Thursday, December 20, 2018

Federal judge strikes down Obamacare in Texas

BREAKING: District Court Judge in Texas Holds ACA Is Unlawful - Volokh Conspiracy : - Jonathan H. Adler:

December 14, 2018 - "This evening, as the Affordable Care Act's enrollment period ended, Judge Reed O'Connor of the U.S. District Court for Northern District of Texas issued his much-awaited opinion in Texas v. United States, concluding that the individual mandate is unconstitutional and that, as a consequence, the entire Affordable Care Act is invalid. This is a surprising result, and one that is hard to justify....

"The problems with Judge O'Connor's opinion are evident at the outset where he summarizes his conclusion....
In NFIB, the Supreme Court held the Individual Mandate was unconstitutional under the Interstate Commerce Clause but could fairly be read as an exercise of Congress's Tax Power because it triggered a tax. The TCJA eliminated that tax. The Supreme Court's reasoning in NFIB — buttressed by other binding precedent and plain text — thus compels the conclusion that the Individual Mandate may no longer be upheld under the Tax Power. And because the Individual Mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause — as the Supreme Court already held.
"The problem with this analysis is that its central claim — that 'the Individual Mandate continues to mandate the purchase of health insurance' — is false ... there is nothing left in the ACA that mandates that people obtain health insurance.

"Judge O'Connor ... goes on to claim that this justifies declaring the whole law invalid because Congress, in 2010, claimed the mandate was essential to the operation of the Act. Yet Congress in 2017 reached a different conclusion when it enacted legislation zeroing out the mandate penalty. The ACA today — the ACA as amended by Congress in 2017 — no longer relies upon an enforceable individual mandate to operate because there is none....

"Because the law imposes no penalty or legal sanction on failing to comply, there is no injury as required by Article III, let alone an actual and concrete injury-in-fact.... Standing requires an actual injury. An unenforced and unenforceable horatory admonition doesn't cut it.

"Judge O'Connor's opinion declares the individual mandate to be unconstitutional, and declares the rest of the ACA to be inseverable and invalid -- all of it, including those provisions that have nothing to do with health insurance markets. Yet Judge O'Connor has not (as yet) issued an injunction barring enforcement of the law....

"I ... do not believe the states' arguments have much of a chance before the Supreme Court. Indeed, I would not be surprised were this decision to be overturned on standing on appeal, in which case certiorari would almost certainly be denied."

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