BREAKING NEWS: Texas Judge has struck down Affordable Care Act, declared unconstituional

[Oceander]

No surprise there.  It's what hell-bound harpies do.

Yes, but the shrieking is particularly loud this time around, which suggests the court struck a real nerve.   There is real fear, that wasn’t present before, that Obamacare gets dumped.   

[the_doc]

Yes, but the shrieking is particularly loud this time around, which suggests the court struck a real nerve.   There is real fear, that wasn’t present before, that Obamacare gets dumped.

If ACA gets dumped, Trump will be blamed by the harpies for not fighting to have his Solicitor-General oppose the District Judge's decision.  The loud shrieking will be wonderful, because it will be giving Trump credit for destroying Obamacare.

This would be a fabulous scenario, i.e., Trump getting credit for "keeping" a campaign promise by his very passivity.

[Oceander]

If ACA gets dumped, Trump will be blamed by the harpies for not fighting to have his Solicitor-General oppose the District Judge's decision.  The loud shrieking will be wonderful, because it will be giving Trump credit for destroying Obamacare.

This would be a fabulous scenario, i.e., Trump getting credit for "keeping" a campaign promise by his very passivity.

It would be ironic. 

[the_doc]

It would be ironic.

You ain't wrong, friend.

[Victoria33]

Fingers crossed.
I think it says something, though, that the democrats and liberals are shrieking like hell-bound harpies about this case.

@Oceander

I have medicine insurance.  Doc gave me a new pill (for me) for high uric acid.  I paid $42 for 30 pills.  Without insurance, it would be $440.  That is ridiculous and if one has no such insurance, they are in danger of losing their life because they can't afford to get medicine.  What is the answer to this?

[the_doc]

@Oceander

I have medicine insurance.  Doc gave me a new pill (for me) for high uric acid.  I paid $42 for 30 pills.  Without insurance, it would be $440.  That is ridiculous and if one has no such insurance, they are in danger of losing their life because they can't afford to get medicine.  What is the answer to this?

At the very least, we need Big Pharma reform and insurance reform.

[Hoodat]

@Oceander

I have medicine insurance.  Doc gave me a new pill (for me) for high uric acid.  I paid $42 for 30 pills.  Without insurance, it would be $440.  That is ridiculous and if one has no such insurance, they are in danger of losing their life because they can't afford to get medicine.  What is the answer to this?

Big Pharma helped draft an Obamacare bill with fine print that mandates that any Obamacare exchange policy must cover this particular drug, which means that no matter how much they charge, these exchange policies will pay it.

Take away these mandates, and Big Pharma will see themselves priced out of the market.  Get government insurance out altogether, and you will see $15 pills fall to under $5.

It was Big Pharma that gave us Obamacare.  It is no wonder why drug prices have skyrocketed since then.

[Oceander]

@Oceander

I have medicine insurance.  Doc gave me a new pill (for me) for high uric acid.  I paid $42 for 30 pills.  Without insurance, it would be $440.  That is ridiculous and if one has no such insurance, they are in danger of losing their life because they can't afford to get medicine.  What is the answer to this?

The answer is a more nuanced system that doesn’t try to run roughshod over certain people for the benefit of other people, doesn’t try to implement a failed Soviet style socialized medicine model, that doesn’t mandate unnecessary insurance for everyone, and doesn’t denigrate the very real benefits of a free market.

Furthermore, nobody dies for lack of insurance.  One may end up having to spend one’s assets down (or put them in a Medicaid trust) before one can qualify for Medicaid, but at the end of the day, Medicaid is there for that reason, and this case won’t make it go away. 

I am not unsympathetic.  We have just spent several very frustrating months getting some elderly family members qualified for Medicaid without them having to lose their house, so I understand the stakes.  But I also understand that thanks to Obamacare my family and I lost a decent insurance policy and ended up paying thousands a month for a policy that was more or less useless. 

