Two Republican attorneys general just made Trump look like a fool with one crisp paragraph
Last week, over the objections of President Donald Trump’s own attorney general and his own health secretary, the Trump administration announced that it would not defend the Affordable Care Act against a lawsuit that is widely viewed as frivolous. On Monday, the Republican attorneys general of Ohio and Montana joined the chorus of legal experts who oppose Trump’s effort to kill Obamacare by judicial decree, filing an amicus brief arguing that the operative parts of the law should be upheld in their entirety.
The premise of Texas v. United States is that, because Congress effectively repealed the Affordable Care Act’s individual mandate in 2017, courts must now toss out the entire law.
As originally enacted in 2010, Obamacare’s individual mandate requires most Americans to pay higher income taxes if they do not have health insurance. In the 2017 tax law, Congress reduced the tax penalty for not carrying insurance to zero dollars. The Texas plaintiffs claim that this revision also rendered the mandate unconstitutional because the Supreme Court upheld that provision as an exercise of Congress’ power to tax — and the mandate no longer functions as a tax if it raises no revenue (indeed, it doesn’t function as anything at all).
The question of whether the neutered mandate is unconstitutional is both debatable and uninteresting. Who cares if a provision of law that does nothing is constitutional? But the Texas plaintiffs then take an extraordinary leap — they claim that the alleged unconstitutionality of the non-functional mandate requires the whole law to be struck down.
Sometimes, when a court strikes down one provision of a law, it must strike down other parts of the law as well — an inquiry known as “severability.” But there is a strong presumption against striking down more of a law than is absolutely necessary to excise the unconstitutional provision. As the Supreme Court explains, “in order for other . . . provisions to fall, it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’”
Here, the 2017 Congress effectively repealed the mandate without touching other provisions of the law. That’s conclusive proof that Congress intended to leave the rest of the law intact.
Nevertheless, the Texas plaintiffs point to the 2010 Congress’ determination that the mandate is “essential” to the law’s broader regulation of the health insurance industry, a finding that was written into the statute itself. But, as the Ohio and Montana attorneys general explain, the 2010’s Congress’ understanding of the law is simply irrelevant to the Texas case. When courts conduct a severability inquiry in Texas, they must ask what the 2017 Congress thought about the mandate, not what the 2010 Congress thought about it.
The District Court erred in coming out the other way. It failed to ask whether the now-inoperative mandate is essential to the Affordable Care Act as currently
codified. (How could it be?) Instead, it asked whether the original version of the
individual mandate—the one that Congress made enforceable with a penalty—was central to the original version of the Affordable Care Act. The Court thus invalidated the current version of the Affordable Care Act by assessing the importance of an earlier version of the mandate to an earlier version of the Act. To describe the approach is to refute it.
The case is now pending before the conservative United States Court of Appeals for the Fifth Circuit, which has five Trump judges and a few others who could conceivably vote to strike down the law out of partisan disdain for Obamacare. Should they follow the law, however, they will heed the advice of these two Republican attorneys general and shut this lawsuit down.