Supreme Court loves it some Obamacare
SCOTUS has performed mouth-to-mouth resuscitation and chest compressions on Obamacare for almost a decade, including recently in California v. Texas. Alito Dissent: “No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats.”
Obamacare is alive. It should have died in 2012, but John Roberts saved it, by joining the liberal Justices in finding the mandate penalty to be an exercise of taxing power, even if it was beyond the federal government’s ability to regulate interstate commerce. And even if the politicians assured the nation in barely passing the legislation that it was not a tax.
It should have died again in 2015, when six Justices, including Roberts and Kennedy, held the federal exchanges needed to generate crucial tax credits to keep the Obamacare system alive were “established by the State” (even though they were federal exchanges).
And just last week, seven Justices, including Roberts, Thomas, Kavanaugh, and Barrett, held that neither states nor the individual plaintiffs had “standing” to challenge the law, even though the mandate penalty was eliminated, thus removing the sole basis upon which Obamacare was upheld in 2012.
You can read the majority opinion, but should also Thomas’ lament in his concurring opinion (starting at page 20 of the pdf.) that the ridiculous history of the case in SCOTUS nonetheless led him to agree with the majority on present standing.
There is much to commend JUSTICE ALITO’s account of “our epic Affordable Care Act trilogy.” Post, at 1 (dissenting opinion). This Court has gone to great lengths to rescue the Act from its own text. Post, at 1–2. So have the Act’s defenders, who argued in first instance that the individual coverage mandate is the Act’s linchpin, yet now, in an about-face, contend that it is just a throwaway sentence.
But, whatever the Act’s dubious history in this Court, we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the Act—they have not identified any unlawful action that has injured them. Ante, at 5, 11, 14–16. Today’s result is thus not the consequence of the Court once again rescuing the Act, but rather of us adjudicating the particular claims the plaintiffs chose to bring….
The plaintiffs failed to demonstrate that the harm they suffered is traceable to unlawful conduct. Although this Court has erred twice before in cases involving the Affordable Care Act, it does not err today.
But most of all, read Alito’s dissent, in which Gorsuch joined (which starts at page 26 of the pdf.).
Today’s decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two. In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.
In the opening installment, National Federation of Independent Business v. Sebelius, 567 U. S. 519 (2012) (NFIB), the Court saved the so-called “individual mandate,” the same critical provision at issue in today’s suit….
… in a stunning turn of events, the threat to the ACA was defused when the “penalty” for failing to comply with the mandate was found to be a “tax” and thus to be justified as an exercise of Congress’s taxing power. Id., at 575 (opinion of ROBERTS, C. J.); see also id., at 574 (opinion of the Court); see U. S. Const., Art. I, §8, cl. 1. By a vote of 5 to 4, the individual mandate—and with it the rest of the ACA—lived on.
In the next installment, King v. Burwell, 576 U. S. 473 (2015), the Court carried out an equally impressive rescue. One of the Act’s key provisions provided subsidies to persons purchasing insurance through exchanges established by a “State.” 26 U. S. C. §§36B(b)–(c) (2012 ed.). When many States refused to establish such exchanges, the Federal Government did so instead. But the critical subsidies were seemingly unavailable on those exchanges, which had not been established by a “State” in any conventional sense of the term. Once again, some feared that the Act was in mortal danger, but the Court came to the rescue by finding that the Federal Government is a “State.” 576 U. S., at 484–498.
Now, in the trilogy’s third episode, the Court is presented with the daunting problem of a “tax” that does not tax. Can the taxing power, which saved the day in the first episode, sustain such a curious creature? In 2017, Congress reduced the “tax” imposed on Americans who failed to abide by the individual mandate to $0. With that move, the slender reed that supported the decision in NFIB was seemingly cut down, but once again the Court has found a way to protect the ACA. Instead of defending the constitutionality of the individual mandate, the Court simply ducks the issue and holds that none of the Act’s challengers, including the 18 States that think the Act saddles them with huge financial costs, is entitled to sue.
Can this be correct? The ACA imposes many burdensome obligations on States in their capacity as employers, and the 18 States in question collectively have more than a million employees.1 Even $1 in harm is enough to support standing. Yet no State has standing? In prior cases, the Court has been selectively generous in allowing States to sue….
In this suit, as I will explain, Texas and the other state plaintiffs have standing, and now that the “tax” imposed by the individual mandate is set at $0, the mandate cannot be sustained under the taxing power. As a result, it is clearly unconstitutional, and to the extent that the provisions of the ACA that burden the States are inextricably linked to the individual mandate, they too are unenforceable.
