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December 18, 2019

Fifth Circuit Rules That Obamacare's Individual Manadate is Unconstitutional; Remands Case to Lower Court to Determine if All of Obamacare Must Therefore Be Found Unconstitutional

If you've forgotten the backstory, Roberts ruled that Obamacare itself was Constitutional as part of the tax power of Congress, even though Congress explicitly denied it was a tax and deliberately crafted the individual mandate to not be scored as a tax.

Without a central part of the law being, supposedly, a "tax," it would have been found unconstitutional.

But now that "tax" has been reduced by law to zero, making it not a tax at all, but an unconstitutional command to citizens to buy a product they don't want:

Now that the shared responsibility payment amount is set at zero, the provision's saving construction is no longer available. The four central attributes that once saved the statute because it could be read as a tax no longer exist. Most fundamentally, the provision no longer yields the "essential feature of any tax" because it does not produce "at least some revenue for the Government."


Since then, the individual mandate has been repealed by Congress -- which means that the bullshit made up by Roberts to save Obamacare no longer exists.

In NFIB, the individual mandate--most naturally read as a command to purchase insurance--was saved from unconstitutionality because it could be read together with the shared responsibility payment as an option to purchase insurance or pay a tax. It could be read this way because the shared responsibility payment produced revenue. It no longer does so. Therefore, the most straightforward reading applies: the mandate is a command. Using that meaning, the individual mandate is unconstitutional.

The Fifth Circuit is avoiding making a determination on this point partly out of laziness and cowardice, but mostly because Appeals Courts are supposed to review decisions made by a lower court, not make them themselves (most of the time). As the Fifth Circuit is only now correcting the lower court's incorrect finding that the mandate is not unconstitutional, the lower court will now have to take that ruling and decide the answer to the next question posed.

If the lower court refused to even find that the individual mandate was unconstitutional, it will certainly make up some new explanation as to why Obamacare itself is not unconstitutional.

The Fifth Circuit will then get to review that decision.


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posted by Ace of Spades at 07:48 PM

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