Monday, October 19, 2020

On the constitutionality of the "mandate" in California v. Texas

Jason Mazzone

I appreciate Marty Lederman's comment on the new Justia essay (by Vik Amar, Evan Caminker, and me) that I linked to on whether the ACA insurance mandate is valid without the tax penalty. Marty suggests we go astray by asking the wrong question. But the whole point of the first part of our essay is to demonstrate why, after the 2017 amendment (that zeroed out the potential tax consequence for failing to maintain insurance), the Court should not read the ACA statutory provision as a congressional command. We therefore agree with Marty's bottom-line assessment on that particular issue--though our own analysis raises several points none of the briefs in California v. Texas have focused on. Our essay that Marty links to makes two additional claims worth flagging. One is that even if the 2017 amendment has resulted in a statutory command (without tax penalty) to purchase insurance, it is constitutional. (On that issue, Marty in his comment misreads NFIB v. Sebelius, for the reasons we explained in greater length here.) And even if it is unconstitutional, we say, the proper remedy may be to enjoin the 2017 amendment rather than enjoin the mandate itself (an issue we will  return to at Justia shortly). On both points, we also make some arguments that do not appear in the briefs in the California v. Texas case.           

Older Posts
Newer Posts