years about peripheral legal issues like severability, individual mandates, tax vs penalties, essentiality, and off we go barking down legal rabbit trails while studiously and persistently avoiding and ignoring the real reason the ACA is unconstitutional: it violates the commerce clause.

    From this article: “The Court conservatives and Roberts had ruled the mandate violated the Commerce Clause”…
    And then the rabbit is introduced … “but Roberts broke with the conservatives on the tax power issue.” and off we go on a Nantucket Sleigh Ride baying through the fever swamps of Washington politics.

    From the ruling:”The Court today finds the Individual Mandate is no longer fairly readable as an exercise of Congress’s Tax Power and continues to be unsustainable under Congress’s Interstate Commerce Power. The Court therefore finds the Individual Mandate, unmoored from a tax, is unconstitutional and GRANTS Plaintiffs’ claim for declaratory relief as to Count I of the Amended Complaint.”

    In plain speak the ACA is congressional over reach of the commerce clause:
    “Article 1, Section 8, Clause 3, of the Constitution empowers Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The term commerce as used in the Constitution means business or commercial exchanges in any and all of its forms between citizens of different states, including purely social communications between citizens of different states by telegraph, telephone, or radio, and the mere passage of persons from one state to another for either business or pleasure.

    Intrastate, or domestic, commerce is trade that occurs solely within the geographic borders of one state. As it does not move across state lines, intrastate commerce is subject to the exclusive control of the state.” https://legal-dictionary.thefreedictionary.com/Commerce+Clause

    That Insurance is intrastate is self evident by the fact that insurance is regulated by individual (the several) states, through state licensing.

    “Congress adopted the McCarran -Ferguson Act in 1945
    to declare that states should regulate the
    business of insurance and to affirm that the continued
    regulation of the insurance industry by the states was in the public’s best interest.”
    https://www.naic.org/documents/consumer_state_reg_brief.pdf

    McCarran-Ferguson Act, 15 USC §§ 1011 — “Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that
    silence on the part of the Congress shall not be
    construed to impose any barrier to the regulation or
    taxation of such business by the several States.
    §1012(a) — The business of insurance, and every person
    engaged therein, shall be subject to the laws of the
    several States which relate to the regulation or taxation
    of such business.”

    ^^^THIS is the bone in the throat of Obamacare.

    Please accept the following simple challenge to test this. Move your domicile from state A to state B. You will have your insurance contracts terminated in state A and you will be forced to obtain new contracts in state B. Res ipsa loquitur.

    A Supreme Court majority (including Roberts) has already found the ACA to be in violation of the commerce clause. That is the precedent this ruling deferred to. The ACA imposed Federal regulations (read mandates for minimum coverage standards) on health insurance contracts sold and regulated by state law, only within the respective states. Insurance contracts are not portable across state lines.

    Health care and medical practice is also licensed and regulated by the individual states (not unlike the practice of law).

    It is up to the Swamp Dwellers to conjure up out of odious swamp gas other ways to increase their power and erode our power over our individual health insurance and health care decisions.

    My health insurance was immediately cancelled after passage of the ACA. High deductible catastrophic policies are NOT ALLOWED. I Lost my insurance. How dare I exercise free responsible choice of coverage.
    SOD OFF SWAMPYS!

The tax is still in the law, therefore the law still stands. Go with me for a minute on my idiotic thinking….the tax (penalty) was reduced to $0.90. Therefore, the tax still exists in the law, so the law still stands.

See? I should have been an Appeals Judge or a Supreme Court Justice.

    Milhouse in reply to jaudio. | December 16, 2018 at 12:29 am

    No, the tax is no longer in the law. Congress took it out. Congress did not replace it with a mandate; the Supreme Court has already ruled that it can’t do that. Therefore it replaced it with nothing.

I meant….reduced to 0.00.

    willow in reply to jaudio. | December 16, 2018 at 1:19 am

    You are correct. The penalty was reduced to zero, in effect making it no longer in the law, but the penalty was not abolished. What was the reason for not outright abolishing it? To set up what has now occurred?

Some very good questions raised in this thread.

The legal maneuvering is a tar pit.

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