In the early 1980s, a reality television show aired on the ABC network called “That’s Incredible.” It featured people with unusual talents who performed various stunts and even sometimes reenacted allegedly paranormal events. In other words, a forerunner of the Ripley’s Believe or Not version of Affordable Care Act litigation.

The current iteration of the latter long-running show resumes at the Supreme Court for oral argument this morning. In California v. Texas, the plaintiffs brought a lawsuit in federal district court in Texas in early 2018 that stretched one attenuated “literal” interpretation of the facts and law on top of several other ones, as far as they could go. Let’s go to the figurative videotape, or at least the DVR vault.

(1) We’re still standing (legally speaking)

Two individual plaintiffs supplied other accompanying state
government plaintiffs with barely enough standing to stay in court, by claiming
that they felt compelled by a penalty-free individual mandate to purchase
government-required versions of health insurance coverage. The latter
plaintiffs also tried to claim they suffered pocketbook injuries due to
increased costs from ACA reporting requirements and higher Medicaid and
employee health benefits expenses. The evidence base for all of the above is
sketchy, when it’s not wafer thin.

But it’s worked so far, partly because the individual
plaintiffs’ claims parrot the trace elements of what the Congressional Budget
Office (CBO) once imagined: “Many individuals and employers would comply with a
mandate, even in the absence of penalties, because they believe in abiding by
the nation’s laws.” CBO has grudgingly retreated from that theoretical
assumption over the last decade, but it has not yet fully abandoned it even
after Congress eliminated tax penalties for noncompliance with the mandate in
December 2017.

Can two wrong presumptions maintain a legal right to sue? We’ll see soon.

(2) The individual mandate is essential to the ACA’s overall plan for healthcare reform, except when it doesn’t need to be (anymore)

Once upon a time (in earlier ACA case fables), various groups of health policy and health law scholars insisted that the ACA’s individual mandate was absolutely essential to maintaining new and improved insurance markets and preventing various forms of adverse-selection death spirals of escalating costs and plummeting enrollment from occurring. (I even had to read those amici briefs, back in the day!). But now, never mind. It turns out that ACA coverage can do just fine without any mandate, as long as taxpayers make up the difference in increased premium subsidies. However, any actual apologies for being so arrogantly wrong appear not to have been filed yet.

(3) We’re not in 2010 anymore

ACA defenders claim that, in removing the tax penalty for
the individual mandate in 2017, Congress established a clear intent that the
latter had no further impact as a toothless regulatory “suggestion” and that
any views to the contrary in the Congress that passed the ACA back in 2010 are
beside the point. But this skirts around several other inconvenient legislative
facts. The 2017 provision was quite limited in its reach due to the procedural
constraints of budget reconciliation rules. The real intent behind eliminating
the mandate penalty was to exploit an artificial budget score (H/T CBO, again)
to cut taxes even deeper. “Inaction” by Congress on other fronts not only
failed to change existing 2010 ACA provisions still in effect as statutory law,
but it also implicitly upheld them all over again. Any constitutional
consequences appear to have been more a matter of legislative negligence than a
purposeful plan of action to speak to those issues. Of course, they could be
remedied tomorrow in various ways, if the votes are there to do so.

ACA opponents are trying to push back against this, but it’s out of step, 10 years later, with fully embedded interests and institutional arrangements, and different public opinion readings and election returns.

(4) Severability? Nothing to worry about.  

Here’s a more down-to-earth translation of severability
doctrine in this case: Congress always “intends” to keep as much of whatever
mess it created as future law, even it never could have passed it in such
altered form. And the Court prefers to keep its eyes wide shut as much as
possible when it, potentially, might otherwise come to ripping apart a complex
dog’s breakfast of a law. The ensuing legal rationalizations are just details.
The ACA never functioned very well when fully intact. Why worry about that now?

Yes, there’s technically more. It’s never over until … my next post.

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