@montanjoe
@mrclose
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.)
You have to read the opinion carefully, and realize that the individual mandate (the requirement to buy insurance), and the shared responsibility payment (the tax) are two distinct components of the ACA, and that the only reason the individual mandate survived was because it was the predicate on which imposition of the tax was made, or varied. So long as the tax was in there, the individual mandate could be justified as an adjunct to that tax, even though the individual mandate standing on its own could not survive.
That was under the original ACA. When Congress zeroed our the tax, it undercut the only justification for the individual mandate. Since that justification is now gone, the individual mandate cannot be saved as an adjunct to something else that is itself constitutional, which means that the individual mandate can no longer pass constitutional muster. So it must go.
That leaves the question of severability. The court’s argument on this is quite strong as a technical matter, because the democrats went to great lengths to clarify in the legislation itself how crucial and essential the mandate was to the entire law.
Since the mandate was crucial, but is now unconstitutional, there is a good argument that the entire law can no longer stand because it no longer contains one of the crucial elements that Congress enacted.
In other words, it’s one thing to take the hubcaps off the car: it’ll still run and function; but it’s another thing entirely to take the differential out: it will no longer function as a car.
However, severability is always a very political issue and thus it is entirely possible that an appeals court will uphold the unconstitutionality of the individual mandate, but overrule the severability decision. In which case, Obastardcare is still around to maul the economy.
