"Oh, What a Day! What a Lovely Day!"
UPDATE: Bwhahahaha
Nothing has been more destructive to my family's finances than this stupid law. I lost the plan they promised I could keep, and then lost the plans I got instead four or five times. It's increased our health care expenses by fivefold, while largely eliminating non-emergency use of services because we spend so much on the premiums that we can't afford the sky-high deductibles. Last year I spent more money on health insurance than on any other thing: more than my mortgage, more even than taxes. We can't use it, because we've already spent so much on the premiums; and if we do end up in an emergency room, that's all going to be out of pocket anyway.
Good riddance to bad rubbish.
Unfortunately, probably not.
ReplyDeletehttps://reason.com/blog/2018/12/14/a-texas-judge-just-ruled-obamacare-uncon?fbclid=IwAR302Q5UALuocDq2aHoNfWOFWKYtI1qM2-O_mo-jkT_377eVspnhL1kzuHM
They're too pessimistic. The Federal executive branch will not defend the law's constitutionality; the President has loudly declared that it is unconstitutional.
ReplyDeleteWhich, it clearly is. If it was a tax, then it's unconstitutional for having originated in the Senate and not the House. If it's not, it's unconstitutional for the reasons the Roberts court found in declaring it a tax. Since it's plainly no longer a tax, it's plainly not constitutional.
What I want to know is how fast some insurance company will be ready to sell me a plan like the one I had in the old days, at a similar price point.
This thread, from about 17 on, offers analysis from the court ruling itself on the points Reason raises.
ReplyDeleteThe Federal executive branch will not defend the law's constitutionality....
ReplyDeleteThat depends on when the thing gets to the Supremes and who's President when that happens. It easily could take until after 20 Jan 2021, which might push the question out until that October, and a Republican President being elected in 2020 is not a done deal.
It also will depend in large part on whether Roberts will agree that the thing is unconstitutional. Keep in mind the tangled knot of pseudo-logic and enormous stretching of the fairly possible doctrine that he used explicitly to uphold the constitutionality of the thing. One effect of that was to save the Republican mid-term election that year, but I don't think that was his purpose.
The district judge's ruling also has been stayed by that judge pending appeals, which means the thing still is in effect for all of that time.
Eric Hines
Always with the negative waves.
ReplyDeleteHow I hope you are right, but I've been disappointed too many times to be too hopeful.
ReplyDeleteGiven that you can get insurance even with pre-existing conditions, what's the point of een having insurance you can't use anymore?
I gave up and in protest decided we were better off taking our chances with nothing. Honestly, to my mind, it's to the point that supporting that system by participating is immoral.
I am not a lawyer and so don't think like one but there seems to be a little begging the question going on. A mandate with no penalty, and a tax that by design collects no money? It seems like the only reason to argue for it's continued existence is to invoke non-severability.
ReplyDeleteWe are so far down the rabbit hole that I wouldn't venture to guess how the higher courts will address this. It survived an excellent constitutional attack the first time around when Roberts twisted a penalty into a tax, or vice versa, I can't even remember how the ridiculous article went any more. Now the pen-tax has been set to zero but not actually "eliminated," whatever that means. Who's to say a majority of S. Ct. justices won't find that a taxalty of zero is not still a pen-tax? Indeed, if the mandate is eliminated entirely, does a ghost of it not still hover over the nation? When you're willing to count angels on pinheads, there's almost no limit to what you can argue.
ReplyDeleteRidiculous "argument," not "article."
