What's the actual constitutional argument for why donniecare was deemed unconstitutional?

[unblock]

Haven't found a good article that explains the actual legal basis for the decision. Too much noise about the politics and history and impact and timing and everything else.

Near as I can figure the Supreme Court previously upheld Obamacare's mandate, saying it's congress's taxing authority. So this judge decided that donniecare is unconditional because it removed that tax.

Is that their argument, that the tax/penalty was somehow essential to the constitutionality of the law, even though the right wing used to argue that the tax/penalty was exactly what made Obamacare *un*constitutional?

[MrsCoffee]

1. The penalty was zeroed out by Congress making it useless.

Part of Trump‘s tax plan.

Nobody really knows what is going to happen.

[SWBTATTReg]

2. I too, am interested in an answer to this too. I heard the same things you listed, due to ...

some tax law recently passed (to be effective in 2019) that drove this decision, so I can't understand why this ACA decision (unconstitutional all of a sudden) happened. Personally, this judge has a long history of anti-Obama actions, so I'm thinking he went beyond his mandate as a judge and re-interpreted something along the lines of finding the ACA unconstitutional. Why all of a sudden? The ACA has been through many challenges and stood up to them, so why now?

[soryang]

3. What about the tax credit?

That's a use of tax authority.

[Igel]

4. Not relevant.

It's not that the tax was constitutional or not, it's how the lack of the tax affects the mandate, and whether the absence of the mandate squares with keeping the rest of the law.

[soryang]

5. Is there a copy of the opinion somewhere? nt

[Takket]

6. the ruling is nonsensical

by the logic employed any Federal law that does not include a tax is unconstitutional.......... which is thousands upon thousands of laws.

the ruling will be dismissed on appeal.

[standingtall]

7. Isn't the employer mandate still in effect

therefore there is still a tax penalty. So I don't see how zeroing out the individual mandate could make the ACA unconstitutional.

[Igel]

8. Here's a reasonable summary.

The best summaries I've seen, with no real axe to grind, are from sources that can't possibly say anything useful because they're ideologically suspect.

But this will do.

Judge O’Connor reaches three conclusions: 1) the plaintiffs have standing to sue; 2) the individual mandate is no longer permissible under Congress’s taxing power and is unconstitutional; and 3) the individual mandate is essential to and inseverable from the entire ACA, meaning the entire law is declared invalid. This post discusses each of these conclusions in turn.

Judge O’Connor reaches three conclusions: 1) the plaintiffs have standing to sue; 2) the individual mandate is no longer permissible under Congress’s taxing power and is unconstitutional; and 3) the individual mandate is essential to and inseverable from the entire ACA, meaning the entire law is declared invalid. This post discusses each of these conclusions in turn.

(1) That's routine, because if you can't properly bring the suit, the suit can't be heard. Lots of stupid things are law because there's nobody that can go to a court and say, "This is stupid, say so and strike it." Actually, there's a decent chance that an appeals court will find that the plaintiffs lack standing.

(2) This seems fairly reasonable. People argue, "But the tax is still there, it's just set at $0" seems like a Jesuitic bit of sophistry. There being a taboo against doing anything to touch the sacred text, that's the best they could do. Intent's clear. And the mandate probably would fall. Meh. If you enforce it now, you apply a null punishment. Nulls tend to be placeholders for wishes, kludges to make something work, with as substantial an impact as 0.0001 gram of dark matter smacking into the Sun.

As for (3), there's something called "severability." To what extend does invalidating one provision of a law require invalidating all of it. A well written law includes, somewhere, a statement saying what's severable and what's not. "Congress mandates that (1) school funding from the US Dept. of Education will cover 90% of the costs for the following measures; (2) special ed students shall receive services ... (with detail); (3) special ed teachers will receive a stipend, free of federal income taxes, of $2000/year; and, (4) no sped class will hold more than 10 students receiving services." Put it together, if there's no school funding for the next 3 costs the next three provisions are null and void. If there wasn't adequate funding, the schools would be off the hook. That's strict construction.

