Wednesday, February 13, 2019

Should Democrats seek to kill the anti-ACA lawsuit with legislation? Bagley v. Jost

Progressive legal opinion is divided with respect to how Democrats should fight the latest ridiculous suit seeking to have the ACA declared unconstitutional, Texas v. U.S., The suit was upheld in December by an extremist U.S. District Court judge in Texas, Reed O'Connor, who stayed the ruling pending appeal.

The question: should the Democratic House simply join the defense against the suit in court, which it has opted to do, or also pass legislation that would render the suit moot if it became law? Taking opposite sides are two progressive stalwarts of the ACA's legal wars.

The suit, brought by 20 Republican attorneys general,  argues in effect that when the Republican Congress reduced the ACA's individual mandate penalty to $0 in their 2017 tax cut bill, they repealed the law by accident. That's because when the Supreme Court upheld the constitutionality of the mandate -- and the whole law -- in 2012, it did so on grounds that while the mandate did exceed Congress's authority under the Commerce Clause, it is a constitutional exercise of Congress's taxing power. When the Republican Congress reduced the mandate penalty to zero, hey presto! -- no tax, no constitutionality. Further: when the ACA passed in 2010, the Democratic Congress published a finding that the mandate was inseverable from the rest of the law. Ergo,  the AGs argue, since the mandate is unconstitutional the whole law must fall now -- notwithstanding that the Republican Congress zeroed out the mandate without repealing any other part of the law.

The Trump administration has argued that the courts should strike down the mandate and the ACA's protections for people with pre-existing conditions (which the mandate is designed to make workable), but not the whole law.

A bill that would render the suit moot would be short and simple. Law professors Nicholas Bagley and Richard Primus of the University of Michigan argued last December that the House should pass a short bill that either a) sets the mandate penalty at $1 (restoring its "tax"), b) repeals the mandate, or c) declares the mandate severable from the rest of the law. Republicans would then have to choose either to help short-circuit the suit or once again show their willingness to obliterate protections for people with pre-existing conditions, codified in the ACA, that they profess to support.

House Democrats have rejected this course. Speaking to Vox's Dylan Scott, Timothy Jost, health law professor emeritus at Washington and Lee University, explains the logic:
Any proposed fixes will likely be partial, would open up the ACA to further amendment in the Senate, and would lend weight to plaintiff legislative history arguments...This case is winnable in the courts and should stay there.
Bagley: Put Republicans on the record

Jost and Bagley are probably the two most-quoted health law attorneys in American media, at least with respect to the ACA. Both are progressive; both have defended the law against the succession of suits thrown against it.  A difference of opinion between them with regard to strategy is noteworthy, so I queried both -- Bagley via Twitter and then email, Jost by phone.

With respect to whether Democrats would need to get bogged down in complex negotiations with Senate Republicans after passing a short bill as outlined above, Bagley responded, "Pass a clean bill, say there will be no negotiation, and demand a Senate vote. McConnell would probably refuse, but you can then cudgel him for refusing to protect people with preexisting conditions."

Could the legislative effort by Democrats increase the risk of an adverse ruling? While a conservative judge might cite it for ammunition, Bagley argued, "any judge who's on the fence about what the 2017 Republican Congress meant to do isn't doing law anymore. And his vote won't be changed one way or the other by what the 2019 Congress does."

Jost: Don't get Senate Republicans started

My conversation with Jost did not touch directly on the possibility that Democrats would past a two-sentence bill and then refuse to negotiate. Rather, Jost assumed that Senate Republicans would toy with the bill (which presumably they could do regardless of Democrats' response or lack thereof), and that their action could lend real ammunition to a conservative judge.

"The concern," Jost said, "is that anything the House could pass that might be reasonable, the senate would turn into a feel-good 'we're against pre-existing condition exclusions' bill, and that's going to be totally inadequate." Such a bill would not forestall striking down the whole ACA if the mandate is ruled unconstitutional -- "and you can't just reconstruct the ACA piece by piece."

The plaintiffs, Jost said,  might then argue, "'Congress admitted that they had rendered this unconstitutional because now they're trying to fix it,' and that argument might have some credibility before a conservative circuit judge."

So, I asked, legislative efforts could really make a material difference in the courts? Yes, Jost said. The logic: "Congress now recognizes that they did this, and that the 2010 finding [that the mandate is not severable from the whole ACA] still stands, and now they're trying to fix it but they haven't been able to. That says that the Senate has not acceded to this, which means that the Senate actually meant to do this [render the ACA unconstitutional]."

Risk vs. risk

Asked about this argument, Bagley responded: "I agree completely that this case is almost certainly going to be thrown out of court, and soon. But 'almost certainly' is not 'certainly.'" And I think Congress should worry more about the (small but real) risk that the ACA might be invalidated than the (trivial to nonexistent) risk that some conservative judge might see a bill as some kind of confession that the suit had merit."

What about the possibility that a conservative judge would find a pretext to uphold the suit, not in the Democratic House's bid for a quick fix, but in the Republican Senate's response? Any pretext is possible, Bagley allowed. But..."why would a principled judge think anything that happens in the 2019 Senate bears on what the 2017 Congress meant? I think that’s really implausible."

So there you have it. Should Democrats risk the slight possibility that a legislative effort could increase the suit's odds for success in pursuit of the even less likely possibility that Republicans would agree to a real legislative fix (as Bagley and Primus suggested they might)? Assuming no deal, is the chance to put Republicans on record once again refusing to safeguard the ACA's protections for people with pre-existing conditions (not to mention the Medicaid expansion, marketplace subsidies, hundreds of billions in Medicare savings and myriad other ACA measures) worth the risk of providing a pretext for conservative judges to strike the ACA down?

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