The Supreme Court has has performed mouth-to-mouth resuscitation and chest compressions on Obamacare for almost a decade. Is there anything the Court won’t do to keep Obamacare alive?
According to Alito, there is no bottom:
No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats. A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. So a tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation’s history. Fans of judicial inventiveness will applaud once again.
But I must respectfully dissent.
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
In NO free country does the government force its’ citizens to buy anything from the government they don’t want to buy. Book-smart people and greedy politicians can rail all they want but every document written by the Forefathers screams against this fascist act.
Affordable my derriere!
Who is being forced to buy anything? The individual mandate was repealed years ago.
One of Trump’s many great accomplishments.
Correctamundo. Trump did his job. He nominated and fought for three “constititutionalists” (according to those advising him and the “experts” who claim to know these things) and got them confirmed. No one ever knows how judges will work out until they actually vote.
But this SCOTUS has telegraphed very loudly and explicitly that it will NOT play a role in our saving ourselves. So we need to get out of the court system and academia as our primary means of salvation. Winning arguments years from now when we finally get our shoes on is failure. This will take organization and action on the ground.
The grassroots initiative where localities are organizing to shut down CRT is a great example. Local populist movements snowballing into a national populist tidal wave is how it’s going to get done.
So we need to stop getting distracted by empty words from the likes of McConnell, Grahamnesty, and the rest. It’s time for the big RINO purge and that will take Trump to lead the way. No one else has the clout to get it done and the timing is right. Only Trump can clear the landscape for the likes of DeSantis. THAT is why DeSantis will become the next VP.
I am focusing on how the “party of one” Republicans like Cruz and Paul play this. So far, Cruz has not shown any indication that he knows how to play politics. All talk. He could have been Trump’s “go-to” guy in the Senate but chose to be on the sidelines. Paul has always been a one-man team. And Pence is a wet noodle trying to “unite” the RINOs with the MAGA base.
The spotlight should be on the MAGA candidates challenging the House RINOs. That will define the new GOP for DeSantis to inherit later and DeSantis WILL be a major player as with Trump’s VP or as FL governor.
Also, I am dismayed at the complete lack of interest here at LI over the recount effort. The imminent revelation that the 2020 election was in fact stolen is THE BIGGEST STORY in US history with the WuFlu hoax #2. Yet…. crickets. We are NOT in the post-Trump era.
MAGA baby!!!
I agree entirely.
States are forced to spend a lot of money to meet the requirements of what’s left of Obamacare. States were suing.
The error you are making is that you are still required to buy insurance and the mandate still exist. The penalty still exists too. The AMOUNT of the penalty was changed to $0 by Trump.
The mandate was not repealed. Furthermore, the health-insurance options that were affordable, available, and satisfactory to me prior to Obamacare are still deemed “noncompliant” and therefore unavailable to me.
The ‘forced’ to buy part is only a stepping stone on the way to the government providing it for ‘free’.
Wherein everyone is forced to buy it for everyone. Because that’s ‘fair’.
Provided under the penny pinching and efficiency minded supervision of selfless and all caring politicians and big government bureaucrats who have no motivation other than to provide the very best health care for the plebes, proles, and peasants. Because they’re saints. The very best people anyone could ever pick to provide health care to the people. That is, within the requirements and boundaries set by political nepotism and DIE — diversity, inclusion, and equity,
I don’t know that that’s actually true. But what is true is that in this country the federal government can’t force its citizens to buy anything, from anyone, they don’t want to buy. At least not under the interstate commerce clause. That’s what Roberts’s opinion in NFIB established. Yes, the opinion you all ignorantly whine about.
0bamacare survived the first time for one reason only — because it doesn’t force anyone to buy anything. And it established as firm constitutional law that regulating commerce requires that the commerce exist in the first place; commanding people to engage in commerce is not regulating it.
It also established the very conservative principle that what politicians say about a bill makes no difference at all. Courts can’t go by what politicians say. They have to look at what a law does, not at what the politicians who advocated it said it would do. Because politicians are liars. In this case the politicians swore up and down that they would not pass a tax, but what they actually passed was a tax. They said there would be a mandate, but when the court looked in the law for a mandate to strike down it couldn’t find one, because there wasn’t one there. The only argument for calling it a mandate rather than a tax turned out to be that the politiicans had said so, and Roberts correctly found that that’s not a valid basis for anything. The politicians said what they needed to in order to pass it, but they lied. Or perhaps they were simply mistaken; it doesn’t matter. Either way they didn’t pass a mandate and they did pass a tax, and a court can’t ignore that.
