Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
There is no "mandate." And oh, by the way, Judge O'Connor didn't enjoin enforcement of any provision of the ACA, let alone "strike down" Obamacare in its entirety.
the many critics are absolutely correct that Judge O’Connor’s severability analysis in his Affordable Care Act opinion yesterday is indefensible.
By focusing so intently on the severability argument, however, many of those critics concede (or assume) far too much at the front end, which is, if anything, even less defensible.
linchpin of O’Connor’s judgment—the part that triggers his severability
analysis in the first place—is his conclusion that once the Affordable Care Act’s
“shared responsibility payment” is reduced to zero on January 1 (the result of
an amendment Congress enacted in December 2017), what will remain of 26 U.S.C. §
5000A is a “mandate” for individuals to “maintain minimum essential [health
insurance] coverage.”Because Congress
lacks any power to mandate, or require, individuals to purchase or maintain insurance,
reasons Judge O’Connor, the “mandate” will become unconstitutional in a couple
of weeks.And having decided that, O’Connor then further "reasons" that the “mandate” isn’t severable from any of the
other myriad of provisions of the ACA, and thus that the entire kit and kaboodle will be inoperative
on January 1.
“mandate” or the phrase “individual mandate” appears no fewer than 245 times in
Judge O’Connor’s decision.On top of
that, he uses “requirement” and “obligation” as synonyms for “mandate” another 45
or so times.That’s close to 300
references in a single 55-page opinion.
the ACA doesn’t contain any mandate, or legal requirement, for anyone to maintain health
insurance.What § 5000A contains,
instead, is a choice.As originally enacted—that is to say, under the ACA in effect today
(i.e., before January 2019)—that choice for most individuals is either to maintain health insurance
(subsection 5000A(a)) or to make the
prescribed “shared responsibility payment,” which has been the greater of 2.5%
of household income or $695 (subsection 5000A(b)). As Chief Justice Roberts put the point in NFIB v. Sebelius, "[t]hose subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax."
As of January 1, the second of those two lawful choices will become even less onerous—paying "zero" will be an option that
satisfies the law, just as paying the greater of 2.5% of household income or
$695 to the IRS did until now.
O’Connor repeatedly insists that the directives in subsections 5000A(a) and (b)
are “distinct”—that “Congress never intended the two things to be one,” and “could
not possibly have intended the mandate and penalty to be treated as one when it
treated them as two.”He’s right about
that—but what he appears not to realize is that it undermines, rather than
supports, his argument that § 5000A imposes a “mandate” to maintain health
insurance.They are distinct provisions—and Congress plainly meant to give
individuals the choice between complying with one or the other, either of which is a lawful option.(At one point O’Connor writes that “because
Congress had the power to enact the shared-responsibility exaction, § 5000A(b),
under the Tax Power, it was fairly possible to read the Individual Mandate, §
5000A(a), as a functional part of that
tax also enacted under Congress’s Tax Power.”This is simply nonsense.Obviously, § 5000A(a) isn’t a “part of a tax”—it’s
an option that individuals may choose to comply with in lieu
of paying the tax in subsection 5000A(b).)
about the word “shall”?See § 5000A(a) ( “An applicable
individual shall . . . ensure that
the individual . . . is covered under minimum essential coverage.”)Doesn’t that create a mandate—a legal
obligation—to maintain health insurance?No, it doesn’t.Read in conjunction
with subsection (b), and in light of the government’s unequivocal (and correct)
representations in NFIB v. Sebelius,
upon which Chief Justice Roberts relied, that “if someone chooses to pay rather
than obtain health insurance, they have fully complied with the law,” it’s evident
that Congress’s use of the word “shall” in § 5000A(a) merely describes one of
two available choices—it doesn’t create a “mandate,” or legal obligation, to “ensure
that the individual . . . is covered under minimum essential coverage.” This follows directly from New York v. United States, 505 U.S. at
169-170, in which the Court, using a virtually identical analysis, explained
that a provision of federal law reading that “[e]ach State shall be responsible for providing ... for the disposal of ...
low-level radioactive waste” did not impose a legal requirement the states (which would have been
unconstitutional) when read in conjunction with other provisions of the same act
providing that the failure to provide for such disposal subjected a state to losing
the right to federal dollars and to lose access to disposal sites in other
sum, because Congress has the power to impose one of the two “lesser included” options
described in § 5000A, standing alone, it therefore has the authority to offer
individuals the choice between complying with that option and another, even if
it couldn’t impose the latter as a stand-alone requirement.
