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1/ There's plenty wrong in the new DOJ brief in the ACA case. But the fundamental and most egregious error--the one on which everything else depends--is the argument in Part II ...
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2/ ... that the 2017 GOP Congress amended the ACA to impose a legal requirement to maintain insurance that previously wasn't there, and that Congress did so in the teeth of an unequivocal holding of the SCOTUS that it'd be unconstitutional to do so.
3/ There isn't a single member of Congress, let alone a majority, that intended to do that, or who thought that was what Congress had done. What the amended Act does, obviously, is to give individuals a legal *choice* between maintaining insurance and ... doing (paying) nothing.
4/ It's obviously constitutional for Congress to give people such a choice. The idea that Congress amended the Act so that people w/o insurance now are lawbreakers--and, according to the same logic, that all indigent people and members of tribes ...
5/ ... who haven't been maintaining insurance since 2010 have been breaking the law all these years--is, well, nuts, the sort of cynical casuistry that gives lawyers a bad name. It attributes to Congress a design that's the polar opposite of what *everyone* knows it was doing.
6/ This is the most absurd line in the brief: "Now there is no [legal] choice because there is no tax to pay." Could any serious, honest observer, let alone any responsible lawyer or judge, credit that notion, which is the linchpin of the entire brief (and the legal challenge)?
9/ Sen. Rob Portman (R-OH), an architect of the 2017 tax bill, said “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.”
Exactly.
talkingpointsmemo.com/dc/senate-gop-…
Exactly.
talkingpointsmemo.com/dc/senate-gop-…
10/ "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, ..."
11/ Yup.
It's shameful and deeply cynical DOJ would write a brief asking a court to deny this obvious point, which *everyone* understands.
It's shameful and deeply cynical DOJ would write a brief asking a court to deny this obvious point, which *everyone* understands.
