Asking the Wrong Question in the ACA Case

Marty Lederman

Jason's post this morning is entitled "Is the Individual Mandate Without Tax Consequences Unconstitutional?"

The answer to that question is:  Yes.  If one treated Chief Justice Roberts' opinion in NFIB v. Sebelius as controlling precedent--as a majority of the Court would do, even if technically it was dicta--then of course an "individual mandate" to maintain Obamacare-compliant health insurance would be unconstitutional.  

But that's not the question raised in California v. Texas.  The determinative question is, instead, whether the 2017 Congress, and President Trump, enacted a legal mandate that individuals must maintain Obamacare-compliant health insurance.

And the answer to that question is:  Of course they didn't.  Indeed, as I've argued repeatedly on this blog (see here, for instance), and as Mike Dorf and I explain in an amicus brief we filed in the case, the Court has rarely, if ever, confronted an easier question of statutory interpretation.  

To be sure, three federal judges and the Solicitor General of the United States have already insisted that, contrary to Donald Trump's and Mitch McConnell's repeated boasts that they eliminated the "individual mandate" and rendered the ACA less coercive than it was before 2017, in fact Trump and the GOP Congress directly flouted the NFIB majority's constitutional judgment by imposing a mandate to maintain insurance.

And I'm afraid it's entirely possible that at least some of the Justices of the Supreme Court--perhaps even a majority--might conclude likewise.  

If they do, that'll say something about the current state of the Court--and, perhaps, about current trends in "textualism."  But it won't make the argument any less preposterous.  As Mike and I write in our brief, to read the 2017 amendment in that way would be to accuse Trump and the Republican Congress of "brazenly enacting a law that a majority of Justices of th[e] Court, and a majority of those who voted for the amendment, believed to be beyond the power of the federal Government to enact," thereby "turn[ing] the constitutional avoidance canon on its head."  Our brief concludes:

It is exceedingly unusual, to say the least, for the federal political branches to enact laws in flagrant disregard of this Court’s constitutional holdings or judgments.  On the rare occasions where they’ve done so, it has typically been to express profound constitutional disagreement with the Court—such as when the 37th Congress and President Lincoln enacted a law declaring that “there shall be neither slavery nor involuntary servitude in any of the Territories of the United States,” Act of June 19, 1862, ch. 111, 12 Stat. 432, as a direct rebuke to this Court’s pronouncement in Dred Scott v. Sandford, 60 (19 How.) U.S. 393, 432-52 (1857), that Congress lacked authority to do just that.

This is not one of those rare cases.