//  6/25/18  //  Commentary

In a lengthy blog post about the Texas lawsuit that’s trying to bring down the ACA, Josh Blackman takes aim at an amicus brief filed by a bipartisan group of law professors (including me). The brief argues that the Affordable Care Act should stand, even if the penalty-free individual mandate is held unconstitutional. Blackman isn’t so sure. Although he “hasn’t made up his mind yet” about the case, “[t]his case presents a lot of really, really difficult issues that have been dismissed far too easily.”

No, it doesn’t.

When a court holds that a portion of a statute is unconstitutional, it has to decide what to do with the rest of the statute. Severability doctrine instructs courts to guess at what Congress would have done had it known about the constitutional defect. In most cases, that presents a tough counterfactual. Here, however, it doesn’t. As the amicus brief explains, “this guessing-game inquiry does not come into play where, as here, Congress itself has essentially eliminated the provision in question and left the rest of a statute standing. In such cases, congressional intent is clear—it is embodied in the text and substance of the statutory amendment itself.”

Blackman’s analysis doesn’t start with modern Supreme Court precedent, but with a law review article by James Durling and E. Garrett West. (That should be your first clue that something is very wrong.) Drawing on a 1929 case called Frost v. Corporate Commission of Oklahoma, Durling and West argue that the proper remedy for any constitutional isn’t the invalidation of all or part of the ACA, but instead “to strike down the repeal of the tax penalty.” New Jersey and the other blue states that have intervened in the Texas litigation make the same argument.

But Durling & West—and Blackman and New Jersey—misunderstand Frost’s application to this case. Frost is simple: it involved (1) a statute that was perfectly constitutional upon its adoption and (2) a later proviso that the Supreme Court held to be unconstitutional. “[S]ince that body sought to express its will by an amendment which, being unconstitutional, is a nullity and, therefore, powerless to work any change in the existing statute, that statute must stand as the only valid expression of the legislative intent.”

Frost would be on point if the 2017 Congress had acted unconstitutionally when it repealed the mandate penalty. But it didn’t. Congress is perfectly free to zero out a tax if it wishes to. Its action may have knocked the constitutional legs out from under the preexisting, $0-penalty individual mandate, but the penalty’s elimination is itself perfectly constitutional.

Nonetheless, Blackman says he agrees with Durling & West “in the abstract.” Oddly, however, he then dismisses their argument, saying that no one’s challenged the constitutionality of the penalty’s elimination.

Having ditched his opening gambit, Blackman turn to what he views as the key question: “The severability analysis, as always, turns on Congress’s intent. But which Congress: the Congress that enacted the ACA in 2010 or the Congress that enacted [eliminated the mandate] in 2017?”

With all due respect, this is not a hard question. A later Congress is perfectly free to amend a prior Congress’s handiwork. And that’s what happened here. Congress had a menu of options available to it, ranging from full repeal to nothing. What Congress chose to do was significant but modest: it repealed the mandate penalty and left the rest of the statute alone.

Blackman says that he’s “been unable to find any authority to support the proposition that the earlier findings of Congress in 2010 are irrelevant.” But why give the 2010 findings such totemic importance? They relate, after all, to a mandate backed by financial penalties (e.g., “if there were no requirement, many individuals would wait to purchase health insurance until they needed care”). They don’t speak to Congress’s views about whether a mandate lacking a financial penalty is similarly essential.

In any event, the authority that Blackman is looking for is right under nose. As the Supreme Court explained in Dorsey v. United States (and elsewhere):

[S]tatutes enacted by one Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute but as modified. And Congress remains free to express any such intention either expressly or by implication as it chooses.

Congress in 2010 said that the mandate penalty was indispensable; Congress in 2017 nonetheless dispensed with it. In so doing, Congress superseded its original finding. It’s a straightforward application of the last-in-time rule.

To conclude otherwise is to assign to the 2017 Congress a bizarre attitude toward the mandate. We know for certain that it believed it could safely ditch the mandate penalty and keep the rest of the ACA intact. We know because that’s what it did. Blackman (and Texas and the Justice Department) would nonetheless have us believe that the 2017 Congress would never have done that—indeed, that it would rather have invalidated all or part of the ACA, including the protections for preexisting conditions—had it known that a penalty-free mandate would no longer be constitutional.

In other words, the 2017 Congress would have had to hold two thoughts in its head: both that an enforceable mandate wasn’t essential to the ACA, but that an unenforceable mandate remained absolutely vital. No member of Congress expressed such a view, and for good reason: it’s daft.

For all of Blackman’s efforts, this case remains easy. Congress repealed the mandate because it thought it was bad policy and left the rest of the ACA standing. That’s all it did, and that’s all it should be taken to have done.


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