Abolishing that tax didn’t change that. It didn’t create a mandate where none had existed before. There never was a mandate to buy insurance, and there still isn’t one. Therefore the law remains constitutional. Had the court got past standing, I think it likely that that’s how it would have found this time too. At any rate that’s how I think it should have found, had it got that far. But it’s also true that the states had no standing, so the court properly found that it couldn’t reach the substance. Even Thomas agreed.
Alito notes that the states have to spend a lot of money to meet the law’s requirements. Doesn’t that give them standing?
Not because of the provision they were challenging — the “mandate” that doesn’t exist. That doesn’t cost them a penny. The law costs all employers money, and the states are hit just like any other employer, but the part that hits them is not unconstitutional, at least under any theory they’ve put forward so far.
You forgot about people in states who are on welfare: the state has to pick up their tab.
Again, nobody claims that that clause is unconstitutional.
Also, they had to do that already under Medicaid, so this law doesn’t cost them anything extra.
“0bamacare survived the first time for one reason only — because it doesn’t force anyone to buy anything.”
“Buy this product. Every time you don’t, I’m going to charge you money, If you don’t pay me, I’m going to point a gun at your head and take it anyway. But nobody is forcing you to do anything.”
It survived, because the left supported it as a great a future power grab as the enabling act used by the Nazis to take ulimate power. (Read obamacare, if you haven’t. It’s a very scary read.)
The GOP – in particularly that dead POS McCain – profited from it.
Congress’s power to impose taxes is not disputed. The original 0bamacare payment was an income tax, from which you were exempt if you bought insurance. You had every legal right to choose not to buy insurance, and therefore not to get the exemption. The tax was easily affordable, since it was directly related to your income; was collected by the IRS together with your regular income tax; and the government expected that millions of people would choose to pay it, and budgeted for the revenue.
That’s not how a mandate works, at all. A mandate means you are legally required to do something. You do not have the right to choose to break the law and pay the penalty. If you do so you’re a scofflaw, and the penalties will be increased, or you’ll be arrested. Penalties are usually collected by enforcement agencies, not by the IRS. They’re deliberately set at a level that will hurt most people, so they will be motivated to obey the law. And the expected result of a penalty is that nobody will have to pay it, because people will obey the law, so there’s expected revenue and no budget item for how to spend it.
All of these reasons were why the court in the 1930s struck down the so-called “tax” at issue then; and all of these same reasons were why the court in NFIB did not strike down the so-called “penalty” that was not a penalty.
Um…. Also, separately, not to put too fine a point on it: The Courts have said point blank that the Federal Government CAN force you to buy a particular good. See Wickard v. Filburn. 317 U.S. 111 (more)63 S. Ct. 82; 87 L. Ed. 122; 1942 U.S. LEXIS 1046.
Fast synopsis: Filburn was a small farmer in Ohio who harvested nearly 12 acres of wheat above his allotment under the Agricultural Adjustment Act of 1938. Filburn was penalized under the Act. He argued that the extra wheat that he had produced in violation of the law had been used for his own use and thus had no effect on interstate commerce, since it never had been on the market. In his view, this meant that he had not violated the law because the additional wheat was not subject to regulation under the Commerce Clause.
A unanimous Court in 1942 lead by Chief Justice Harlan Fiske Stone upheld the law. In an opinion authored by Justice Robert Houghwout Jackson, the Court found that the Commerce Clause gives Congress the power to regulate prices in the industry, and this law was rationally related to that legitimate goal. The Court reasoned that Congress could regulate activity within a single state under the Commerce Clause, even if each individual activity had a trivial effect on interstate commerce, as long as the intrastate activity viewed in the aggregate would have a substantial effect on interstate commerce. To this extent, the opinion went against prior decisions that had analyzed whether an activity was local, or whether its effects were direct or indirect.
Meaning, in short, Congress CAN make you buy something that you would otherwise NOT buy because you could do it yourself,
My question is why does SCOTUS jump through convoluted logic, and illogic to support this POS?
They didn’t. The states have no standing to challenge it, pure and simple, because it doesn’t harm them in any way. This case never had any merit.
Please refute Alito’s point that the states have to spend money to meet this law’s requirements and are thereby harmed.
See Jonathan Adler’s excellent summary:
Poor complaint drafting and a bad tactical decision by the plaintiffs/ plaintiff states early on. It’s not that the State’s are not suffering a burden. They are. It’s that they chose the hill of the individual mandate to plant their flag, but found that hill to be a whoopee cushion that deflated the moment they planted their flagpole in it. They can’t (or at least did not in pleadings) show how an individual mandate of ZERO specifically burdens them or causes them some harm.
