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Dutchess_III's avatar

Why did the judge nullify the entire ACA because he felt the individual mandate is unconstitutional?

Asked by Dutchess_III (39824points) December 15th, 2018


I why doesn’t he just cut the individual mandate out of it? There are a lot of good things about the ACA that we should keep, IMO.

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35 Answers

Mariah's avatar

His reasoning is completely whackadoodle (legal scholars of all political persuasions are saying so) but here’s what his reasoning is:

It’s not controversial that the individual mandate is now unconstitutional now that its fine has been reduced to $0. A prior court case (National Federation of Independent Business v. Sebelius in 2011) ruled that the federal government can only enforce the individual mandate via the Commerce Clause. My understanding of what this means is that the only way in which the government has the authority to punish you for not buying something is to impose a tax penalty.

During the 2017 Tax Cuts and Jobs Act, the individual mandate was basically overturned but not actually. That is, what they did was they reduced the fine for not buying insurance to $0. It is still technically illegal to not have insurance, but the punishment for doing so is nothing except a fine of $0.

In the current case, Texas v. US, the plaintiff is arguing that the individual mandate is now unconstitutional because it is not being enforced via the Commerce Clause as a tax penalty. That much is pretty easy to accept. So the individual mandate should be struck down – which amounts to absolutely nothing, as the only thing that happens is that that fine of $0 goes away.

What happens from there is the judge must consider the “severability” of the individual mandate – that is, can the rest of the law exist without it? To me, arguing that it can’t is absolutely nuts. This judge is effectively saying that this fine of $0 is such an important part of the law that the rest cannot exist without it.

Another thing that is relevant to severability is the will of Congress. The judge is trying to interpret what Congress would have done with the rest of the law if they had known that the individual mandate portion was unconstitutional. He’s claiming that, in this situation, the 2017 Congress which passed the Tax Cuts and Jobs Act would have overturned the whole ACA rather than choosing to dispose of just the $0 fine. That’s nuts as well – we know they didn’t want to do that because they voted against a full repeal of the ACA multiple times.

If there is any justice left in this land, this case will get laughed out of the Fifth Circuit Court of Appeals and this decision will get thrown away. I am still terrified, though.

Dutchess_III's avatar

^^^ Holy smokes.

Mariah's avatar

Reed O’Connor is a far-right dude so this isn’t terribly unexpected coming from him. He is being an activist judge in the worst way, trying to bend the interpretation of the law to get an outcome he wants. We can only hope that saner judges will oversee the case as it progresses through higher courts.

Dutchess_III's avatar

I think they will. I think Trump’s hypnotic reign is winding down, and we’ll get back to normal before too long. I hope.

Man, I wish we could have universal health care. Vote Bernie!

ragingloli's avatar

I bet you 100€ that the Orangutan will not call this guy a “so-called judge”.

zenvelo's avatar

The only small consolation is that if this is upheld, we might get to Medicare-for-all sooner.

Dutchess_III's avatar

Oh, I hope so.

ragingloli's avatar

It is funny, because we had it since 1883.

Mariah's avatar

Here’s an explanation by Nicholas Bagley, a very prominent healthcare lawyer and professor of law in Michigan.

I should note that he’s no fan of the ACA but his opinion is that this lawsuit is ridiculous and should be thrown out.

Just posting in case I’ve lost my credibility with regards to the ACA with folks here. I know I’m not an objective source.

Call_Me_Jay's avatar

The ACA was a convoluted mess from the beginning. The intent was good, and it had its merits, but Republicans successfully made it overly complicated, expensive, and weak.

So if this leads to something better (I know, chances are slim) then fine.

The ACA was the biggest example of the maddening accommodations that Obama would make, treating Republicans as if they were well-meaning and acting in good faith.

They hacked away at the plan, saying, “you need to change it, or we won’t vote for it.” And the Democrats made concessions and it got worse and worse. And then NOT A SINGLE Republican voted for it. It was Lucy and the football politics.

stanleybmanly's avatar

This sort of idiocy is probably unavoidable as the richest nation on earth is dragged kicking and screaming into single payer universal healthcare. If this decision is upheld, the resulting chaos will only hasten that day.

elbanditoroso's avatar

It won’t be upheld. I was reading a bit on this afternoon (see: and the wisdom of those guys, who are not liberals, but libertarians and swing to the right – is that the judge is off his rocker.

