Together with Jonathan Adler, Abbe Gluck, and Ilya Somin, I've filed an amicus brief with the Fifth Circuit in Texas v. Azar. Those of you who've been closely following health-reform litigation know that Abbe and I often square up against Jonathan and Ilya. It's a testament to the outlandishness of the district court's decision that we've joined forces. Like our original district court filing, the brief focuses on severability.
In 2017, Congress zeroed out all the penalties the ACA had imposed for not satisfying the individual mandate. Yet it left everything else undisturbed, including the guaranteed-issue and community-rating provisions. That simple fact should be the beginning and end of the severability analysis. It was Congress, not a court, that made the mandate unenforceable. And when Congress did so, it left the rest of the scheme, including those two insurance reforms, in place. In other words, Congress in 2017 made the judgment that it wanted the insurance reforms and the rest of the ACA to remain even in the absence of an enforceable individual mandate.
Because Congress’s intent was explicitly and duly enacted into statutory law, consideration of whether the remaining parts of the law remain “fully operative”—an inquiry courts often use in severability analysis as a proxy for congressional intent—is unnecessary.
Nor does the district court's incessant focus on findings that Congress made about a mandate backed by financial penalties hold water.
The 2010 Congress believed that 2010’s penalty-backed mandate was necessary to induce a significant number of healthy people to purchase insurance, and thereby “significantly reduc[e] the number of the uninsured.” 42 U.S.C. § 18091(2)(E). But because the neutered mandate of 2017 lacks a penalty, it could not have been based on those earlier findings. They are thus irrelevant. The earlier findings have been overtaken by Congress’s developing views—based on years of experience under the statute—that the individual marketplaces created by the ACA can operate without penalizing Americans who decline to purchase health insurance.
At bottom, a toothless mandate is essential to nothing. A mandate with no enforcement mechanism cannot somehow be essential to the law as a whole. That is so regardless of the finer points of severability analysis or congressional intent. The district court’s conclusion makes no sense.
There are (at least!) two other notable amicus briefs in the case.
The first is from Sam Bray, Michael McConnell, and Kevin Walsh. In a terse 1,000 words, they argue—correctly, in my view—that "Congress has not vested the federal courts with statutory subject-matter jurisdiction to opine whether an unenforceable statutory provision is unconstitutional." In this, they sound many of the same themes that Jonathan Adler and yours truly sounded in arguing that plaintiffs lack standing under the Constitution. But Bray, McConnell, and Walsh hitch their argument not to Article III, but to the jurisdictional reach of the Declaratory Judgment Act.
The second is from the Republican attorneys general of Ohio and Montana. They agree that the mandate is unconstitutional, but they have no truck with the argument that all or part of the Affordable Care Act should be struck down. "At the same time that Congress made the mandate inoperative, it left in place the remainder of the Affordable Care Act. As a result, the application of the severability doctrine in this case requires no 'nebulous inquiry into hypothetical congressional intent.' ... To the contrary, the Court can see for itself what Congress wanted by looking to what it did." Their participation suggests deep fractures in the down-with-the-ACA-at-all-costs coalition.
So, by my count, the parties and amici have pressed at least four independent reasons for getting rid of this case. First, because plaintiffs lack standing. Second, because the courts lack jurisdiction under the Declaratory Judgment Act. Third, because there is no "mandate" and thus no constitutional problem (as Marty Lederman has rightly argued). And fourth, because even if there is a mandate and it's unconstitutional, it's fully severable.
This isn't a federal case. It's a choose-your-own-adventure book where all the adventures lead to the end of this misbegotten litigation.