There are certainly other provisions which DO burden the plaintiff states, but they made a tactical choice NOT TO TRY TO ARGUE IT. The tactical choice not to include even a passing paragraph in the initial complaint SAYING SO to give SCOTUS a toehold to look at it, while legally efficient, was fatal to an objection on standing when the “harm” was mooted by the reduction of the mandate to zero.
” Is there anything the Court won’t do to keep Obamacare alive?”
Why do they want to keep it alive?
1. Roberts hated Trump because he correctly pointed out Obama Judges not only existed, but each assumed direct control over the presidency.
2. Roberts hated Trump.
3. Roberts realizes that the country is at a precipice and is about to implode and does not want to light the fuse.
…
Lastly, Roberts and his liberal cohorts brought the precipice into being by being cowards on the Bill of Rights, FBI/DOJ/CIA/DHS open corruption and complete abrogation of the First, Fifth, Fourth, Ninth, and Tenth Amendments. And massive voting fraud across the country…some of which has been in place in PA, VA, WA, MN, MI, WI, GA, CA and parts of Florida for generation . I mean the fraud is totally institutionalized.
Would you go as far as to say it is systemic?
And then there’s Epstein – probably the primary reason Roberts on is a short leash.
And remember: no one believed the rumors about Bill Gates and Epstein.
Roberts is compromised. Probably Barr is as well.
To the Supreme Court, and the current regime, there is nothing in the Constitution that limits the almighty State in fulfilling its desires and whims. There is no rule of law, and things are going to have to shake down as they historically have.
Subotai Bahadur
That is an outright lie. An obvious lie. You only have to look at the other decisions released that very same day to see that. You can also look at the original NFIB decision, which squarely said that a federal mandate to buy insurance would have been unconstitutional, and had there been one in the law it would have been struck down. 0bamacare only survived because there was no mandate.
Of course there was a mandate. Saying “you can pay the penalty instead” doesn’t make it otherwise. Take the reasoning to its logical conclusion: imagine the penalty was not money, but imprisonment or death. By SCOTUS’ logic, no mandate would be created.
That’s why the NFIB decision went into great depth on the criteria that distinguish between a penalty and a tax, and demonstrated conclusively that the payment that the ACA would eventually collect from those who chose not to buy insurance was in fact a tax and not a penalty. If there had been a penalty it would indeed have been a mandate.
Imprisonment and death are obviously penalties and not taxes. But so is a financial impost so large as to be unaffordable, and thus it is expected that it will generate no revenue because nobody will “choose” to pay it. That was the case in the precedent on which the NFIB decision relied. Congress called it a tax, but the court in that case counted the ways in which it was clear that Congress was lying. The exact same criteria worked in reverse in this case, where Congress had told the opposite lie.
And, as is often pointed out, the “penalty” could not be a constitutional tax, because it originated in the Senate.
You can wave your hands as hard as you like, but you can’t make the bullshit smell any sweeter.
The bill it was in originated in the house. It is a common and standard procedure, in legislatures all over the world, to repurpose a bill by deleting all its words and substituting other words.
Supreme Court Chief Justice John Roberts loves
it someObamacare.Edited for accuracy,
GOPe kept it alive. They needed the lie they opposed it to get votes from the rubes and deplorables. McCain, may he not rest in peace, put an end to the charade when he voted for it. And we know it was a charade because GOPe hasn’t said a peep about it since.
The Dems are predictable Maoists. The fake news media and GOPe are the enemies of the people.
Mccain’s ‘exit’ was the 2nd best thing that happened to conservatives. It’s a raging shame he’s buried in Arlington.
So what? Prof J, are you seriously claiming that a court should take notice of politiicans’ pronouncements about what their proposed legislation would do?! That it should abdicate to congress, or even worse to politicians outside congress, the role of deciding the definitions of a tax and a mandate?!
Roberts’s decision in NFIB cited a precedent from the 1930s that was exactly on point. It addressed exactly the same issue, but in reverse. In that case congress passed what it claimed was a tax, but the supreme court ignored that and found that it was in fact a mandate, and therefore unconstitutional. That decision set out the criteria that distinguish a tax from a mandate and found that what it had before it was clearly a mandate, and struck it down. Roberts applied the same criteria to the 0bamacare “mandate” and found that it was a tax and not a mandate. So what could he do but let it stand?
Was the court in the 1930s wrong to strike down the law before it?! I’m sure you would say it was not. Or should the principle work in only one direction, to strike laws down but not to uphold them?! That would be perverse. A court must either trust the poltiicians’ words or its own lying eyes, and Roberts, like the 1930s court, chose to trust his eyes.
