//  6/7/18  //  Commentary

Earlier today, the Justice Department filed a document in a case about the Affordable Care Act that was so radical, and so self-evidently without merit, that career lawyers in that agency would not sign their names to it. In fact, the document is such a transparent embarrassment that three career lawyers involved in the case withdrew their appearance before it was filed, presumably to avoid the taint of being listed on a docket where it appeared. Reading the filing is enough to explain why none of them could stomach it. The document is not so much a brief as the establishing shots of a heist. The damage it will do to the Department of Justice as an institution is hard to assess at this early date. But while we are not naïve enough to believe that these lawyers will endure the slightest sanction, social or professional for doing this, we are unable to resist a few remarks on their work product, such as it is.

In the government’s brief, the Trump DOJ makes two arguments. (A) The individual mandate, which the Supreme Court upheld in NFIB v. Sebelius, is unconstitutional; and (B) because the mandate is unconstitutional, the most important provisions of the Affordable Care Act should also be struck down, on the ground that they are not severable from the now-unconstitutional mandate.

The first of these arguments is excruciatingly stupid, but has the complementary virtue of being irrelevant on its own. The argument goes something like this: NFIB upheld the individual mandate as an exercise of Congress’ taxing power, but a majority of the Court concluded that it was neither a valid regulation of interstate commerce or necessary and proper to making some other valid regulation effective. But the Republican tax bill of last year eliminated the tax penalty for not having insurance (technically, it set the penalty at “$0”), and so the taxing power can no longer sustain the command to buy insurance. So, the argument goes, the now-toothless “requirement” to purchase one of the basic necessities of modern life is unconstitutional. Voila! To this we say: Whatever. We’re law professors, and not even we can get worked up about the difference between “do it, or pay the price, which is zero” and “do what you want.”

The Trump administration, however, understands the low stakes of their principal argument perfectly well. Their real argument is (B): that if the now-toothless individual mandate is unconstitutional, then the Affordable Care Act’s “community rating” and “guaranteed issue” provisions should also be struck down. These are the provisions that prohibit discrimination on the basis of pre-existing conditions and require insurers to sell to anyone willing to pay the listed price for a policy. Other than the Medicaid expansion and a handful of popular insurance regulations like forbidding cost-sharing for preventive exams, these are the Affordable Care Act. It is not wrong to say, in other words, that the Justice Department is now arguing that the entire ACA is, more or less, unconstitutional.

You might wonder how in the world setting a tax penalty at $0 rather than $695 could possibly mean that the government cannot require health insurers to sell insurance at the same price to men and women, or to forbid different prices for people who have had cancer and people who have not. The administration’s argument is based on the doctrine of “severability,” which is designed to say what happens when a court says one part of a law is unconstitutional, but the law has many other parts. The general rule is, as DOJ acknowledges, one of congressional intent:  If Congress would have kept the other provisions without the unconstitutional one, then the provisions stay.  If Congress would not have enacted or kept the provisions without the unconstitutional one, then the provisions go.  In other words, the test is something like “what would Congress have wanted,” with the caveat that what Congress wants is best evidenced by what Congress says (in a statute itself)

If that exercise in reconstructing intent sounds conceptually hard, it’s because it is. But there are actually instances where severability doctrine is capable of generating clear answers to obvious questions. The easiest case—hard to imagine, but stay with us—would be if Congress actually passed a piece of legislation that eliminated, as a formal or practical matter, one provision of a law, but left the rest of that law in place. In that case, the reconstruction of Congressional intent would be straightforward: What Congress wanted was a law without that provision.

But that is exactly what Congress did in the tax bill, with respect to the Affordable Care Act. And that is what makes the Justice Department’s argument so transparently dishonest. The premise for DOJ’s argument in part (A) is that Congress repealed the mandate as it was enacted (by repealing the tax penalty for not complying with it). Yet its premise in part (B) is that the mandate is not severable from other provisions; in other words, that without the mandate, Congress would not have wanted the guarantee issue and community rating provisions.  But we know the opposite is true: Congress repealed the mandate, but kept the guarantee issue and community rating provisions.  There is no need to speculate what Congress might have wanted.

DOJ’s only two arguments to the contrary have the feel of a person who does not expect to be believed, but who understands that something must be said. Their first argument is that it would be a very bad idea to have the ACA without an individual mandate: that, they say, “would expose health insurers (and their customers) to unfettered adverse selection by individuals who can game the system by waiting until they are sick to purchase insurance.”  To support this conclusion, DOJ points to the legislative findings that Congress enacted as part of the Affordable Care Act, which describe the mandate as “essential” to the guarantee issue and community rating provisions.

Because the reply “no shit, assholes” would be indelicate and inappropriate, we will simply observe that while this is true, Congress knew it—and took the risk anyway. Everyone and their mother (and their mother’s mother, and their mother’s mother’s mother) warned Congress about the risk of adverse selection when Congress was considering the tax bill. See, for example, these articles. It was also in the Congressional Budget Office report.  Congress chose, nonetheless, to kick the legs out from under the mandate and risk a death spiral in the insurance market. Although that decision was profoundly unwise, and probably calculated to make the law fail, it is what Congress wanted, which is (recall) supposed to be the point of this severability exercise.  And it underscores that there is not a dime’s worth of difference between setting the penalty for failing to purchase health insurance at zero and “repealing the mandate”:  Both inject the same risk of adverse selection into the insurance market, because in either case, the penalty for not purchasing health insurance is, you guessed it, zero, and thus healthy people who are inclined to gamble would not purchase insurance.

DOJ’s second reply, which they consign to a footnote (encouragingly demonstrating that even these lawyers have some sense of shame), is even worse: they say that the tax bill is not a good guide to Congressional intent, because “Congress passed the [tax bill] by a majority vote under the restrictive reconciliation process.” Congress surely wanted to repeal the rest of the ACA, this suggests; they just (alas!) didn’t have the votes to do it using the procedures they established for their own chamber. This argument is, at its very best, a howling non-sequitur, but read more fairly, may represent the high-water mark of anti-democratic chutzpah in American legal briefs: “We all know that the leadership of the Republican party would be happy to see the Affordable Care Act repealed; we also all know they couldn’t actually get the votes together to do it. Here’s where you come in.”

All good heists must have a final twist, of course—something daring that is not revealed until it is in progress. So too here, where the Trump DOJ has one last treat in store. The market for health insurance in the United States must, the Justice Department’s respectable lawyers tell us, be destroyed, because that is what Congress would have wanted. But not just yet. Not until January 2019—after, in other words, the midterm elections. What Congress seems to have intended, in other words, is the destruction of a law most of its members will not vote to repeal—but only when the now-impoverished electorate’s power to punish those responsible will be at its absolute nadir. The audacity of that icing on this cake is so brazen as to, almost, be admirable.



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