[montanajoe]

Assuming arguendo that enforcement of the district court’s order is stated pending appeal, that stay will expire if the appeal is denied, if the appeal is granted but the decision upheld, or if the period for appeal expires without an appeal being filed (highly unlikely in this case, but always a possibility). 

The only way the stay remains permanently is if the district court’s decision is overruled, either as to the unconstitutionality of the individual mandate or as to the severability analysis.  But at that point a stay would be meaningless. 

So it’s incorrect to say that this decision is DOA simply because enforcement will be stayed pending appeal.

I am not saying its DOA because of the stay. I'm saying its DOA because the SC, with Roberts as CJ, will not repeal the ACA, in his view it must be done by Congress.....

[Oceander]

I am not saying its DOA because of the stay. I'm saying its DOA because the SC, with Roberts as CJ, will not repeal the ACA, in his view it must be done by Congress.....

I think you put way too much emphasis on dicta from Roberts.  He is not going to shirk his judicial duty to say a law is unconstitutional if that cannot be avoided. 

[the_doc]

I am not saying its DOA because of the stay. I'm saying its DOA because the SC, with Roberts as CJ, will not repeal the ACA, in his view it must be done by Congress.....

Roberts knows his ruling was crooked.  He'll want to keep the SCOTUS completely out of this pissing match.  The SCOTUS never repeals anything anyway.  (The Texas ruling may give him cover for doing the right thing, if he has to do so.)

[montanajoe]

I think you put way too much emphasis on dicta from Roberts.  He is not going to shirk his judicial duty to say a law is unconstitutional if that cannot be avoided.

I'm not putting any emphasis on dicta, Roberts has repeatedly and through his authored opinions on the SC said the SC should let the Legislative branch do its job, its not the place of the Court to repeal the law. If the SC were to take the case they would declare the newly passed provision unconstitutional  striking it and leaving Obamacare intact.

[mrclose]

Congress repealed the mandate, which was the source of the tax.

When Congress repealed the tax penalty last year, it eliminated the U.S. Supreme Court’s rationale for finding the ACA constitutional in 2012.

[Hoodat]

Roberts knows his ruling was crooked.  He'll want to keep the SCOTUS completely out of this pissing match.  The SCOTUS never repeals anything anyway.  (The Texas ruling may give him cover for doing the right thing, if he has to do so.)

I may be the only Roberts defender on this board.   Roberts didn't rule that Obamacare was Constitutional.  He ruled that as a tax, plaintiff hax no standing until after a tax goes into effect.  The essential difference between his position and that of Scalia, et al, is that he believes it is not the Court's job to save the people from stupid legislation.

[Oceander]

I may be the only Roberts defender on this board.   Roberts didn't rule that Obamacare was Constitutional.  He ruled that as a tax, plaintiff hax no standing until after a tax goes into effect.  The essential difference between his position and that of Scalia, et al, is that he believes it is not the Court's job to save the people from stupid legislation.

You’re not the only Roberts defender here. 

[ConstitutionRose]

Congress repealed the mandate, which was the source of the tax.

When Congress repealed the tax penalty last year, it eliminated the U.S. Supreme Court’s rationale for finding the ACA constitutional in 2012.

I agree with you.  I don't think Congress will take any action unless they are forced to do so and then it will be ugly.

[Oceander]

I'm not putting any emphasis on dicta, Roberts has repeatedly and through his authored opinions on the SC said the SC should let the Legislative branch do its job, its not the place of the Court to repeal the law. If the SC were to take the case they would declare the newly passed provision unconstitutional  striking it and leaving Obamacare intact.

I thought that was a core principle of conservative judicial doctrine:  a court does not try to act as a super-legislature, and only finds an act unconstitutional if it has no other choice.  Those are bedrock principles from the Court’s jurisprudence on unconstitutionality, so I’m not sure why you find it offensive in this case.

[Oceander]

Congress repealed the mandate, which was the source of the tax.

When Congress repealed the tax penalty last year, it eliminated the U.S. Supreme Court’s rationale for finding the ACA constitutional in 2012.