intervenor defendant States in the new case go to great lengths in their briefs to insist
that the amended version of § 5000A(b)—setting the payment option at “zero” as
of January—continues to be an exercise of Congress’s taxing power.Contra Judge
O’Connor, they’re probably right about that—but it doesn’t matter whether or
not they are.Congress doesn’t need to
point to any particular fount of Article I, section 8 authority in order to afford
individuals the option of doing nothing—which is what the recent amendment
does.And if that’s a lawful option
behind Door No. 2, there’s simply no “mandate” to maintain insurance (Door No.
1), no matter how many times Judge O’Connor says otherwise. [UPDATE: As Neil Siegel puts the point in a follow-up post: "To put it bluntly, Congress does not require an enumerated power to declare that Americans must either do X or else not do X and suffer no consequences. After the 2017 statutory amendment to the ACA, that is what the individual mandate and shared responsibility payment provisions provide."]
understanding is the only way to make practical sense of § 5000A, in at least
two important respects.
First, Judge O’Connor’s
reading blinks reality in terms of what everyone knows Congress’s “plan” was when it amended the ACA in
2017 (see Burwell v. King).As
earlier, the 2017 Republican Congress obviously didn’t intend
to diminish individuals’ choices and to require them to
maintain health insurance beginning in 2019 whereas they previously didn’t have
to do so. Indeed, I think it’s a safe bet that no members
of Congress who voted for the bill would favor such a result—and that they’d
all laugh at the idea that that’s what they accomplished in 2017. Instead,
the new Congress’s design was manifestly to lessen the burden
on individuals by giving them an option they previously didn’t have—namely, to
decline to either maintain insurance or pay a
tax: Come January, payment of “zero” while not maintaining health insurance will be a lawful option. Because that's precisely what the Congress intended. [Later in his opinion, in the severability analysis, Judge O'Connor actually has the audacity to write that the 2017 Congress “intended to preserve the Individual Mandate because the 2017 Congress, like the 2010 Congress, knew that provision is essential to the ACA.” As Nick Bagley writes today regarding that statement: "Your jaw should be on the floor. On no account did Congress in 2017 'intend to preserve' the individual mandate. It meant to get rid of the loathed mandate — and it did, by eliminating the penalty that gave it force and effect."]
Second, take a look at the key tell, very early in Judge O’Connor’s
opinion:the run-over sentence on pages 3-4 and
the accompanying footnote 2.When it
enacted the ACA in 2010, Judge O’Connor (correctly) explains, “Congress exempted five
categories of individuals from the shared-responsibility payment but not the Individual
Mandate” (citing § 5000A(e)).What were
those exempted categories of individuals? (i) Those who can’t afford coverage; (ii) taxpayers below the poverty line; (iii) members of Indian tribes; (iv) individuals experiencing “short coverage gaps” in
health insurance; and (v) persons who’ve received a “hardship” exemption from the
Secretary of Health and Human Services.
2014 (when § 5000A went into effect) to this day, individuals in each of those categories have, in effect, been
subject to a “responsibility payment” of zero, just as everyone else will be
come January. According
to Judge O’Connor, all of those persons have, since 2014, been subject to a
legal “obligat[ion] to obtain minimum-essential coverage.” Yet presumably many hundreds of thousands or millions of such persons
have not maintained health insurance for all or most of that time. Thus they have, in O’Connor’s view, been
lawbreakers each and every day of the past eight-plus years.
Allow me to repeat that, because it so vividly illustrates what's wrong with Judge O'Connor's--and the Trump DOJ's--theory of the case: According to O'Connor and DOJ, someone who has been making monthly payments to the IRS for the past eight years has been in compliance with the law, but many indigent persons and tribal members have been recklessly and audaciously violating federal law every month for years on end by neither making such a payment nor maintaining health insurance. [UPDATE: I tweaked this to make it less categorical in light of the fact that many such persons of course satisfy § 5000A(a) by receiving, e.g, Medicaid or employer-provided care.]
is, of course, absurd.Congress
originally exempted those persons from the payment obligation precisely because
they could not afford to purchase health
insurance (or some other equitable reason, such as the inefficiency/inconvenience
of purchasing insurance during “short coverage gaps,” or the fact that tribes
provide health care to their members).Congress didn’t intend to obligate them to purchase and maintain health
insurance—to give them even fewer lawful choices
than everyone else has had.Precisely
the contrary:Congress exempted them from
a statutory burden everyone else has had because it’d be unfair or impossible
for them to fulfill it.
