LogFAQs > #924481608

I read Judge O'Connor's opinion. Basically, it seems that this turns on the question: what was the intent of the 2017 Congress in passing the TCJA that eliminated the tax for not having health insurance?

Judge O'Connor says the 2017 Congress intended to eliminate the shared responsibility payment but keep the individual mandate and keep the text in the ACA that says the individual mandate is "essential." He goes to great pains to try to show that the shared responsibility payment and individual mandate are two different things. And the evidence for this is that the 2017 Congress changed the amount of the ACA tax to zero but left unchanged everything else in the ACA, including the provision setting forth the individual mandate.

Under that reading, the whole ACA must now fail because the individual mandate, which is now unconstitutional, remains "essential" to the rest.

It seems to me pretty obvious that the intent of the 2017 Congress was to eliminate the individual mandate. Why would they eliminate the only enforcement mechanism for it if they didn't intend to eliminate it? Without a tax/penalty, it says X is illegal but attaches absolutely no consequences to it. And if Congress intended to repeal the individual mandate but not the rest of Obamacare, then it is obviously no longer an essential portion of Obamacare and can be severed. There is no dispute that the rest of the act is constitutional under the Interstate Commerce Clause if there is no individual mandate attached to it.

I guess there is a case for Judge O'Connor's position because the text in the ACA saying that the individual mandate is "essential" remains in the text. So he can take the position that what Congress actually passed is what it intended, that even if 535 members of Congress all say "we meant X" if they actually unambiguously wrote "Y" then courts must rule based on "Y."
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