The most devastating evidence against the GOP lawsuit to strike down the ACA came from the GOP...in more ways than one.
Millions of Americans are nervously awaiting the official ruling on the fate of the Affordable Care Act in response to the CA v. TX lawsuit (previously Texas vs. U.S. or Texas vs. Azar, though I've given it the hashtag #TexasFoldEm due to the Trump Administration's Justice Department deciding to not only throw the fight but to actively support the plaintiffs against the law of the land).
While the U.S. Supreme Court isn't expected to issue their decision until April at the earliest, it's possible that they'll publish their ruling earlier than that...potentially as soon as this Thursday morning, February 25th.
As stupid as this lawsuit is, at the end of the day it still managed to make it to the SCOTUS, and if the worst-case scenario does happen, things will be ugly as hell, with over 23 million Americans losing healthcare coverage (possibly as early as May 1st), among other things...in the middle of a pandemic.
As I've written about many times before, there are two major questions the Supreme Court is deciding:
- First: Is the "individual mandate" (actually "shared responsibility") language still Constitutional if there's no federal financial penalty attached to it?
- Second: Assuming the answer to the first question is "No", can it be severed from the rest of the Affordable Care Act or not?
The answer from every serious legal/Constitutional scholar across the political spectrum who's looked at this case has been "Yes" to either one or both of these. That is, most agree that it's an absurd case in the first place, and even those who think there might be some merit to the case agree that the solution to the "problem" is to simply eliminate the underlying "mandate language" while leaving the rest of the law intact.
During the SCOTUS oral arguments on November 10th, that seemed to be the way that most of the Justices were leaning as well:
Kavanaugh, in particular, stated point-blank a couple of times that the mandate should indeed be fully severable from the rest of the law. Neil Gorsuch agreed with Sonia Sotomayor that if they granted standing to the plaintiffs in this case (the individuals, not the state AGs), it would open up a massive floodgate wherein anyone who didn't like some tiny aspect of a major omnibus bill would have "standing" to sue over it.
...Even die-hard conservative Justice Sam Alito, who hates the ACA and has ruled against it twice before, made a similar point during the proceedings, saying:
At the time of the first case, there was strong reason to believe that the individual mandate was like a part in an airplane that was essential to keep the plane flying so that if that part was taken out, the plane would crash. But now the part has been taken out and the plane has not crashed.
On top of this, even Trump's third appointee, Amy Coney Barrett, apparently already shot down this exact lawsuit during a mock court hearing a couple of years back (before she was appointed to SCOTUS):
Just one week before the death of Justice Ruth Bader Ginsburg, whom she has been nominated to replace, Barrett participated in a mock court hearing on the pending case. She was part of an eight-judge panel that heard the mock arguments, conducted at William & Mary Law School.
None of the judges ruled in favor of the administration and Republican states’ request to strike down the law.
Five of the judges ruled that one part of the law — the so-called individual mandate, which Congress has already effectively nullified — was unconstitutional, but that the rest of the healthcare law could stay in place. The other three judges would have thrown out the case, arguing that the conservative states challenging the law did not have standing to bring the suit.
It's not known which group Barrett was part of, but either way, in a mock version of the case, at least, she ruled that either the case had no merit or that the penalty was severable from the rest of the law. That doesn't mean she'd rule the same way in the real case, of course, but it lends at least a bit of hope.
Even so, this from healthcare reporter Julie Rovner still sends a chill down my spine:
Cautious reminder that you can't always read what SCOTUS will do based on oral arguments.
— julie rovner (@jrovner) November 10, 2020
It's important to keep in mind that one of the other big questions the Supreme Court looks at in cases like this is Legislative intent. That is, when Congress passes or changes a law, did they intend just that change alone or did they mean there to be additional consequences of their action?
If you're talking about a change made 100 years ago, it can be tricky, since every member of Congress at the time is dead now. When you're looking at a law passed just 3 years ago, you would think it'd be a lot easier: Just ask them. Aside from a handful of House members like John Lewis, Elijah Cummings and so forth who have since passed away, just about every House and Senate member who voted on the 2017 TCJA bill from both parties is still alive, even if some of them are no longer in Congress.
