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1/ Thread analyzing Judge O'Connor's ACA decision drive.google.com/file/d/1CAbrWy…
2/ The court found that the individual parties have standing, even though there is no penalty for going uninsured: there is no requirement to show economic injury to establish standing. The mandate, by itself, suffices.
3/ Moreover, a decision for the Plaintiffs would "free" them from mandate, so causation and redressability are satisfied.
4/ Next, the Court followed the reasoning of NFIB to conclude that the individual mandate, without the penalty, is unconstitutional.
5/ The Court draws the important distinction: the mandate and the penalty are different statutory provisions. Cong exempted some ppl from penalty, but not mandate. This fact shows that the unpenalized mandate has force. Many critics of this decision do not recognize this fact
6/ Congress in 2010 (ACA) and 2017 (TCJA) treated mandate and penalty as separate provisions.
7/ The Court also rejects the intervenor's argument that the penalty from 2018 will continue to generate revenue for years to come, because people may delay paying that exaction.
8/ Because the mandate no longer triggers a tax, it cannot be saved under the Taxing Power.
9/ Judge O'Connor also reaches an important point that many critics reject: a mandate, without a penalty, still "has an enormous influence on social norms and individual conduct in society."
10/ In conclusion, the Court found that "the Individual Mandate, unmoored from a tax, is unconstitutional"
11/ Next, the Court turns to severability--the most difficult aspect of the case. The parties disagree on which intent controls "the 2010 Congress that passed the ACA or the 2017 Congress that passed the TCJA." I address this question in my new article: papers.ssrn.com/sol3/papers.cf…
12/ The Court concludes that it doesn't matter which Congress's intent controls. "the Court finds both Congresses manifested the same intent: The Individual Mandate is inseverable from the entire ACA"
13/ The strongest indication of Congress's 2010 intent was in the findings (part of the statute) which were not repealed.
14/ J. O'Connor notes DOJ took same position here, as it did in NFIB: GI and CR are not severable from mandate. However, he notes that many NFIB amici now take a different position. "But that was then, and this is now."
15/ J. O'Connor cites NFIB and King v. Burwell to show that "Individual Mandate is inseverable from the entirety of the ACA" (with a citation to @RandyEBarnett)
16/ The Court concludes that "That requirement—the Individual Mandate— was essential to the ACA’s architecture." Therefore, it is inseverable from rest of law. Here, Judge O'Connor quotes from #Unprecedented about the death spiral that will result in a mandate-less ACA
17/ The Court also notes that a mandate-less ACA is an entirely new law, which would shift costs for uncompensated care. (Here, he cites #Unprecedented again)
18/ In sum, the Court finds that the 2010 Congress would not have enacted the ACA but for the ACAs. This conclusion is consistent with the NFIB joint dissent, and implied by the RBG opinion.
19/ The far more important aspect of the opinion focuses on the intent of Congress in 2017. J. O'Connor explains that due to the reconciliation process, Congress could not have had an intent about the mandate.
20/ In 2017, Congress did not repeal the individual mandate. Therefore, 2017 Congress "intended to preserve the Individual Mandate because the 2017 Congress, like the 2010 Congress, knew that provision is essential to the ACA"
21/ Second, 2017 Congress did not (and could not) repeal statutory findings that mandate was "essential" to ACA
22/ Third, the Court recognizes the key limitation on the 2017-intent argument: because of the reconcliation rules, Congress could not--and did not--modify the intent of the 2010 Congress.
23/ Finally, the Court rejects the intervenor's alternative argument: if 2017 Tax Cut law rendered the mandate is unconstitutional, then the correct remedy is to declare the Tax Cut unconstitutional. Here, the court adopts my argument in #Undone papers.ssrn.com/sol3/papers.cf…
24/ Five points to respond to common criticisms. First, the text of the ACA distinguishes between the mandate and the shared responsibility payment. The law describes only the former as "essential" to the ACA. The mandate survives TCJA
25/ Second, Congress in 2017 could not, and did not repeal the individual mandate. If the Republicans had 60 votes, they would have taken that step, but couldn't. This reality demonstrates that the intent was to leave the individual mandate in place.
26/ Third, the most intuitive answer is that the intent of Congress in 2017 matters, not the intent of Congress in 2010. Severability doctrine must consider whether, and how Congress in 2017 modified the law. See point #2 above.
27/ Fourth, the joint opinion in NFIB expressly found the mandate could not be severed from the rest of the ACA. The other opinions suggested as much. And King v. Burwell reaffirmed that linkage.
28/ Fifth, J. O'Connor stopped short of entering a nationwide injunction (a refreshing change of pace). We only have a grant of summary judgment. Now, this issue can percolate up to #SCOTUS in the usual course.
29/ One final point. President Trump quickly opined on the matter in two tweets:
30/ Here, we do not have an Obama Judge or a Trump judge, but a highly respected judge
31/ The third book in the Obamacare trilogy continues to write itself. (I'm grateful for the citation to the first installment, #Unprecedented) /End
@threadreaderapp unroll please
32/ You can read the entire thread here: threadreaderapp.com/thread/1073752…
33/ On @VolokhC @jadler1969 cited a sentence of CJ Roberts's opinion. reason.com/volokh/2018/12… That sentence comes from Part III.C (the saving construction), which is no longer relevant. Moreover, CJR found the mandate does induce people to buy insurance.
34/ In NFIB, SG Verrilli argued that if the mandate could not be upheld as an exercise of commerce power, the Court should uphold Section 5000A as a tax on going uninsured.
35/ Roberts, for purposes of his saving construction, accepted that alternative argument: to demonstrate that there was no mandate (for the saving construction) he cited the lack of criminal sanctions. That is the thrust of the above-quoted sentence. It only works in Part III.C
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