Two important acknowledgements in the ACA case

Marty Lederman

As my fellow amicus Mike Dorf explains, it appears likely the Supreme Court will rule for California and the House of Representatives in California v. Texas either by holding that no plaintiff has suffered an article III injury or by holding that even if there's a plaintiff with standing and even if the amended Section 5000A is unconstitutional, that provision is severable from the remainder of the Affordable Care Act.

Either of those holdings would be correct.  As Mike and I have argued, however, if the Court finds that at least one plaintiff has standing, the easiest and most straightforward way to resolve the case would be for the Court simply to hold that the 2017 Congress did what it intended to do and what everyone inside and outside Congress understood it to have done--namely, to eliminate any coercive force of Section 5000A rather than to enact an "individual mandate" to purchase ACA-compliant health insurance.

I've already written more than enough about this argument on Balkinization and in our amicus brief.  Here, I'd simply like to flag two important concessions about Section 5000A that occurred during Tuesday's oral argument.

First, Texas Solicitor General Kyle Hawkins conceded that if the amended Section 5000A affords individuals a choice between maintaining insurance and doing nothing (i.e., paying $0), it would be constitutional, even if there's no enumerated congressional power to enact such a law.  

In its brief, Texas had argued that Congress "cannot do anything without an enumerated power," including, in particular, enacting provisions that have no binding legal effect on anyone.  Of course, Congress does just that thousands of times a year, and has been doing so since the Framing:  As Mike and I explained in our brief, since the very first Congress, "the national legislature has enacted statutes containing provisions that have no binding legal effect, such as 'Whereas' clauses; 'Sense of the Congress' declarations; 'It shall be the policy of the United States' proclamations; congressional 'findings'; and exhortations of others to act in certain ways or expressions of congressional expectations or aspirations."  The ACA itself contains many such provisions.  Texas's response to this common practice was to argue in its brief that Congress has been acting unconstitutionally all along:  "That Congress has purported to pass (supposedly) nonbinding laws and concurrent resolutions that fall outside the scope of its enumerated authority 'does not, by itself, create power' to do so."

At oral argument, Hawkins (wisely) abandoned that argument.  He acknowledged to Justice Breyer that "we don't dispute that inherent in the nature of sovereignty is the power for the government to speak, and so we don't challenge the idea of truly hortatory statements or Congress giving suggestions or recommendations."  Just so.  [To be clear, as Mike and I explain in our brief, the actual action Congress took in 2017--reducing a tax from $695 to $0--is authorized under Congress's Necessary and Proper power to carry into execution its taxing power, because "Congress would be severely deterred from exercising [that] power[] in the first instance if it couldn’t adjust the law to make it less restrictive if and when future circumstances warrant."  As we further argue, however--and as Hawkins now concedes--Congress would have the authority to enact a "maintain insurance or do nothing" provision in the first instance, even absent an enumerated power.]

Therefore the parties are now in agreement that if Section 5000A offers individuals a binary choice where one of the options is to do nothing, it's constitutional ... and that's the end of the case.

Which brings us to the second important acknowledgement in yesterday's argument, concerning whether the Court can and should construe the amended Section 5000A to offer such a choice.

Justice Barrett asked Acting U.S. Solicitor General Jeff Wall this question:

Don't you think ... the Petitioners have a point that if, ... as you say, NFIB squarely would say that the mandate would be unconstitutional as an exercise of the commerce power, as opposed to the taxing power, that it would be odd for us to construe this statute as [the 2017] Congress saying, "well, we're going to change the statute in a way that's going to render it ... unconstitutional?"

To which Wall responded as follows:

I think [Petitioners] have a fair point that if you were trying to define the collective consciousness of Congress, it may be that many or most of its members didn't understand the legal consequences of what it was doing because all they were doing was something more targeted, and they weren't thinking about the broader provisions or the findings or any of the rest.  So I think it's fair to say that they didn't focus on this. 

In other words, Wall was (as I read it) acknowledging what everyone knows to be true--namely, that by zeroing out the Shared Responsibility Payment, the 2017 Congress (and President Trump) intended to "get rid of the mandate" and to eliminate any coercive effect that 5000A previously had.  (Indeed, that's what Trump and the members of Congress who supported the amendment have been boasting from 2017 to today.  As Mitch McConnell put it, Congress had “accomplished something really remarkable . . . .  We voted to repeal ObamaCare’s individual mandate tax so that low and middle-income families are not forced to purchase something they either don’t want or can’t afford.”)

Even so, Wall continued, the 2017 Congress inadvertently did the very opposite of what it intended, and the Court has no choice but to read the 2017 amendment to have that unintended effect--indeed, the antithetical, converse effect--even though it would mean that the 2017 Congress acted in a way that it, and everyone else, understood it lacked the constitutional power to do:

But I don't think it's fair, Justice Barrett, to say that the Court shouldn't apply the Act by its terms, just because that would create a constitutional problem. ...  [T]hat's what Congress did, whatever it may have been thinking or whatever it might have intended to do. 

As Mike and I wrote, if the Court were to accept this invitation, it "would turn the constitutional avoidance canon on its head."  

Of course, if the statute could bear no other reading than the one Wall offered, then the Court would have no choice but to hold that the 2017 Congress accidentally acted in violation of the Constitution.  But the amended Section 5000A does bear another reading--indeed, as Mike and I argue (see pp. 5-13), it's the far better reading in the wake of the Court's construction of Section 5000A in NFIB, a construction the 2017 Congress made no effort to change.  More to the point, even if some Justices disagree with us about that, surely construing Section 5000A to offer individuals a lawful choice to do nothing is, at a minimum, an available reading.  Therefore the Court has a “duty” to adopt it.  Jones v. United States, 529 U.S. 848, 857 (2000) (internal citation omitted); see also NFIB, 567 U.S. at 562 (Opinion of Roberts, C.J.).  Doing so would not only avoid a serious constitutional question (indeed, an uncontroverted constitutional violation); it would also honor the Court's admonition in the previous ACA case (King v. Burwell) that “[a] fair reading of legislation demands a fair understanding of the legislative plan.”  

[UPDATE Postscript:  If Acting SG Wall is correct that Congress only inadvertently--and unknowingly--created a command to purchase insurance, that ought to also be sufficient to defeat the argument for nonseverability.  The nonseverability argument is dependent upon the (implausible) notion that the 2017 Congress shared the 2010 Congress's view that the presence of a "mandate"--even if only effected through moral suasion--was necessary to sustain the efficacy of the insurance regulations.  But if the 2017 Congress didn't think it was enacting a mandate--and everyone now acknowledges that it didn't--then its decision to retain the rest of the ACA cannot possibly have depended upon the assumed existence of a mandate.]