The judge ignored a bunch of things and contorted the law to reach his conclusion. The ACA isn’t going away.

seawulf575's avatar

I haven’t read much about his actual reasoning. I think @Mariah gave a good explanation above. The Individual Mandate was a questionable thing from the start. Obama pushed the ACA with the promise that it would not create a new tax. He stated the failure to buy insurance would result in a penalty. THAT is unconstitutional. When it got to the SCOTUS, Justice Roberts bailed him out of that by calling it a tax and saying it was Constitutional for the Congress to impose new taxes. After that Obama was glad to crow about how it was Constitutional because it was a tax. That confusion in the beginning caused much hate and discontent in the country.

Dutchess_lll's avatar

Why is it not unconstitutional to make us by car insurance?

Mariah's avatar

@seawulf575 The individual mandate was not unconstitutional until the GOP zeroed out the penalty in 2017. The courts have already decided this.

zenvelo's avatar

@Dutchess_lll You don’t have to buy car insurance. You can walk or ride a bike or take the bus or hitchhike.

Driving a car is not a right, it is a privilege, and so each state sets its own rules and regulations, one of which is you must have liability insurance to cover costs borne by others when you get in an accident. And car insurance is not regulated by the Federal Government.

Those are all the reasons car insurance is not unconstitutional.

seawulf575's avatar

@Mariah actually, if the individual mandate was what Obama and the Dems were originally saying it was, a penalty and not a new tax, it WAS unconstitutional. In fact, the ACA law even calls it a penalty (not a tax). The problem with that is the Commerce Clause allows the federal government to regulate commerce between the states, but doesn’t allow them to Compel that commerce (i.e. penalize you for not buying something). That’s why John Roberts’ opinion saved the ACA. HE called it a tax, which IS allowed by the federal government. The fact that Obama and the Dems lied about no new taxes being created was largely ignored by the MSM…as usual.

Dutchess_III's avatar

You know what I mean, @zenvelo. Don’t twist it around.

zenvelo's avatar

@Dutchess_III I am not twisting it around, there are fundamental differences. I support ACA and wish we could move to universal healthcare and take profits out of the medical industry. Yet even supporting that, I don’t like the idea of a monetary penalty for not buying health insurance.

Better than paying for health insurance, just tax people for health care. Medicare for all.

Dutchess_III's avatar

I don’t like the mandate either. What makes it “unconstitutional,” though? And why is driving without car insurance a crime? Why is driving without wearing a seat belt a crime? Or a helmet, if you’re riding a bike?

stanleybmanly's avatar

You can drive all you want without insurance or seatbelts. You just can’t drive on the public roads or the private property of others. The state has the right to enact and enforce the rules of its roads.

stanleybmanly's avatar

My guess is that the courts will either find or invent an excuse to support the legality of the ACA In fact the honest ruling would be that any dispute over the validity of the ACA is meaningless compared to the irreparable and certain harm to befall the nation through its abrupt elimination.

Mariah's avatar

seawulf I don’t know why you think I don’t know all that. I covered it in my first post. I mentioned the court case by name.

The point is that the issue NOW is caused by the GOP’s change to the ACA. It has nothing to do with the ACA as originally written.

Mariah's avatar

What difference does it make to you if they call it a tax or a penalty? Lmao you’re so fixated on the “lie” about the tax. It’s money out of your pocket either way, why do you care what they call it?

seawulf575's avatar

Because a penalty is unconstitutional. It sets up the idea that the federal government can start forcing you to buy specific things, whether you want them or not. It is coercion. Taxing isn’t much better, but is, at least, moderated by the congress as opposed to the IRS. In a very direct way, the IRS does not answer to the taxpayers, Congress does. And you can see the results of that impact with the change the Repubs pushed through. Their constituencies were holding them accountable to do something about the ACA. So they negated that part which made the whole house of cards stand. Without the individual mandate, the whole ponsi scheme falls apart. If the individual mandate were a penalty, the IRS would have to deal with changing how things were done. What do you think…is the IRS receptive to your feedback?

