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Title: NFIB v. Sebelius Comes Back to Bite Obamacare
Source: The Spectator
URL Source: https://spectator.org/nfib-v-sebelius-comes-back-to-bite-obamacare/
Published: Jun 11, 2018
Author: David Catron
Post Date: 2018-06-11 09:31:44 by Tooconservative
Keywords: None
Views: 164
Comments: 7

Why the DOJ won’t defend the health care law in Texas v. United States.

Unless you have been vacationing in a far away galaxy, you will have heard the ululations of Obamacare apologists enraged by the Trump administration’s refusal to defend the health care law against a 20-state lawsuit challenging its constitutionality.Obamacare advocates claim that the failure to defend the ACA in Texas v. United States is an unprecedented dereliction of duty by the Department of Justice (DOJ). This is hysterical nonsense. It is indeed unusual, but the DOJ is by no means obligated to defend a law deemed unconstitutional by the President, as Attorney General Sessions explains in his notification letter to Congress:
The Department in the past has declined to defend a statute in cases in which the President has concluded that the statute is unconstitutional and made manifest that it should not be defended, as is the case here.See Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

Not coincidentally, this is the very language that erstwhile Attorney General Eric Holder used in his letter advising Congress, in February of 2011, that the Obama DOJ would not defend the constitutionality of the Defense of Marriage Act (DOMA). That decision was cheered by the very people who now accuse the Trump administration of “lawlessness” for not defending Obamacare. Ironically, the very real threat posed by Texas v. United States has its roots in another legal travesty that these people also celebrated — the 2012 Supreme Court ruling in NFIB v. Sebelius. That decision contained the seeds of Obamacare’s destruction.

Chief Justice Roberts, who wrote the majority opinion in NFIB v. Sebelius, rejected the Obama administration’s claim that Congress could impose the individual mandate pursuant to the Constitution’s Commerce Clause. However, Roberts held that the mandate was nonetheless constitutional because its penalty was in effecta tax. He ostensibly reached this conclusion because it was designed to raise revenue and would be enforced by the IRS. The plaintiffs in Texas v. United States argue that this rationale, such as it was, no longer applies because Congress reduced the tax-penalty to zero last year. Their complaint puts it thus:
The Patient Protection and Affordable Care Act…as recently amended, forces an unconstitutional and irrational regime onto the States and their citizens. Because this recent amendment renders legally impossible the Supreme Court’s prior saving construction of the Affordable Care Act’s core provision — the individual mandate — the Court should hold that the ACA is unlawful and enjoin its operation.

In other words, when Congress passed the Tax Cuts and Jobs Act of 2017, NFIB v. Sebelius was converted from a shelter protecting Obamacare to a smart bomb aimed at its most important provision. The 2012 SCOTUS ruling precludes any claim that Congress had the authority to impose the mandate pursuant to its powers under the Commerce Clause. Nor can it be defended as a tax because it will raise no revenue for the government. And the plaintiffs go even further. They argue that the mandate isn’t severable from Obamacare’s other provisions — meaning that the entire law must fall if the individual mandate is ruled invalid:
Once the heart of the ACA — the individual mandate — is declared unconstitutional, the remainder of the ACA must also fall… without any accompanying exercise of Congress’s taxing power, which the Supreme Court already held that Congress has no authority to enact. Not only is the individual mandate now unlawful, but this core provision is not severable from the rest of the ACA.

This claim is based on two features of the law’s text: It contains no severability clause — standard language to the effect that the statute would remain valid even if one or more of its provisions proved to be in violation of existing law — and its explicit assertion that the ACA cannot function without the individual mandate. It’s unlikely that the entire law will be struck down. However, in NFIB v. Sebelius the Obama DOJ argued that the mandate was not severable from two of the law’s crucial provisions — guaranteed-issue and community rating. The judge may seize on this argument and strike down these provisions along with the mandate.

If these provisions are struck down, Obamacare will have been all but nullified. This is why the Democrats and the media have so shamelessly misrepresented the decision not to fight Texas v. United States. Obama’s last CMS administrator Andy Slavitt tweeted the following false claim: “The Trump DOJ tonight just told the courts to dismantle pre-existing conditions protections and other consumer protections.” The most hypocritical claims take the Trump administration to task for not enforcing the law. Ruth Marcus, who celebrated the refusal of Obama’s DOJ to enforce DOMA, wrote the following rubbish in the Washington Post:
This is a huge deal… the administration’s behavior sets a dangerous precedent about the obligation of this and future presidents to follow their constitutional duty to faithfully execute the laws enacted by Congress.… This is not a slippery slope. It is a ski jump into lawlessness.

This kind of hypocrisy isn’t likely to have much effect on the outcome of the case, however. The lawsuit will be heard by U.S. District Judge Reed O’Connor of the Northern District of Texas. O’Connor was appointed by George W. Bush and recently ruled that health care providers cannot be forced to perform procedures that conflict with their religious beliefs. Consequently, he has been the victim of the usual attacks in the media. Yet he has granted standing to a group of 17 Democratic-led states that filed a brief on Thursday night arguing for the preservation of Obamacare, and will no doubt give them a fair hearing.