Republican senators say they never discussed or anticipated that the entire ACA could be declared invalid when they passed legislation to eliminate the individual mandate tax penalty a year ago. A federal judge in Texas ruled that change made the mandate unconstitutional, which in turn meant the entirety of the over 900-page ACA must be thrown out.
“I never heard one senator say in doing this we’re going to repeal Obamacare,” said Sen. Lamar Alexander. This was repeatedly backed up in conversations with more than a dozen GOP senators.
Both avowed opponents of the ACA and senators who have taken a more bipartisan approach said there was no discussion at the time that their vote could bring down the wider law. “No one thought that. In fact it was to the contrary because we didn’t touch the rest of the law,” said Sen. Susan Collins, one of three Republicans who voted against total ACA repeal in 2017.
...“The next step is to appeal the ruling and it’ll be overturned. I can’t imagine that the decision will be affirmed by an appellate court because obviously Congress didn’t intend to repeal all of Obamacare when it got rid of the individual mandate,” said Alexander.
The following spring, Talking Points Memo reporter Tierney Sneed followed up and got even more evidence from various Republicans who voted for the 2017 tax bill confirming they had no intention of eliminating anything else besides the federal penalty itself. Besides similar statements from Collins and Alexander, she also quoted Sen. Bill Cassidy of Louisiana and Sen. Roy Blunt of Missouri:
Finance Chairman Chuck Grassley (R-IA) called it “legitimate,” even as he was skeptical the challengers would ultimately win — while stopping short of supporting the view that the whole law should come down because of their tax bill.
“Those of us who believed that [mandate] was unconstitutional at the time, depending how you construct the legal argument, would have thought therefore it makes the whole thing unconstitutional, so it’s not inconsistent,” Sen. Rob Portman (R-OH), an architect of the 2017 tax bill, said. “But that’s not what we thought was going to happen at that time [of the 2017 tax bill vote]. We thought we would get rid of a mandate that a lot people didn’t like.”
...“There was specific statements made by different members of the Republican side that this is not to impact coverage of pre-existing conditions,” Sen. Bill Cassidy (R-LA) told TPM. “So clearly if you take the comments of those voting [for] it, it was anticipated it might be an issue and it was rejected as something that was desirable.”
Sen. Roy Blunt, a member of GOP leadership, said that the mandate provision in the 2017 bill was “intended to give people more options and be able to work more vigorously to find what those options are, and by removing the penalty, you allow people to make more choices, without being penalized for making those choices.”
In fact, Sneed was only able to find one Senate Republican who agreed with the plaintiffs: Seditionist Josh Hawley...who wasn't even in Congress at the time (he was, however, the Missouri Attorney General who joined Texas AG Ken Paxton in bringing the lawsuit in the first place).
OK, so why am I dredging all of these GOP Confessionals up again now? Well, I've stumbled across a small but potentially significant point of information which ties in with all of the statements above.
It's one thing to ask someone "what were you thinking at the time" a couple of years later. After all, they could be changing their stories now due to changing political winds, right?
However, what if I told you that there was rock-solid, written proof that NO, SENATE REPUBLICANS DID *NOT* THINK ZEROING OUT THE FEDERAL MANDATE PENALTY WOULD MAKE THE REST OF THE LAW UNCONSTITUTIONAL.
First, let's look at the relevant portion of the Tax Cuts & Jobs Act of 2017:
PART VIII--INDIVIDUAL MANDATE
SEC. 11081. ELIMINATION OF SHARED RESPONSIBILITY PAYMENT FOR INDIVIDUALS FAILING TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.
(a) In General.--Section 5000A(c) <<NOTE: 26 USC 5000A.>> is amended--
(1) in paragraph (2)(B)(iii), by striking ``2.5 percent'' and inserting ``Zero percent'', and
(2) in paragraph (3)--
(A) by striking ``$695'' in subparagraph (A) and inserting ``$0'', and
(B) by striking subparagraph (D).
(b) <<NOTE: 26 USC 5000A note.>> Effective Date.--The amendments made by this section shall apply to months beginning after December 31, 2018.
