Open thread July 9, 2019 Dan Crawford | July 9, 2019 6:56 am Tags: open thread Comments (2) | Digg Facebook Twitter |
Have a nice day, Susan Sarandon (and all of those leftier than thous out there).
“The Affordable Care Act Could Fall Courtesy of Nonsense Conservative Legal Arguments
They don’t need to make sense. They just need the right judges—and they’re everywhere in the federal judicial system.
If you’re one of the people whose lives were made easier by the provisions of the Affordable Care Act, we here at the shebeen would like to welcome you cordially to the next 30 years of conservative Republican federal judges and the courts over which they preside, in which threadbare and fanciful legal theories don’t even have to make any damn sense at all to be heard and, very likely, prevail.
Of course, many of you won’t live to see the effects of the entire 30 years. You may be better off. At ThinkProgress, Ian Millhiser sends his regards.
‘The Republicans, by contrast, came to court today wearing their partisan hats. When Samuel Siegel, the first of two lawyers defending the law, was at the podium for his portion of the arguments, Judges Jennifer Elrod and Kurt Englehardt peppered him with questions, many of them delivered in a mocking tone. At one point, Englehardt even accused Siegel of making an argument that betrays the American Revolutionary War. Meanwhile, the three lawyers opposing the law did receive some critical questions from the two Republican judges, but those questions were not especially animated and they soon trailed off. Kyle Hawkins, the lawyer who delivered the bulk of the anti-Obamacare arguments, spent much of his time speaking before a silent panel, punctuated mainly by listless questions from Elrod that seemed designed primarily to give him something to talk about.’
The whole matter is being fought out on the distant floor of our current political chasm. The suit was brought by Republican state attorneys general. The law is being defended by Democratic state attorneys general. The administration* has bounced between advocating partial and full judicial repeal, ending up supporting the latter. The arguments being made—and taken seriously—in the Fifth Circuit are farcical. Millhiser explains.
‘The premise of Texas is that the 2017 tax law, which zeroed out a provision of the Affordable Care Act that previously required most people without health insurance to pay higher taxes, actually repealed the entirety of Obamacare. The argument goes something like this: that provision, known as the “individual mandate” is actually drafted as two separate provisions. The first provides that most Americans “shall” carry health insurance. The second imposes a tax on people who fail to do so. After 2017, the amount of that tax is zero dollars.
In NFIB v. Sebelius, the Supreme Court famously upheld the individual mandate as an exercise of Congress’ power to tax. But wait! Because that tax is now zero, that means it’s no longer a tax, so it must be unconstitutional. Worse, because the word “shall” still appears in the law, that means that the post-2017 version of Obamacare must now be read as a command to buy health insurance — and an unconstitutional one at that. There are numerous problems with this argument, but the biggest one is that the Supreme Court explicitly rejected it in NFIB. As Chief Justice John Roberts wrote in that case:
Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. Before 2017, in other words, the law gave people a choice between paying a tax or buying health insurance. After 2017, they fully comply with the law by either carrying insurance or paying zero dollars.’
And here’s where the whole business goes sideways. There’s this legal principle called “severability,” whereby, if a court strikes down part of a law, it asks itself whether other parts of the law must be struck down as well. This requires the court to do a little mind-reading, asking itself to judge whether the legislation would’ve passed had the legislature known that part of the law was unconstitutional. It would seem to the logical mind, however, that Congress itself had solved the severability question two years ago when it could muster the votes only to repeal the individual mandate.
Clearly, it would seem, Congress’s intent, as expressed by its vote, which is a fairly compelling expression of the legislative mind, as you and me and James Madison understand it, was only to drop the mandate to zero dollars. (A lawyer representing the House of Representatives has appeared in court to defend this position.) The lawyers now seeking to invalidate the whole law simply blow by this obvious point and claim that the elimination of the mandate invalidated the whole law. They got a district judge to agree with them and so, here we are, on a trip to Crazytown, and the Fifth Circuit seems to be enjoying the view out the windows.
Especially happy with the scenery is one Kurt Engelhardt, a judge elevated to the set he now holds by El Caudillo del Mar-a-Lago. From The New York Times.
‘Over all, though, the panel spent the most time on the question of whether the rest of the law should fall if Judge O’Connor was correct in scrapping the insurance mandate — and Judge Elrod and Judge Engelhardt, based on their questioning, seemed to firmly believe he was. Judge Engelhardt asked Mr. Letter, the House lawyer, why Congress could not remedy the situation by writing a new health law or set of laws. “They could do this tomorrow,” Judge Engelhardt said, leading Mr. Letter to dryly point out that Mr. Trump would need to sign off on new laws, too. And obviously the president would sign this, right?” he asked sardonically. “No, obviously not.”’
Yes, if there’s anything the past decade has taught us, it’s that reforming healthcare in this country is one of the easiest lifts there is. Congratulations again to all those leftier-than-thou pundits who claimed that Hillary Rodham Clinton was “blackmailing” us by bringing up the importance of the federal courts as an issue during the 2016 presidential campaign. I say that on behalf of the estimated 24,000 people who won’t be around to say it if this lunatic argument persuades the obviously persuadable on the Fifth Circuit bench and then gives the new conservative majority on the Supreme Court another chance to finish off Barack Obama’s greatest accomplishment, which seems to be the whole point of this exercise in the first place.”
News from CNBC on the economic resurrection of my birth state Kansas: https://www.cnbc.com/2019/07/09/top-state-mover-kansas-rebounds-from-tax-cutting-disaster.html?&qsearchterm=kansas
Yet another data point added to the disastrous Wisconsin experiment. Despite decades of right wing economic myth making the data is difficult to refute. Austerity and tax cuts kill economies and businesses.
Can somebody fill the DNC on this development? Please?