Successfully defending Obamacare will, however, be a heavy lift. These states will have to convince the judge to ignore the implications of NFIB v. Sebelius in the absence of the tax that Chief Justice Roberts used as a pretext for preserving the mandate in 2012. They will also have to contend with the following assertion from the Attorney General of the United States: “I have determined that the plaintiffs in Texas v. United States are correct that Section 5000A(a) [the individual mandate] will be unconstitutional when the Jobs Act’s amendment becomes effective in 2019.” In the end, Obamacare is just indefensible.


Poster Comment:

A very good summary that explains the legal basis for striking down 0dingaCare because the penalty for the individual mandate has been eliminated.

It leaves Roberts with no place to hide to save 0-care, not even the usual shelter of the Commerce Clause, the last refuge of criminal judges.

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#1. To: Tooconservative (#0)

you will have heard the ululations of Obamacare apologists

Hmmmm. A little Muslim dig?

misterwhite  posted on  2018-06-11   10:03:00 ET  Reply   Trace   Private Reply  


#2. To: misterwhite (#1)

Hold on there, Mohammed. This is just about how the states are trying to hoist 0dingaCare by its own legal petard and ram it down Roberts' throat.

And the punishment certainly fits the crime.

Tooconservative  posted on  2018-06-11   10:21:59 ET  Reply   Trace   Private Reply  


#3. To: Tooconservative (#2)

This is just about how the states are trying to hoist 0dingaCare by its own legal petard and ram it down Roberts' throat.

By calling the penalty a tax, Roberts made it eligible for a "tax reform" policy that set it to zero.

Almost like that was the plan all along.

misterwhite  posted on  2018-06-11   10:32:26 ET  Reply   Trace   Private Reply  


#4. To: misterwhite (#3) (Edited)

By calling the penalty a tax, Roberts made it eligible for a "tax reform" policy that set it to zero.

I think Roberts painted himself into a corner. Don't try to give him any credit; he just wanted the Slimes and WaPo to write nice things about him.

He will entirely demolish his reputation as a jurist if he tries to find another basis to justify not striking down 0-care. And that judicial legacy is something these dictators-in-robes care a lot about.

I like that Dubya judge in Texas. I'm pretty sure he's going to dump this right in the Court's lap in as pointed a way as possible. Preferably, he'll strike down 0-care and include a nationwide injunction against its enforcement, like the Left coast judges did when trying to stop Trump's travel restrictions.

Tooconservative  posted on  2018-06-11   10:44:56 ET  Reply   Trace   Private Reply  


#5. To: Tooconservative (#4)

Don't try to give him any credit; he just wanted the Slimes and WaPo to write nice things about him.

You have to admit that it did seem odd at the time that a recently appointed conservative judge would do what he did. He was obviously reluctant to strike down this landmark legislation on a technicality.

So I'm saying maybe Roberts' idea was, if you conservatives can regain a majority in Congress, here's a way to repeal Obamacare with only 51 votes.

misterwhite  posted on  2018-06-11   11:17:55 ET  Reply   Trace   Private Reply  


#6. To: misterwhite (#5) (Edited)

You have to admit that it did seem odd at the time that a recently appointed conservative judge would do what he did. He was obviously reluctant to strike down this landmark legislation on a technicality.

It was no mere technicality. The thousands of pages of 0-care insisted that the mandate was not a tax and it declared that in dozens of passages. In no portion of the text was the "penalty" ever called a "tax".

Roberts made it up out of thin air to save 0-care. He created his own law from the bench, directly contradicting the black-letter law in front of him and many other relevant Court precedents. Because otherwise WaPo/Slimes might write mean things about him and make him cry.

Roberts is the weak sister of the Court, well, right after Kennedy. And a Kennedy retirement will bring Roberts out of the shadows as the new swing vote on the Court (flapping incomprehensively in the wind as Kennedy has done for decades).

So I'm saying maybe Roberts' idea was, if you conservatives can regain a majority in Congress, here's a way to repeal Obamacare with only 51 votes.

Roberts had no way of knowing that Senate rules would remain the same. And they have obviously changed; witness the confirmation of Gorsuch.

No. It doesn't wash. Roberts wasn't being that sly and he isn't that conservative. And he did break his oath and nakedly legislated from the bench. You can't put lipstick on that pig.

Tooconservative  posted on  2018-06-11   12:05:13 ET  Reply   Trace   Private Reply  


#7. To: Tooconservative (#6)

The thousands of pages of 0-care insisted that the mandate was not a tax and it declared that in dozens of passages.

I know. Legally, you're correct. And the Democrats did that because they promised that Obamacare wouldn't raise taxes.

But by technicality I mean that it makes no difference to the consumer whether Congress called it a $500 annual penalty or a $500 annual tax. Roberts wasn't about to 86 the entire bill for that.

"Roberts wasn't being that sly and he isn't that conservative. And he did break his oath and nakedly legislated from the bench."

Sure. That's also possible.

misterwhite  posted on  2018-06-11   13:09:05 ET  Reply   Trace   Private Reply  


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