That's it. That's the full extent of the legislative text which the entire Texas Fold'em lawsuit is based upon: It changed the penalty amount from 2.5% to 0.0% or from $695 to $0 starting in 2019...but it didn't strike out the anything in Section 5000A of the PPACA, the "Requirement to Maintain Minimum Essential Coverage":
``(a) Requirement To Maintain Minimum Essential Coverage.--An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.
``(b) Shared Responsibility Payment.--
``(1) In general.-- <<NOTE: Penalty.>> If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c).
(Note: The actual amount of the penalty was originally a bit higher ($750 per person), but was later tweaked to $695 in the Reconciliation Act version).
The entire lawsuit hinges on the "logic" that by changing the penalty amount to 0.0% / $0 while leaving the "...an individual SHALL ensure that the individual...is covered", this somehow makes the entire ACA unconstitutional, right?
Now, it can definitely be argued that the only reason they didn't strike out the "SHALL" language is because it isn't allowed for under Senate reconciliation parlimentary procedure. In fact, that had even been noted by Amber Phillips of the Washington Post earlier in 2017:
In early 2016, Republicans passed a test run of a bill via reconciliation that got all the way to Obama's desk. (He vetoed it, duh.)
In that process, a parliamentarian held Republicans up by ruling that one of the central pieces of their bill, eliminating the individual mandate that people have health insurance or else pay a tax, wasn't directly related to the budget and couldn't be passed under reconciliation.
Republicans were forced to get creative to undo a central part of Obamacare without a filibuster from Democrats.
“Republicans came back and said: ‘We can't include a straight repeal of the mandate, but can we just dial the penalty for violating the mandate down to zero?’ ” Reynolds explains. “And the parliamentarian said that was okay.”
In the end, the 2016 test repeal-replace legislation passed with the individual mandate intact but with a $0 penalty if you don't have health care.
That's more or less how Republicans have crafted their replacement bill in 2017: The individual mandate isn't struck out of the bill, but it wouldn't be enforced. (In its place is a fee for anyone who tries to buy health care at the last minute or who drops their insurance for an extended period of time.)
However, from a "Legislative Intent" perspective, that's kind of irrelevant. "Legislative Intent" doesn't care what "Republicans" or "Democrats" in Congress were seeking to do, nor does it care whether it was politically expedient to only do part of what one party or the other "wanted" to do. Legislative Intent looks at what the legislation itself was "intended" to do...and in the case of the December 2017 tax bill, it was clearly intended to do exactly what it did and nothing more: Reduce the penalty amount down to $0.
With that in mind, let's take a look at Section 104 of the Better Care Reconciliation Act plan of 2017, otherwise known as BCRAP...the Senate Republicans' bill to REPLACE the Affordable Care Act:
SEC. 104. INDIVIDUAL MANDATE.
(a) IN GENERAL.—Section 5000A(c) of the Internal Revenue Code of 1986 is amended—
(1) in paragraph (2)(B)(iii), by striking ‘‘2.5 percent’’ and inserting ‘‘Zero percent’’, and
(2) in paragraph (3)—
(A) by striking ‘‘$695’’ in subparagraph (A) and inserting ‘‘$0’’, and
(B) by striking subparagraph (D).
(b) EFFECTIVE DATE.—The amendments made by this section shall apply to months beginning after December 31, 2015.
As alluded to in the Amber Phillips piece, guess what you don't see anywhere in the BCRAP legislative text? Any mention of striking out the "Requirement to Maintain Minimum Essential Coverage."
Yes, that's right: The GOP's own replacement plan for the Affordable Care Act ALSO maintained the underlying "Individual Mandate" language.
Why is this such a Big Deal? Because it means that, had BCRAP been passed and signed into law in summer 2017, by the GOP plaintiffs' own tortured logic, it, too, would have been unconstitutional and would have had to be completely struck down by the Supreme Court.
And there you have it: ~20 Republican Attorneys General are now arguing before the U.S. Supreme Court that the Republican's own replacement for the Affordable Care Act would have been unconstitutional.
Put that in your pipe and smoke it.