Late last week, Judge Reed O’Connor, a former Republican Senate staffer with a history of poorly reasoned opinions striking down Democratic policies, struck down the entire Affordable Care Act. On Wednesday, one of the lawyers behind this suit attempted to defend O’Connor’s opinion. It did not go well.
The political-operative-turned-judge’s opinion is widely viewed as indefensible, even by many of O’Connor’s fellow Obamacare haters. The Wall Street Journal’s editorial board called O’Connor’s opinion a “blunder.” The Cato Institute’s Ilya Shapiro wrote that “this case just isn’t the silver bullet that will finally kill” Obamacare. Philip Klein, a conservative health care reporter and author of a book entitled Overcoming Obamacare, called O’Connor’s opinion “an assault on the rule of law.”
Yet, in an interview with Klein, Rob Henneke, a lawyer with the conservative Texas Public Policy Foundation who represents some of the plaintiffs in Texas v. United States, took the unpopular view that O’Connor’s opinion is defensible. In the process, however, Henneke winds up revealing that he — and O’Connor as well — lack a basic familiarity with one of the Supreme Court’s most famous decisions.
There is one mandate
Henneke’s legal argument, and O’Connor’s opinion, proceed in two steps. As originally enacted, the Affordable Care Act requires most Americans to either carry health insurance or pay higher income taxes. In NFIB v. Sebelius, the Supreme Court held that this provision of the law, popularly known as the “individual mandate,” is a valid exercise of Congress’ power to levy taxes.
Then, in 2017, the Trump tax bill effectively repealed this mandate by reducing the amount of taxes someone without insurance must pay to zero dollars. The first part of O’Connor’s opinion treats this repeal as a gotcha moment. If the mandate is constitutional solely because it functioned as a tax, it now must be unconstitutional because a zero dollar tax is no tax at all.
This first part of O’Connor’s opinion is simultaneously interesting and irrelevant. Who the hell cares if a legal provision which literally does nothing is constitutional?
It’s not until the second part of O’Connor’s opinion that he crosses the line into abject lawlessness. Having concluded that the deactivated mandate is unconstitutional, O’Connor then claims that the entirety of Obamacare must fall along with the nothingburger mandate. To get there, O’Connor pretends that the individual mandate is, in fact, two entirely different legal provisions.
To dive into the weeds a bit, the section of Obamacare laying out the individual mandate is divided into several subsections. Subsection (a) provides that most individuals “shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.” Subsection (b) requires individuals who do not have insurance coverage to pay “a penalty with respect to the individual in the amount determined under subsection (c).” Subsection (c) used to provide a formula setting the amount of this payment, but now provides that the amount is zero.
Because subsection (a) and subsection (b) are, well, different subsections, O’Connor claims that they establish two entirely different legal requirements. He labels subsection (a) the “Individual Mandate” and subsection (b) the “shared-responsibility payment.” Then he claims that the 2017 tax law only repealed the shared-responsibility payment, while leaving the individual mandate intact — even though the individual mandate literally does nothing without the shared-responsibility payment.
If you are confused after reading that last paragraph, don’t worry. You should be. O’Connor’s opinion splits a hair so fine you need an electron microscope to find it.
Gaslighting the Supreme Court
In any event, that brings us to Henneke’s defense of O’Connor. “It’s not that the individual mandate now becomes unconstitutional,” the conservative lawyer claims. “It’s that the judicial basis with which it was saved from being struck down in the first place has been eliminated. But the mandate itself has always been recognized by the Court as having constitutional deficiency.”
This claim is simply wrong — and not just wrong in the sense that most legal analysts disagree with Henneke’s interpretation of prior precedents. Henneke is wrong because the Supreme Court explicitly said the opposite in NFIB. The two sides in this case are not arguing over ambiguous text, they are arguing over whether a lower court can just outright ignore a clear statement by the Supreme Court of the United States.
“Under the mandate,” Chief Justice John Roberts wrote in NFIB, “if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes.” Thus, “the mandate is not a legal command to buy insurance.” It simply “makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.”
Crucially, the Court also held that “neither [Obamacare] nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.” Thus “if someone chooses to pay rather than obtain health insurance, they have fully complied with the law.”
The Supreme Court, in other words, explicitly rejected O’Connor’s claim that the “individual mandate” is somehow separate from the “shared-responsibility payment.” Likewise, Henneke is not telling the truth when he claims that the “mandate itself has always been recognized by the Court as having constitutional deficiency.”
The holding of NFIB is that the mandate is constitutional in its entirety, and that individuals comply with the mandate if they either obtain health insurance or pay the amount set by subsection (c) of the mandate. Under the Trump tax law, that amount is now zero dollars.
It is unclear whether Henneke (and O’Connor, for that matter) is lying about NFIB, or if he is simply unaware that his legal argument was explicitly rejected by the Supreme Court of the United States. In either event, Henneke’s interview with Klein unwittingly bolsters the many criticisms of O’Connor’s opinion.
It’s hard to defend a legal opinion when you don’t even know what the law says.