Mariah's avatar

Ponzi scheme? Do you understand that this law is keeping a lot of people alive? Do you just not care about that? Sometimes I can’t believe the lack of empathy you feel for your fellow man. Hey, as long as it’s good for your bank account, right?

Mariah's avatar

Just to be clear here, this is the logic you’re using:

1. Obama lied because he said there would be a penalty and not a tax, but the penalty ended up getting converted to a tax by the SCOTUS ruling.
2. A tax is favorable to a penalty, so this outcome is actually better than the one we were promised.
3. Therefore, fuck Obama, the ACA, and all the sick people who rely on it.

seawulf575's avatar

No, I said that Obama lied saying there would be no new taxes created by the ACA. It is distinctly called a penalty repeatedly in the law. I’m saying the only thing that kept it from being unconstitutional was the decision by the SCOTUS to redefine penalty to read “tax”. I am saying the difference between a tax and a penalty in this case is that one makes the law legal, the other makes it illegal. I’m saying that the ACA is designed like a Ponzi Scheme. It is designed so that many healthy individuals can pay for insurance they don’t need, at a rate that goes up year after year, so that others can have it more cheaply. And you can unwad your panties…that isn’t a slam on people that need healthcare. But here’s the problem with Ponzi schemes…they eventually fail. They are great while they are going on, but eventually they fail. And when they do, those that are invested in them lose everything. Do you understand that means all those people it is keeping alive? Do you just not care about that? Sometimes I can’t believe how foolish you are and heartless to not care about those people! But hey, as long as it sings the liberal song, right?

Mariah's avatar

Yes, I get it. You’re upset about the “lie” because Obama was unable to predict the future. He intended to not make a new tax but it ended up being so. The difference is largely semantical, and you yourself admitted that the tax is favorable to a penalty, so it seems you should be happy with this outcome. Instead you have your “panties in a wad.”

That’s literally how insurance works??? The people who don’t use it subsidize those who do. Is this news to you?

Educate yourself: the ACA marketplaces are stable, even despite your party’s attempts to sabotage it:

Source 1
Source 2
Source 3
Source 4
Source 5
Source 6
Source 7

If you care about sick people so much, I’d love to hear your genius ideas for how to protect us without the ACA. Really, go for it, tell me all about it. Because every single policy that your party has proposed over the past two years would utterly fuck people like me.

Response moderated (Personal Attack)
stanleybmanly's avatar

The ACA is indeed a vehicle primarily suited to insuring the preservation and profitability of parasitic insurance and pharmaceutical corporations. There is nevertheless no denying that millions of previously uninsured people now have some form of medical coverage, and critical elements like the illegality of penalizing pre-existing conditions are now in place. Frankly, whether Obama lied to achieve this with the collusion of the undeniably conservative Supreme Court is open to interpretation , but a waste of time and effort. The ACA is in fact a scheme cooked up by insurance companies who saw the writing on the wall, It was then handed off to CONSERVATIVES (Romney) to implement the pilot program, then adapted by Obama. Whether he lied or the conservative SCOTUS colluded with him is open for discussion but an utter waste of time. We aren’t going back! Apparently all sorts of foolishness is required to claw our way through the profit motive toward universal single payer healthcare.

Mariah's avatar

Stop fucking calling me dear, for starters, you condescending schmuck. I am aware you are an independent but I will continue calling the GOP your party for as long as you continue to defend every fucked up thing they do.

I don’t know where you get off assuming that I don’t care about the high cost of healthcare. I am incredibly angry about the high cost of healthcare in the US; I’ve read entire books on the topic, and I actively campaign for measures that would help bring it down. I would love a piece of legislation that would attack the problem at its source. That’s an entirely separate issue from the ACA. This legislation would need to exist in addition to, not instead of, the ACA. They tackle different problems. The ACA ensures that those of us who need medical care aren’t fucked by insurers. A new piece of legislation would tackle pricing at the provider level. There is absolutely no need to repeal the ACA in order to tackle pricing; inf fact, if you repeal the ACA without first tackling pricing, patients will be more exposed to our current high prices and will die as a result.

