Saturday, June 9, 2018
Sixteen states plus the District of Columbia responded this week to the Justice Department's brief in the Texas Obamacare challenge. The intervenor-defendants argue that (1) the individual mandate remains within congressional authority under its taxing power (even post Tax Cuts and Jobs Act, which set the tax-penalty at $0), (2) if the individual mandate is unconstitutional, the remedy is to strike that portion of the TCJA setting the tax-penalty at $0 and reinstate the original tax amount (to save it), and (3) even if it's unconstitutional, the rest of the ACA is severable (and thus savable). The states also argue that the plaintiffs lack standing, because they can't be harmed by a $0 tax.
Here's the gist:
First, Plaintiffs are unlikely to prevail on the merits. Continuous production of revenues is not a constitutional requirement for a tax, and the minimum coverage requirement will continue to produce revenue for years to come. If the Court nevertheless concludes that the minimum coverage requirement will become unconstitutional once it ceases to generate revenue, under long-standing and controlling Supreme Court precedent, the proper remedy is to strike the unconstitutional amendment and revert back to hte prior statutory provision which was upheld in NFIB.
If the Court reaches the severability question, it should sever the unconstitutional provision and leave the remainder of the ACA intact, as the Supreme Court has done in almost every case over the past century. The touchstone for any decision about remedy is legislative intent, which a court cannot use its remedial powers to circumvent. Here, the Congress that passed the TCJA expressly and intentionally left the rest of the ACA untouched. Striking down the entire ACA would disregard that intent and impose an outcome that Congress chose not to achieve through the legislative process. Even if the severability inquiry turned on the intent of the Congress that enacted the ACA (and it does not), Plaintiffs have not come close to demonstrating that it is "evident" that Congress would have wished for the entire ACA to be struck down just because a later Congress reduced the tax for not maintaining health insurance to $0.