” Prof J, are you seriously claiming that a court should take notice of politiicans’ pronouncements about what their proposed legislation would do?!…”
Yikes. Read about Legislative Intent! —
“Legislative intent is the term that the courts have given to their analysis of the historical documents originally generated when the statute in question was under consideration in the Legislature—state or Federal.
“Whenever the interpretation of a legislative enactment becomes an issue in a case, the courts will commonly resort to the Rules of Statutory Construction to determine the proper application of the statutory language to the facts at hand. In applying the Rules of Statutory Construction, the courts of California, as well as those of most other jurisdictions, have routinely held that the “cardinal” principle of statutory construction is that the court must choose that interpretation that most nearly effectuates the purpose of the Legislature.
“The Court determines the Legislature’s intention by examining the problem faced by the Legislature when it considered the bill that enacted the language in question, the public policy issues that the problem raised and the drafting solutions that emerged during legislative consideration of the bill.
“The evidence that the courts have used to assist them in making this determination has come from the legislative documents that were prepared before, during and sometimes immediately after the bill in question moved through the legislative process.”
http://www.legintent.com/what-is-legislative-intent/
And read the authority before you go blabbing on as an expert:
The classical statement of the importance of legislative intent analysis comes from the case of
William v. Berkeley, Plow 223, 231 (1601) where the Court stated “Whoever would consider an act well ought always have particular regard to the intent of it, and accordingly as the
intent appears, he ought to construe the words.” Our own Justice Holmes put it more
succinctly when he said “a page of history is worth a volume of logic.” New York v. Eisner, 256
U.S. 345, 349 (1921). When a question arises concerning the applicability of a statute a decision can be reached only by applying some kind of a criterion. For the interpretation of statutes, “intent of the legislature” is the criterion that is most often recited. U.S. v. Harvey, 814 F.2d 905 (4ᵗʰ Cir. 1987), on reh’g in part, 837 F.2d 637 (4ᵗʰ Cir. 1988), cert granted, 488 U.S. 940, 109 (1988) and judgment aff’d, 491 U.S. 617 (1989). In construing the meaning of a statute the courts must consider the history of the subject matter involved, the end to be attained, the mischief to be remedied and the purpose to be accomplished. Frillz, Inc. v. Lader, 925 F. Supp. 83 (D. Mass. 1996), judgment aff’d, 104 F.3d 515 (1ˢᵗ Cir. 1997), cert. denied, 522 U.S. 813 (1997). Also see, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001); Local 28 of the Sheet Metal Workers’ International Association v. Equal Employment Opportunity Commission et al., 478 U.S. 421 (1986); Securities Industry Association v. Board of Governors of the Federal Reserve System, 468 U.S. 137 (1984); North Haven Board of Education v. Bell, 456 U.S. 512, 534 (1982)
Legislative intent is derived only from the law’s text and its drafting history, not by the speeches of the politicians who promoted it. It’s the legislature’s intent that matters, to the extent that it can be divined, not the intent of any individuals. An individual’s speech reflects only his own view, not that of the legislature as a whole.
So you’re saying the 1930s case was wrong?! That the court should have allowed a genuine mandate to stand just because congress called it a “tax”?!
The rule is that what matters is only what congress has done, not what it says it has done.
Epstein had the goods on Roberts. That’s one reason Barr helped kill him.
Technically they said the states ha no satnding. So my question is who does?
For the provision challenged? Nobody. It harms nobody in any way at all, therefore nobody has standing to challenge it.
@milhouse
Just a quick thank you for depth in the comments you’ve written. Very interesting thank you.
States have no standing because the law costs them nothing, even though the law actually costs them money.
Obamacare is a tax but not a tax.
We’re not only “through the looking glass”. We’re simultaneously on both sides of the looking glass!
It’s okay. You Trumpgoobers can fight back by helplessly whining on the Internet. 😃
Government does not willingly let go of power, it must be forced out of it’s grasp. If we want the ACA gone for good completely we must get enough people into office who will vote it gone. Well that’s the peaceful method anyway, I certainly hope it doesn’t come to the nonpeaceful methods.
When John Roberts said the ACA was a tax, he should have said, “therefore according to Article 1, Section 7, it was not properly passed and therefore is null and void.”
John Roberts have failed his oath of office!
If only there was a point in time when the GOP had held the White House, House, and Senate, this could have been repealed the right way… through the legislative body.
Oh wait- they could have, but these cowards said “It will die in the SCOTUS.” Now they are out of power in all three chambers. Go figure.
Alito and Thomas are part of the 7/2 court that the left lies and tries to bill as a 6/3 court. The fact that Barrett and Kavanaugh joined the 5 majority that seems to have formed shows that they are about as conservative as Souder.