One thing that would help reduce the cost of healthcare would be allowing Medicare to negotiate drug prices. Repealing the ACA is in no way required in order to make this happen, and your beloved Trump administration has not pursued it (even after promising to do so – but you don’t mind broken promises and lies when they come from Trump.) Another issue is provider consolidation,” which the ACA does not cause and which – surprise, surprise – the Trump administration is not doing anything to control.

That said, you are also dead wrong that the ACA does nothing to tackle the price of health insurance or medical care. Here’s one example: it requires insurers to use no less than 80% of each premium dollar to pay for patients’ bills. Before the ACA, the medical loss ratio was closer to 65%, which allowed insurers to make a huge profit on the patients’ backs. They can’t do that anymore.

Every one of the GOP’s “repeal and replace” healthcare proposals from 2017 would do nothing to address the price of healthcare. All of them proposed bringing down costs on the healthy by excluding expensive sick people from the market and letting us die. That is not a solution.

I notice that you didn’t provide any actual solutions for any of these issues except to screech about how the ACA didn’t solve them (when that was never the goal of the ACA in the first place). It’s easy to bitch about the current system but if you don’t have a suggestion about how to fix it then your words are useless. I love the ACA because it was progress in the right direction and it’s the only thing currently stopping sick people like me from dying at the hands of greedy insurance corporations, but even I won’t pretend it’s the end game. I support single-payer healthcare which would drive down costs by giving the government ultimate bargaining power – don’t bill unfairly or you won’t get paid. It would also remove the administrative overhead of insurance companies (Medicare’s MLR is something like 98%). Studies have shown it would save trillions of dollars. So, no, I’m not over here pretending our current system is perfect and there are no problems left to solve. Don’t put words in my mouth.

seawulf575's avatar

Sorry dear. But you are looking at this whole thing the wrong way. The ACA was blasted through without any of those voting on it actually reading it. It was not particularly well thought out (if its goal was to address the high cost of healthcare and why some people can’t get coverage). It was a glorified political game….period. Let’s look at what it was supposed to do. It was supposed to allow everyone to get healthcare insurance. No…it DEMANDED everyone gets healthcare insurance. Why do they need healthcare insurance? Because medical costs are ridiculously high. Did it look at that? Nope. Did it stop to ask the questions I asked in my previous reply? No. That would have actually been a quality effort to make healthcare affordable. It did absolutely nothing to reign in costs. It just made sure everyone had to pay for it. You think that the insurance company having to pay 80% of each premium dollar was a punishment for the insurance companies? Not a chance. They increased the premium payments, they increased the deductibles and they increased the out of pocket max. So those that couldn’t afford healthcare insurance before are still in the boat of having to pay out of pocket.
I have stated exactly what I think needs to happen to replace ACA many times on Fluther. You have been in on some of those discussions as well. So no, I’m not going to repeat myself, yet once again, because you don’t remember. And Don’t Put Words in YOUR mouth?!? Let me help you out with your hypocrisy, lady

“Hey, as long as it’s good for your bank account, right?”

“Just to be clear here, this is the logic you’re using:
1. Obama lied because he said there would be a penalty and not a tax, but the penalty ended up getting converted to a tax by the SCOTUS ruling.
2. A tax is favorable to a penalty, so this outcome is actually better than the one we were promised.
3. Therefore, fuck Obama, the ACA, and all the sick people who rely on it.”

_“You’re upset about the “lie” because Obama was unable to predict the future.”

Now who the fuck has been putting words in whose mouth your arrogant wench?!?

Mariah's avatar

In what way would repealing the ACA address any of these issues? Why can’t we have separate legislation that tackles high pricing in addition to the ACA? You still haven’t answered that. It seems you want the ACA gone because it’s Obama’s legacy and you hate him.

Premiums have gone up because the money for covering the sick folks that insurance companies are now required to cover has to come from somewhere.

I don’t know why I talk to you. You don’t debate in good faith. And I legitimately have no memory of you ever offering a replacement for the ACA, so either my memory is faulty or you haven’t done it. Since you won’t offer me a link to one of these many replies that supposedly exist, I will assume you’re lying about that. I think I would have remembered it. Feel free to prove me wrong.

Mariah's avatar

Here is another proposal I love for bringing down costs, specifically aimed at ER billing. No repeal of the ACA required.

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