The question of whether the Individual Mandate can be separated from the rest of the ACA (or some parts of the ACA), and therefore whether the entire ACA is unconstitutional, parts of the ACA beyond the individual mandate are also constitutional, or only the individual mandate is now unonstitutional, have been sent back to the lower court for further analysis.
I read this punt on the severability question (which could bring down the entire Affordable Care Act if successful) as a way to push the issue past the 2020 elections, to a possible second Trump term https://t.co/nmZdwUOMGm
— Rick Hasen (@rickhasen) December 18, 2019
In other words, today's decision pushing the Affordable Care Act's potential demise past the 2020 elections should be seen as an in-kind donation from the 5th Circuit to the Republican Party
— Rick Hasen (@rickhasen) December 18, 2019
In short, they ruled that:
- 1. Yes, the case has merit no matter how stupid that is
- 2. Yes, the plaintiffs have standing to bring the case even though the elimination of the mandate penalty itself means there’s NO HARM TO THEM for ignoring the mandate
- 3. Yes, the individual mandate is unconstitutional because it’s no longer a tax…because the amount was reduced from $695 to $0…even though there’s plenty of federal taxes which continue to exist even if they’re never actually collected or they’re $0 for that year; however…
- 4. They’re kicking it back to the original district court judge, Reed O’Connor, to “provide additional analysis” of the ACA’s provisions to decide whether or not the mandate can be “severed” from the rest of the law.
Quotes from the decision:
Having concluded that the individual mandate is unconstitutional, we must next determine whether, or how much of, the rest of the ACA is severable from that constitutional defect. On this question, we remand to the district court to undertake two tasks: to explain with more precision what provisions of the post-2017 ACA are indeed inseverable from the individual mandate; and to consider the federal defendants’ newly-suggested relief of enjoining the enforcement only of those provisions that injure the plaintiffs or declaring the Act unconstitutional only as to the plaintiff states and the two individual plaintiffs.
…On the other hand, courts often try to abide by the medical practitioner’s maxim of “first, do no harm,”aiming “to limit the solution to the problem” by “refrain[ing] from invalidating more of the statute than is necessary.”… In fact, courts have a “duty” to “maintain the act in so far as it is valid” if it“ contains unobjectionable provisions separable from those found to be unconstitutional.”
“[i]n the absence of a severability clause . . . Congress’s silence is just that—silence—and does not raise a presumption against severability.”
In summary, then, this issue involves a challenging legal doctrine applied to an extensive, complex, and oft-amended statutory scheme. Alltogether, these observations highlight the need for a careful, granular approach to carrying out the inherently difficult task of severability analysis in the specific context of this case. We are not persuaded that the approach to the severability question set out in the district court opinion satisfies that need. The district court opinion does not explain with precision how particular portions of the ACA as it exists post-2017 rise or fall on the constitutionality of the individual mandate. Instead, the opinion focuses on the 2010 Congress’labeling of the individual mandate as “essential” to its goal of “creating effective health insurance markets,” 42 U.S.C. § 18091(2)(I), and then proceeds to designate the entire ACA inseverable. In using this approach, the opinion does not address the ACA’s provisions with specificity, nor does it discuss how the individual mandate fits within the post-2017 regulatory scheme of the ACA
It may still be that none of the ACA is severable from the individual mandate, even after this inquiry is concluded. It may be that all of the ACA is severable from the individual mandate. It may also be that some of the ACA is severable from the individual mandate, and some is not.46 But it is no small thing for unelected, life-tenured judges to declare duly enacted legislation passed by the elected representatives of the American people unconstitutional.The rule of law demands a careful, precise explanation of whether the provisions of the ACA are affected by the unconstitutionality of the individualm andate as it exists today.