If there were a provision stating where Congress would get the money, sort of a (0), in that fictitious quote, something like, " ( 0 ) a tax shall be raised on every person with a speech impediment, to the amount of $10 per person, to be collected by the local trashmen", then a court would cluck its collective tongue, declare that unconstitutional, and in the absence of a severability statement the court would say, "Since provision (0) is unconstitutional and it is not severable, the entire law is struck down."

There'd need to be a clause that said something like " (5) each provision in this measure is severable from the otheres" to keep the schools on the hook even if Congress reneges on its obligation or the tax was struck down. Note that in the actual special ed law, the funding was promised and never actually provided--but the funding was severable.

A lot of courts have gone over to looser construction. They look at intent in the Congressional record, in speeches, in interviews as reported in the press. Did Congress intend for them to be severable? That's squishy, because often the Congressional Record is fiction, with text inserted after the fact but cited as before the fact, or with text altered in ahistorical ways. Still, it's better than making assumptions.

And some courts look at the results of the law or of striking down the law and say, "Gee, I like what the law does, it's a laudable goal. How practical is it to consider those provisions severable? Hmmm ... If I strike down just this bit, we can still keep those bits that I like, so yeah, that's the ticket" and make the assumption that if something could be severable deference should be to implementing all the law possible and making that something severable.

[unblock]

10. But what's the argument that the tax isn't constitutional?

Because it's zero? Or is he trying to rule that the tax would be unconstitutional whether it was zero or not? On what grounds?

As for severability, it's hard to say that the whole thing depends on the presence of a zero tax. Remove a zero tax and nothing changes, lol

[soryang]

9. I don't think a tax/penalty that only raises 4 billion is the "keystone" to the act

The subsidies are the keystone to the ACA, the tax/penalty only addresses a small percentage of the "affordability" of insurance premiums under the ACA. The constitutionality of the ACA could be maintained under the power to spend for the general welfare.

[unblock]

11. It was always a constitutional use of income tax, as has been done many times.

Same as giving people a tax credit for solar panels. People who don't get the product pay a higher tax, people who do buy the product get a break. The penalty for not getting insurance is mathematically equivalent the penalty for not buying solar panels.

But that question was basically settled when Roberts provided the 5th vote to uphold Obamacare's constitutionality.

The new judge seems to have decided that it's unconstitutional now that the penalty has been reduced to zero.

[soryang]

12. Right with no tax/penalty, the taxing power is moot as authority.

So they then assume a non severability intent as to the other provisions by Congress.

I haven't read the original opinion of the Texas district court, but the problem with assuming non- severability and striking the entire act, is two fold, the mandate isn't the "keystone" of the ACA, and by striking the mandate as dependent on the taxing power of the Federal Government, the power under the commerce clause is resurrected as a justification for the remainder of all its provisions, and is arguably Constitutional in that respect. It's the subsidies that make the ACA affordable to a greater extent than the mandate ever did. the fiscal effect of the mandate is marginal.

[unblock]

14. Seems to me they made any constitutional problems go away by making the penalty zero

I guess that's where severability comes in, if Obamacare is unconstitutional because of the penalty and it's not severance, then when they made the penalty zero that didn't solve the constitutional problem.

But then how is *trump*care unconstitutional? Congress passed healthcare with zero penalty. What's the basis for calling *that* unconstitutional?

[soryang]

13. I think your tax credit argument is still relevant

A person who buys in the ACA marketplace, may be eligible for a tax credit dependent upon normal income tax like considerations, such as income level, number of dependents, marital status, etc. If the subsidy is not calculated or disbursed correctly, that individual taxpayer is subject to remit the amount owing to the Treasury department, in the same manner as if he had not calculated his individual income tax witholdings correctly. Likewise, if the taxpayer overpaid his portion of the premiums, he receives a tax refund.