What will happen to Obamacare if ACB is confirmed? (user search)
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  What will happen to Obamacare if ACB is confirmed? (search mode)
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Question: ...
#1
The Court will rule in favor of retaining all or most of the law and protect people with pre-existing conditions
 
#2
The Court will rule in favor of repealing the law and leaving people with pre-existing conditions unprotected
 
#3
Something else (explain)
 
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Total Voters: 34

Author Topic: What will happen to Obamacare if ACB is confirmed?  (Read 973 times)
politicallefty
Junior Chimp
*****
Posts: 8,244
Ukraine


Political Matrix
E: -3.87, S: -9.22

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« on: October 17, 2020, 05:50:02 AM »

The Court really shouldn't even be taking this issue up. The standing issue is the most glaring issue here. In essence, the individual mandate is a sternly worded letter from the federal government (or not even that). If the federal government just randomly says to do something and there is no penalty or action at all on an individual, there is no controversy. If I only looked at the appeal itself, which includes a number of states and the House as intervenor-defendants, I would say the case was improvidently granted. But the real issue is that the district court should have never heard the case to begin with and the Fifth Circuit should have ruled accordingly. This case really makes a mockery of the issue of standing if it's heard on the merits, but I expect that it will.

Based on ACB's testimony & what we saw earlier this year re: severability in Seila Law v. CFPB, the Roberts Court won't be wrecking Obamacare anytime soon. I think we'll get a 5-4 ruling to grant the plaintiffs' standing & find the residual individual mandate unconstitutional (with Thomas, Alito, Gorsuch, Kavanaugh, & ACB in the majority + Roberts, Breyer, Sotomayor, & Kagan dissenting), but 7-2 (with only Thomas & Gorsuch dissenting) that it's severable from the rest of the law.

I've been sufficiently persuaded that Kavanaugh will vote for severability, but Alito definitely will not. It will not be 7-2. Alito voted with the dissent in 2012 to strike down the entire law. You're thinking of another Justice that votes in good faith based on objective principles. The closest ideology for Justice Alito that I can think of is "conservative Republican". I did see Barrett's comments on severability. That or Kavanaugh may save most of the law, but it does not mean other portions of the law are safe. I've said before and I still maintain that eliminating the individual mandate will likely take down guaranteed issue and community rating (i.e. protections for preexisting conditions, age, gender, etc.). That will have effectively gutted the Affordable Care Act.
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politicallefty
Junior Chimp
*****
Posts: 8,244
Ukraine


Political Matrix
E: -3.87, S: -9.22

P P
« Reply #1 on: October 24, 2020, 05:39:33 PM »

I mean, the ruling wouldn't eliminate the individual mandate so much as find a nominal $0 individual mandate unconstitutional, so all a new Democratic trifecta would have to do in order to totally & completely neuter the ruling is restore the mandate to a non-nominal amount. As for whether or not other portions of the law are safe from future cases, well, I think the Court will be packed under a Biden presidency before a new landmark ACA case can even be heard, & a 7-justice liberal majority on the newly 13-justice Court would obviously ensure that the ACA remains enshrined in law.

Maybe it's just me, but I'm still haunted by that dissent in NFIB v. Sebelius. It's like that brush with death you can't quite get out of your mind. The district court ruling struck down the entire law based on the finding that the individual mandate was unconstitutional (apparently finding that a $0 tax is not a tax). However, the dissent in the 2012 case was so petulant that they didn't even concur with Roberts that Congress exceeded its authority under the Commerce Clause. The Fifth Circuit did agree that the individual mandate was unconstitutional. Before the case was expedited to the Supreme Court, the Fifth Circuit did want the district court to explore severability.

I'll leave the issue of expanding the Court to other topics (although I do agree with you in principle). If the ball is back in a friendly Democratic Congress, there are far more options than simply reinstating a nominal tax. Congress can simply strike the individual mandate from the law entirely and amend the text of the ACA itself to include a severability provision to preclude any further nonsense. Guaranteed issue and community rating themselves are valid regulations under the Commerce Clause and only at risk due to the broader context of the law and the statute not including a severability provision. The real problem is that there hasn't been a friendly Congress to revise and amend the law, which is usually quite necessary for such a monumental piece of legislation.

I do have to wonder if Congress will start including severability provisions in more pieces of legislation, especially if you have those on the Court that don't believe in said principle. I do think Justice Gorsuch has his principles and I don't think he could ignore a severability provision written directly into the statute.
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