No, actually, Congress set the tax to $0, so there is now no tax to be triggered by the individual mandate.  Therefore, the individual mandate can no longer be justified as being merely a trigger for taxation. 

[the_doc]

I may be the only Roberts defender on this board.   Roberts didn't rule that Obamacare was Constitutional.  He ruled that as a tax, plaintiff hax no standing until after a tax goes into effect.  The essential difference between his position and that of Scalia, et al, is that he believes it is not the Court's job to save the people from stupid legislation.

Roberts's position was still indefensible.  The mandate was not a tax, but a sanction to enforce enrollment in a bad program.  (This was obviously a kind of tyranny.)  Even Obamacare's defendants declared that the mandate was not a tax but a sanction to make Obamacare work via high enrollment.  Amazingly, Roberts rejected their stipulation--as though it was not even in evidence (not a good idea)--and argued that since the mandate happened to generate revenues, it was certainly a "tax."  (So, getting fined for speeding is a "tax"--just because it generates revenues for the city or county?)

Besides, if the mandate was a tax, it had to originate in the House--whereas it didn't, as I recall.  And under federal law, the tax was supposed to undergo other time-sensitive review, which Roberts waived.

I would opine that Roberts majority decision was the single most stupid piece of judicial nonsense in modern history--even more stupid than (although not as consequential as) Roe v Wade.  I maintain that Scalia was correct.  Roberts lost his nerve.  He may have been the victim of Deep State extortion.  There is no other very good explanation for his insane ruling. 

Again, Scalia was right.  The SCOTUS is supposed to protect the Constitutional process, thereby automatically and most certainly protecting people from themselves--even if it means protecting them from the Constitution-hating tyrants they stupidly elected.  The SCOTUS obviously cannot pass the buck when a corrupt Congress passes a crooked bill.

[Oceander]

Roberts's position was still indefensible.  The mandate was not a tax, but a sanction to enforce enrollment in a bad program.  (This was obviously a kind of tyranny.)  Even Obamacare's defendants declared that the mandate was not a tax but a sanction to make Obamacare work via high enrollment.  Amazingly, Roberts rejected their stipulation--as though it was not even in evidence (not a good idea)--and argued that since the mandate happened to generate revenues, it was certainly a "tax."  (So, getting fined for speeding is a "tax"--just because it generates revenues for the city or county?)

Besides, if the mandate was a tax, it had to originate in the House--whereas didn't, as I recall.  And under federal law, the tax was supposed to undergo other time-sensitive review, which Roberts waived.

I would opine that Roberts majority decision was the single most stupid piece of judicial nonsense in modern history--even more stupid (though not as consequential) than Roe v Wade.  I maintain that Scalia was correct.  Roberts lost his nerve.  The SCOTUS is supposed to protect the Constitutional process, thereby automatically and most certainly protecting people from themselves--even if it means protecting them from the Constitution-hating tyrants they stupidly elected.

Roberts’ opinion was strong; the payment had, as he put it - and as much precedent focuses on - the essential attributes of a tax, and therefore the individual mandate was a trigger for an otherwise permissible tax. 

[the_doc]

Roberts’ opinion was strong; the payment had, as he put it - and as much precedent focuses on - the essential attributes of a tax, and therefore the individual mandate was a trigger for an otherwise permissible tax.

I beg to differ, very strenuously.  See my modified post.

[Oceander]

I beg to differ, very strenuously.  See my modified post.

Of course.  That’s the nature of the game: disagreement.  What’s the definition of a “tax”?

[the_doc]

@montanjoe
@mrclose

Of course.  That’s the nature of the game: disagreement.  What’s the definition of a “tax”?

Your question aside, I have a bigger concern:  If there is no longer a mandate "tax" in ACA (Version 2), on what grounds did the federal District judge rule that what's left of the ACA is no longer compliant with the Constitution?  This could be a problem we have overlooked in our excitement to hear the judge's decision.

