Let’s start with a fairly obvious caveat: Donald Trump is not the most sophisticated legal thinker on the planet. He routinely says things that are flat-out wrong or that completely undercut his own administration’s legal arguments.
Even the Supreme Court seems to view Trump as a loose cannon whose words should be discounted. The Court, in its travel ban case, treated Trump’s anti-Muslim rhetoric as largely irrelevant to the question of whether the purpose of the travel ban was to exclude Muslims.
Nevertheless, if the ordinary rules that apply to nearly every other litigant applied to Trump, this tweet would be a very big deal.
I stand stronger than anyone in protecting your Healthcare with Pre-Existing Conditions. I am honored to have terminated the very unfair, costly and unpopular individual mandate for you!— Donald J. Trump (@realDonaldTrump) January 13, 2020
That’s because Trump, in one tweet, essentially contradicted a central prong of the administration’s argument in its ongoing effort to convince the courts to repeal Obamacare in its entirety.
Let’s step back to explain how.
As you may recall, Trump signed a repeal of the tax penalty imposed by the Affordable Care Act’s individual mandate in December 2017. Before Trump signed this tax law, Obamacare required most Americans to either buy insurance or pay a tax penalty; the 2017 law removed the penalty, rendering the mandate effectively toothless.
That’s what Trump’s referring to in his tweet. But Trump’s claim that he “terminated” the mandate contradicts the legal arguments his own administration has made in court.
According to his own Department of Justice, the individual mandate, even without the penalty, still exists. They claim that the law still requires people to buy insurance, even though there’s no consequence for violating this requirement. For reasons that are fully explained below, this claim — that the unenforceable mandate is still a mandate — forms the backbone of the Trump administration’s legal argument against Obamacare.
But set aside the tweet. The administration’s confusion over its own Obamacare argument goes beyond Trump. Even more significant than Trump’s tweeting, the Justice Department recently filed a document in the Supreme Court that also undercuts the administration’s arguments in a very similar way.
What does all this mean? The justices may be able to dismiss the errant tweets of a president known for his rhetorical incontinence, but it should be harder for them to dismiss the position of the administration’s own Justice Department. That might be all the justices need to shoo away this latest challenge to Obamacare.
The Trump administration’s lawyers claim that Obamacare’s individual mandate is still in effect
Not long after the 2017 tax bill became law, a coalition of red states led by Texas filed a lawsuit claiming that the entire Affordable Care Act must be struck down. Although the Trump administration initially disagreed with some parts of this lawsuit, it eventually agreed with these red states that Obamacare should be repealed by judicial decree.
Texas v. United States rests on the assumption that, when Congress repealed a single provision of Obamacare in 2017, it actually dismantled the entire law.
As originally enacted, Obamacare requires most Americans who do not have health insurance to pay higher taxes — this is the law’s “individual mandate.” In NFIB v. Sebelius (2012), the Supreme Court famously upheld the individual mandate as a valid exercise of Congress’s power to levy taxes.
Importantly, NFIB also held that Obamacare imposes no “negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.” Someone who opts to pay the tax instead of buying insurance has “fully complied with the law.”
The tax law that Trump signed in 2017, meanwhile, reduced the amount of taxes owed by someone without insurance to zero dollars. Thus, as a practical matter, the mandate is now repealed. Under NFIB, anyone who pays a zero dollar tax has fully complied with the law.
Nevertheless, the Texas plaintiffs sued, claiming that the zeroed-out mandate is now unconstitutional, and that the proper remedy if it is unconstitutional is to toss out Obamacare in its entirety.
One of many problems with their legal argument, however, is that no federal court has jurisdiction to hear their case. The Constitution does not permit just anyone to walk into court and demand an opinion on whether a particular law is constitutional. Rather, anyone challenging a legal provision must show that they were injured in some way by that provision — a requirement known as “standing.”
Because the zeroed-out mandate imposes no obligation on anyone — again, the statute requires people to either buy health insurance or pay zero dollars in taxes — that means that literally no one has standing to challenge the neutered mandate.
Nevertheless, the Trump administration claims that the Texas litigation should move forward. They claim that, even though there is no penalty for failing to buy insurance, the zeroed-out mandate still “imposes a legal obligation to do so.”
This argument is wrong for a variety of reasons, one of which is that it directly contradicts NFIB. Again, the holding of NFIB was that anyone who pays the individual mandate’s tax has “fully complied with the law.” That means that anyone can meet their legal obligations by paying zero dollars.
So, to recap: The thrust of the Justice Department’s argument is that, even in the absence of a tax penalty, the mandate to buy insurance remains in full effect. But Trump’s tweet, claiming that he has “terminated the very unfair, costly and unpopular individual mandate,” obviously conflicts with the DOJ’s interpretation (setting aside whether Trump has any idea what he’s saying).
The Justice Department also contradicted itself in a recent court filing.
Here’s where it gets really interesting. The Solicitor General’s office also appears to agree with the thrust of Trump’s tweet and to disagree with the Justice Department’s prior claim that the ghost of the individual mandate still requires individuals to purchase health insurance.
Last month, two Republican members of the US Court of Appeals for the Fifth Circuit agreed with most of the Trump administration’s arguments against Obamacare — although it deferred for later the key question of whether the whole law must fall because one provision was repealed. A coalition of blue states and the House of Representatives asked the Supreme Court to hear this case. It also asked the Court to hear it on an expedited basis.
Solicitor General Noel Francisco, meanwhile, filed a document in the Supreme Court arguing that the Court should not expedite this case. But this document contains a surprising admission. The Fifth Circuit’s decision, he wrote, “creates no present, real-world emergency precisely because, as all parties agree, [the individual mandate] no longer subjects any individual to any concrete consequence.”
Recall that the lynchpin of the Texas plaintiffs’ argument is that the zeroed-out mandate is unconstitutional. Recall as well that no one has standing to challenge a federal law unless they can show that they were injured, in some way, by that law.
Yet here we have the Solicitor General of the United States — the Trump administration’s top Supreme Court advocate — admitting that the zeroed-out mandate does not subject “any individual to any concrete consequence.” That statement, which has the virtue of being correct, should be both a necessary and sufficient reason for the Supreme Court to dismiss this case for lack of standing.
How will the Court approach all this?
Chief Justice John Roberts famously broke with his fellow Republican justices in NFIB, voting to uphold most of Obamacare. He’s also the justice to watch in Texas. If Roberts agrees that this case should be dismissed, it’s difficult to imagine that the Court’s four liberal justices (and maybe even some of Roberts’s fellow conservatives) won’t join him.
There are good signs here for Obamacare supporters. Roberts has long argued that courts should be reluctant to decide cases brought by plaintiffs with marginal standing claims. “Standing,” he claimed in a 1993 article published in the Duke Law Journal, “is an apolitical limitation on judicial power.” Ignoring the requirement that everyone challenging a federal law must show they were injured by that law, Roberts argued, would be “an extraordinary adventure in judicial activism.”
Similarly, as a justice, he’s argued that the standing requirement ensures “that courts function as courts and not intrude on the politically accountable branches.” As Roberts wrote the first time he upheld Obamacare, “it is not our job to protect the people from the consequences of their political choices.”
In other words, if someone has a problem with Obamacare, they should lobby Congress to repeal it, not file a lawsuit rooted in a highly dubious theory of standing.
Thanks to Trump’s tweet and Francisco’s admission, the justices who want to shut this case down quickly now have additional ammunition.