ReplyDeleteHere's the decision: https://drive.google.com/file/d/1CAbrWy7zvfUec-_8YWDh7H3bQr2-X4uH/view
ReplyDeleteYears ago, the Supreme Court held that while the individual mandate of the ACA might not be sustainable under the Interstate Commerce Clause of the U.S. Constitution, it could be seen as sustainable under the Taxing Power, if you squinted hard and viewed the penalty as a "tax" instead of a "penalty." Last year Congress eliminated the tax/penalty. Yesterday's decision found that eliminating the tax/penalty also eliminated the loophole that enabled the Supreme Court to uphold the individual mandate under the Taxing Power. Since everyone has more or less continuously and unanimously said the individual mandate could not be severed from the ACA in general--it's "all or nothing"--it follows that striking down the mandate also strikes down the ACA. So we'll see what the 5th Circuit and the S. Ct. have to say about this on appeal. In the meantime, the President continues to promise to veto any replacement bill that doesn't protect people with pre-existing conditions.
The best argument I've seen so far for preserving the ACA: in the original law the individual mandate clearly was inseverable. But when Congress amended it last year to remove the taxalty/penaltax, Congress clearly intended the mandate to be independent of the law as a whole, as evidenced by the Senate's flat refusal to repeal the law altogether. The mandate itself should be struck down, and indeed is irrelevant now that there's no penalty for defying it, but the S. Ct. could find that the mandate is no longer inseverable, and that the rest of the ACA can survive. Survive legally, that is; it's not clear whether it works long-term and economically without the mandate. But it might. Badly, but without actual immediate collapse.
ReplyDeleteDon't get me wrong, I'd love to see this Obama-nation of a law go away. I find the refusal to do so by the GOPe, as embodied in McCain's petulant #NeverTrump No vote on repeal, after promising to do so for years to be the height of political hypocrisy.
ReplyDeleteI agree with Tex's outline. I'm just not understanding the argument (and it was hard to understanding the tweets) that you can say the 2010 legislative intent controls whether the mandate is a tax or penalty and is not severable, but that the 2017 legislative action makes the same provision null and therefore not a tax even, though the 2017 legislature had the opportunity to repeal the law entirely. That they didn't have the means, lacking 60 votes to avoid going through reconciliation, doesn't negate that they could have repealed the law but chose not to.
Here's the thing: The argument is not that the 2017 action changed the character of the tax/penalty. It's that the 2017 action changed the conclusion of whether the individual mandate was intended to be severable from the rest of the law.
ReplyDeleteThe mandate is dead, and rightly so. It died as a practical matter when because Congress removed the penalty that was its only practical enforcement. More important, the mandate died as a legal matter when the court deemed it unauthorized by either the Interstate Commerce Clause or the Taxing Power. (And those are the only two bases for the constitutionality that anyone has ever yet asserted, so if they mail, the mandate fails.)
As a matter of policy, it doesn't matter whether the mandate is dead as a practical matter because there's no practical way to enforce it now, or is dead as a purely legal matter because it's unconstitutional. But as a matter of law, it does matter very much why the mandate is dead. Taking away the penaltx/taxalty aspect of the individual mandate kills the mandate as a purely constitutional, legal matter. And that has a secondary effect, because if the mandate is legally inseverable from the rest of the ACA, then the ACA dies when the mandate dies.
The question now therefore is: is the mandate still inseverable from the rest of the ACA? Now that the mandate has been struck down, can the rest of the ACA totter on, or must it fall with the mandate? The latter question is not constitutional, or a issue of whether the penalty is a tax. It's a pure question of severability, which is a matter of Congressional intent. Unfortunately, Congressional intent really can change over time, as different laws are passed.
And bear in mind that the really objectionable part of the ACA was not just the mandate. It was that insurance companies were forbidden to continue selling the insurance that people wanted. They had to sell the cookie-cutter Obamacare policies, at high premiums, with unusable subsidies, with awful restrictions on the narrow window when you could sign up each year, and with no way to protect yourself against abrupt changes in networks every 12 months. Competition was nearly eliminated. In my county there are only two insurers left. If the law dies, companies can go back to selling whatever insurance people want to buy.