January 1, we’ll all be similarly situated to those five categories, e.g., to those who can’t afford coverage,
including the very poorest among us, when it comes to § 5000A:Like them, we’ll have a lawful option of
doing nothing—paying “zero.” Section 5000A will not require (just as it has not previously required) anyone
to maintain health insurance. (Accord, Jonathan
Adler:“[T]here is nothing left in
the ACA that mandates that people obtain health insurance.”)
Therefore § 5000 won’t be unconstitutional in January—instead it’ll
merely be toothless. And if § 5000 isn’t unconstitutional, that’s the end
of Texas’s case.There’s no need even to proceed to severability analysis.
* * * *
And now, a word on the nature and scope of the judgment: Having written one of the more aggressive and implausible opinions in many a year, Judge O'Connor blinks at the end. He only grants the plaintiffs "partial summary judgment," ostensibly on Count One of their Amended Complaint:
For the reasons stated above, the Court grants Plaintiffs partial summary judgment and declares the Individual Mandate, 26 U.S.C. § 5000A(a), UNCONSTITUTIONAL. Further, the Court declares the remaining provisions of the ACA, Pub. L. 111-148, are INSEVERABLE and therefore INVALID. The Court GRANTS Plaintiffs’ claim for declaratory relief in Count I of the Amended Complaint.
There are at least two problems with Judge O'Connor's judgment on Count One of the Amended Complaint, which reads as follows:
Plaintiffs are entitled to a declaration that the individual mandate of the ACA exceeds Congress’s Article I constitutionally enumerated powers. Plaintiffs also are entitled to a permanent injunction against Defendants from implementing, regulating, or otherwise enforcing any part of the ACA because its requirements are unlawful and not severable from the unconstitutional individual mandate.
As you can see, the "declaratory" relief the plaintiffs seek in Count One extends only to the "individual mandate of the ACA"--they do not seek a declaration that the rest of the ACA is "invalid." Therefore Judge O'Connor extended his declaratory relief beyond what the plaintiffs asked for (which isn't beyond his authority, but should come with some explanation, especially where, as here, that declaration is toothless).
On the other hand, what that paragraph of Count One of the Complaint does seekwith respect to the remainder of the ACA is "a permanent injunction against Defendants from implementing, regulating, or otherwise enforcing any part of the ACA because its requirements are unlawful and not severable from the unconstitutional individual mandate." (They ask for similar injunctive relief in Count Five, too.)
Strangely enough, however, Judge O'Connor did not grant that requested injunctive relief, and failed to offer any explanation for why he didn't do so in his adjudication of the motion for summary judgment on Count One of the Amended Complaint.
Therefore, contrary to almost every media account you've read in the past few hours (come on, New York Times!) Judge O'Connor did not "strike down" the "entire Affordable Care Act" (something he lacks the power to do, in any event), nor did he even issue any injunction prohibiting federal officials from implementing any part of it, let alone all of its provisions. Indeed, his judgment doesn't require the parties to change their conduct at all. “[A] declaratory judgment...is a much milder form of relief than an injunction. Though it may be persuasive, it is not ultimately coercive; noncompliance with it may be inappropriate, but is not contempt.” Steffel v. Thompson, 415 U.S. 452, 471 (1974).
There is, therefore, at least a theoretical possibility that the federal defendants might simply disregard Judge O'Connor's indefensible declaratory judgment, particularly in light of the fact that appears to be reluctant to back it up with the force of an injunction.
another illustration of why that’ll be so, imagine that an individual who’s been making the responsibility payment
rather than maintaining insurance for the past few years voluntarily chooses to
continue paying the IRS $695 a year, even after January 1, 2019, when the tax
requirement will be reduced to zero. That person, in other words,
does not change her behavior in the slightest. Will she then be
violating the law because of the 2017 amendment? Of course
not. But according to Judge O’Connor, she will be.