As far as I was always concerned, the mandate masquerading as merely a tax rather than that for which even the Obama administration's lawyers sheepishly admitted that it was intended--i.e., as a device of coercion--was precisely what made it obviously unconstitutional.  The 5th Circuit may very well decide that ACA Version 2 is now merely a lousy insurance program that injures lots and lots of states, lots and lots of folks in the hoi polloi. That being the case, the 5th Circuit might not sustain the District judge's ruling.

In short, I would like to see what the Texas-based judge specifically says about the Constitutionality--or lack thereof--of ACA Version 2.  As I recall from the SCOTUS case, practically everything in the case against the ACA centered on the mandate as an illegal tax--purely coercive, purely punitive, even if incidentally revenue-generating (like a fine--which it most certainly was).  This is precisely why so many of us were incensed when Roberts wrote his asinine, gyrating decision about the mandate ("appropriation") within the law being Constitutionally proper (again, regardless of the Bill's origination in the Senate, as I recall--which could perhaps explain why the ACA's defense lawyers kept stipulating that the mandate was not a tax as far as they were concerned).   

The bottom-line problem is that the 5th Circuit might not believe that a lawsuit is the Constitutionally proper solution even if the plaintiff states seem--at first glance--to have standing to sue.  They might say that the 19 plaintiff states do not have standing before the Court if remedies sought from the Court are not the Constitutionally correct remedies.  (As I understand the law, the availability of a proper remedy from the Court is one of the crucial aspects of standing for a lawsuit by injured plaintiffs.  Suddenly, Roberts's comment about the stupidity of the hoi polloi has real merit.  But Roberts screwed up royally when he had the chance to do the right thing and lay the blame on a snaky, crooked Congress.  [So did our GOP legislators when they lost their nerve and refused to repeal ACA in its entirety. The whole thing is a mess of cowardly and hyper-political lawyers, I'm afraid.)

I'm actually hoping that Trump's decision not to oppose the District judge's decision will make the appeal to the Circuit Court moot even if the District judge's ruling was completely wrongheaded.  I don't know if amicus briefs by pro-ACA parties will count for anything if the government does not support the challenge to the District Court.  (Again, what a mess.)

[the_doc]

@montanajoe

Please notice from my post above that I now see where you were coming from.  It's ultimately an issue of dubious standing by the plaintiffs involving the fact that legal remedies in this case of ACA Version 2 belong to the Congress, not the Court.  In other words, when Roberts made his comment about the hoi polloi needing to elect better lawmakers, he was sort of right, but still dead wrong. 

The legal situation was different in ACA Version 1.  Roberts chose to ignore (dance around) the fact that the fine made ACA Version 1 Constitutionally illegal.  However, Roberts's Doctrine might now correctly apply to the case.  Maybe ACA Version 2 is just really bad lawmaking--which it certainly is, at the very least--and maybe the Courts should stay out of the fracas.

(I confess I should have seen this much in your post, Joe.)

***

Now, can the 5th Circuit overturn the District judge even if the federal government will not side against the judge?

[IsailedawayfromFR]

I guess you missed my earlier post where I pointed out the District Court's ruling is DOA because an appeal will immediately be filed, and granted, enjoining enforcement of judges order pending appeal...that's the way the judicial system works.

The SC will not repeal Obamacare, the CJ is a Conservative judge, and was confirmed on that basis. Many believe the conservative label means the same politically and judicially it does not.

As an aside, to me its bizarre that the GOP has ran for years on the platform of SC judges not making law from the bench. They ran and some might conclude they won control of all three branches of government in 2016 based on the pledge to repeal Obamacare. They had  control  but  were unable to repeal Obamacare so they expect the SC to do it...say what?  isn't that what they supposedly have ran against since... forever... but because with total control they could not get it done the SC is supposed to legislate from the bench...

The point you make still makes no sense.

You are very confident an appeal will be filed and enjoined by a higher court, and equally confident that the Supreme Court will not take it up.

Don't know how that confidence is exuding that some higher courts will act in one way but other higher courts will not.