ReplyDeleteThe downside of this new consumer freedom is that insurance companies also can't be forced to sell insurance to anyone and everyone at the same price. That's the problem that the news media and the Democrats (but I repeat myself) are harping on exclusively: people with expensive pre-existing conditions can't force insurers to sell them cheap insurance! But we already had some protections, under HIPAA from the 1990s, for people with pre-existing conditions who had maintained continuous coverage. We can come up with other protections--not really insurance but more in the nature of direct aid--for people who got expensively sick before they had secured continuous coverage. In short, we can solve the pre-existing condition without destroying the free market for individual-market insurance. We'll just have to do it in a way that more honestly confronts who's really paying for it. Don't want to place the burden on the sick people? Fine, then on whom do you want to place it? Whatever we do, the care won't be "free."
Preach, sister Tex!
ReplyDeleteAlways with the negative waves.
ReplyDeleteYeah, and as I recall, he shot a paint can at the Panzer; it was only the Panzer commander's own incompetence that saved Our Hero.
As to the severability argument, with actual textualists on the Court, I can hope that they recognize that the "intent of Congress" is entirely contained in the text of the law as passed and nowhere else. Pre-passage hearings, debates, notes, speechifying, and all the rest no longer matter--they're wholly irrelevant. Obamacare as passed had no severability clause in it, and so the the loss of one clause should cause the loss of the whole law. The bill rescinding the Individual Mandate contained no text concerning severability, and so the inseverability bit remains untouched and intact.
The sequence of appellate court rulings should leave all of Obamacare ruled unconstitutional and so void.
But like others here, I'll believe it and celebrate it when it actually happens.
Eric Hines
They had to sell the cookie-cutter Obamacare policies....
ReplyDeleteOne more terrible thing about Obamacare: the coverage providers (no longer insurers) had to sell these at premiums that were independent of the risks being transferred. That's the very antithesis of insurance; these coverage providers could not sell insurance anymore. Under Obamacare, all they could do was provide Government-mandated and privately funded (by Government mandate) health welfare programs.
The downside of this new consumer freedom is that insurance companies also can't be forced to sell insurance to anyone and everyone at the same price. [including coverage for pre-existing conditions]
That's not a downside; that's an advantage of free markets (and so of consumer freedom). Premiums come way down, to levels much lower than the prior situation of uncompetitive State government-mandated coverages and -permissible rate bands and much more tightly tied to the actual risk being transferred (itself a freely agreed exchange between the insuree and the insurer). With a true free market, even pre-existing conditions would get insurance coverage, if at higher rates than other risk transfers (entirely appropriately because the risk is higher) but not as high as the NLMSM and the Progressive-Democrat panic-mongers claim, because while the risk of a pre-existing condition is known along one dimension--the condition exists rather than having some likelihood--it's unknown along another dimension--time: not everyone with a pre-existing heart disease, for instance, will have their heart attack or other medical event at the same time. Because that element of risk easily can be amortized, premiums wouldn't be impossibly high.
Eric Hines
I don't think the Court's tradition will necessarily require severability to be explicitly in the language of the statute. It's something courts--even conservative ones--have felt comfortable inferring from the circumstances. Same with contracts. If the parties want to, they can be explicit about whether nullifying one clause of the contract invalidates the whole contract, but they needn't. A court will still make that determination on the basis of all the surrounding facts and circumstances.
ReplyDeleteA court will still make that determination on the basis of all the surrounding facts and circumstances.
ReplyDeleteSadly, the courts do, indeed, do that. Nevertheless, when they do, they deviate from the text of the law and engage in mindreading and rewriting the law to suit their own view of need.
Eric Hines
I can't agree with you there. There are many areas a court has to rule in where the words on the page don't answer all the questions, and the facts and circumstances are relevant. I say that even though I am a strict constructionist when the words really do address the issue.
ReplyDeleteIf it's not in the text, the courts cannot answer the question--it's a political matter, and not a legal matter. Properly, the question has to be returned to the political branches for answer.
ReplyDeleteEric Hines