This is a reasonable, “middle” position re the ruling, but the appeals court, if it agrees w/this assessment, will have to explain how he beating heart of Obamacare can be removed but the body live on. Replay the debates of 2009-10: The mandate was the sine non qua of ACA.
If it falls because the Congress removed its constitutional foundation —thus making the mandate an orphan from any and all enumerated powers— severability becomes complicated. The mandate was the load bearing wall of ACA, and Congress repealed the tax which “made” the mandate.
The estimable @jadler1969 and Abbe Gluck argue the 2017 Congress could not have intended this result for if it had, it would have repealed the entire law. nytimes.com/2018/12/15/opi… This ignores that the Congress can be presumed to know (1) it’s own reconciliation rules and
(2) the litigation consequences that would inevitably flow from repeal of the tax penalty. Most members of Congress understood the Chief Justice’s rationale from the 2010 decision. They might not have shouted it out but it was obvious a challenge would follow b/c of CJ’s holding
I agreed with the ruling then and have written often on how the Roberts opinion will long be admired as an exercise in judicial modesty and separation of powers doctrine after the health insurance battles are resolved or at least a truce declared.
Neither Judge O’Connor nor the plaintiffs are inventing the Chief Justice’s reasoning. The Congressional Republicans of 2017 thus struck at the tax with the only weapon available to them given the 60 vote requirement in the Senate for all legislation save reconciliation bills.
The author of the amendment striking the tax —@SenTomCotton— is a superb lawyer and there are many others in the Congress who could easily anticipate this very challenge. That they sought to win the repeal of Obamacare by the means available to them should not surprise.
That a federal District Court Judge draws straight lines from the 2010 holding and rationale to the consequences of the repeal of that rationale in that holding isn’t surprising or in any way reckless or egregious. It is, rather, obvious. Also obvious is that the challenge ahead.
The new Congress can use divided government to anticipate a worst case and a best case result from the litigation and negotiate in good faith to avoid either outcome by designing a compromise achieving many widely supported ends such as the consensus re pre-existing conditions.
That would be responsible and useful, and a small group of key legislators from both parties and both houses should anticipate the risk to their own parties’ preferred outcome here and get to work, beating if not the Fifth Circuit panel or en banc follow on decisions, then at
least #SCOTUS to the punch. Expecting Congress to act prudentially and to seek a broad-based bipartisan health care reform bill is hoping for a lot. But Judge O’Connor and the plaintiffs have given the new Congress a huge incentive to try.
