Amicus Curiae Brief — California, et al., Petitioners v. Texas, et al.

Supreme Court briefApr 30, 2020

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No. 19-840

In the Supreme Court

of the United States

________________

CALIFORNIA, ET AL., PETITIONERS

TEXAS, ET AL., RESPONDENTS

_______________

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________

BRIEF OF AMICUS CURIAE DAVID BOYLE

IN SUPPORT OF PETITIONERS

_________________

David Boyle

Counsel of Record

P.O. Box 15143

Long Beach, CA 90815

dbo@boyleslaw.org

(734) 904-6132

TABLE OF CONTENTS

TABLE OF AUTHORITIES…..……………………….iv

AMICUS CURIAE STATEMENT OF INTEREST…1

SUMMARY OF ARGUMENT.....................................3

ARGUMENT……………………………………………...5

The Mandate Is Arguably Merely Precatory at

This Point, and Perhaps Not Worthy of Being

Struck Down. (And: Some “Conscience” Issues

of Respondents)…………………………………..5

A. Individual Respondents Could Possibly

Have Contacted the IRS and Said They

Are Paying the Zero Tax Penalty, Rather

Than Filing Suit Against the Act…………5

B. Refusal to Buy Insurance Could Be

Deemed a Martin Luther King-Style

Form of Civil Disobedience—Though

Without Financial Penalty………………..7

C. The Kennesaw, Georgia Gun-Purchase

Mandate: An American Precatory

Purchase Mandate Which Allows Anyone

to Opt Out of It Who Wants to Opt Out,

Sans Financial or Other Penalty……….10

D. Other Precatory Gun-Purchase

Mandates..………………………………...13

E. New Jersey’s 2008 Precatory Mandate to

Buy Health Insurance for Children……14

F. Even If the Mandate Is No Longer

Supported by a Tax Above Zero, That

May Not Mean That the Mandate Must

Be Overturned, If It Is Now Merely

Precatory……..……………………………17

II.

In Case the Mandate Is Struck Down: It

Should Be Held Severable from the Act As a

Whole, or Any Subparts of It, Such As

Community Rating and/or Guaranteed

Issue……………………………………………...18

A. The Mandate Is Not Absolutely

“Essential” to the Act or Any of Its

Subparts; Nor Has the Act Any

“Inseverability Clause”…………………..19

B. The Mandate Is Only One Funding

Mechanism Among Many for the Act, and

Is Quite Replaceable……………………...22

C. Pace the False Claim That the Mandate

Was Inseverable from Guaranteed Issue

and Community Rating, Obama

Administration Officials Backtracked on,

or Contradicted, That Claim…………….23

D. A Simple Way to Save the Act If the

Mandate Disappears, Is to Subsidize

Insurance Companies to the Amount the

Mandate Would Have Provided—Much as

the Government Massively Subsidizes

iii

Anti-COVID-19 Efforts…………………..26

The Court Did Not Definitively Find in

King v. Burwell That the Mandate Is

Absolutely Necessary to Guaranteed

Issue/Community Rating; and the Court

Should Clearly Find the Mandate NonNecessary………………………………….28

F. The Eleventh Circuit in 2011 Argued

Well for Severability…….……………….29

G. Chief Justice Rehnquist’s Placidyl

Addiction and His Need for Health

Care…...……………………………………30

H. One “Ripeness” Issue: If the Lack of a

Mandate Is Really Going to Put the Act

into a “Death Spiral”, the Court Can

Simply Let That Happen Gradually over

Time, Instead of Rushing to Destroy the

Act……..…………………………………..32

(ANTECONCLUSION)………………………….….33

CONCLUSION……………………………………….34

TABLE OF AUTHORITIES

CASES

Brady Cent. v. City of Nelson, 2:13-cv-00104-WCO

(N.D. Ga. 2013)…………………………………….14

Richard Butler v. City of Kennesaw, Ga. and Robert

Ruble, Chief of Police of Kennesaw, Ga., C-821143-A (N.D. Ga. 1982) (original documents

downloadable, as “Kennesaw PDF”, at http://

tinyurl.com/ButlerV-Kennesaw).......10-11, 12, 13

Dismissal Order (July 23, 1982)………………...12

Florida ex rel. Att’y Gen. v. U.S. Dep’t of Health &

Hum. Servs., 648 F.3d 1235 (11th Cir.

2011)….....................................................29-30, 33

Florida v. HHS (11-400) (cert. granted, 565 U.S.

1033 (2011))…………………………………...2, 19

HHS v. Florida (11-398) (cert. granted, 565 U.S.

1034 (2011))……………………………………….2

NFIB v. Sebelius (11-393) (cert. granted, 565

U.S. 1033 (2011))………………………...2, 19, 24

Kennedy v. Mendoza-Martinez, 372 U.S. 144

(1963)…………………………………………………2

King v. Burwell, 135 S. Ct. 2480 (2015)…4, 20, 28, 29

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519

(2012)…………………………………………….2, 29

CONSTITUTION

U.S. Const. art. 1, § 8, cl. 3 (Commerce Cl.)………….2

STATUTES

42 U.S.C. § 18091(2)(I) (2010)………………………..19

Kennesaw, Ga. Code…………………………………...10

§ 1-8, “General penalty.” (undated)………..10, 11

§ 1-11 (the former Section 1-8), “General

penalty.”, possibly last revised 1986, available

at https://tinyurl.com/KennesawPenalty

Code..................................................................11

§ 34-21 (1982; last updated 2009), “Heads of

households to maintain firearms.”, available

at https://tinyurl.com/KennesawGun

Code…………………………………………..10, 13

§ (a)………………………………………………..10

§ (b)………………………………………………..11

Nelson, Ga. Code § 38-6, “Heads of households

to maintain firearms.” (Apr. 1, 2013; revised

Sept. 3, 2013), available at https://tinyurl.com/

NelsonGaGunCode.............................................14

§ 38-6(b)…………………………………………..14

N.J. Stat. Ann. § 26:15-2, “Coverage provided for

residents 18 years of age and younger; terms

defined.” (2008), available at, e.g., https://

tinyurl.com/NJPrecatoryKidsMandate……15, 17

Patient Prot. and Affordable Care Act (Pub. L. 111148, 124 Stat. 119 (2010), as amended by the

Health Care and Educ. Reconciliation Act of

2010, Pub. L. 111-152, 124 Stat. 1029 (2010) and

the Tax Cuts and Jobs Act of 2017, Pub. L. 115–

97, 131 Stat. 2054 (2017))………….1, and passim

§ 1501(b) (26 U.S.C. § 5000A)……..1, and passim

RULES

S. Ct. R. 37………………………………..………….1 n.1

OTHER AUTHORITIES

(The Internet links below were last visited April 29,

2020, or after. If a link does not work well in a

particular browser, another browser may be tried.

Shortened URL’s occasionally display a “preview”

requiring an additional click to reach the link.)

Bigfoot Gun Belts, Mandatory Gun Ownership – It’s

A Thing!, Gunbelts.com, Oct. 3, 2016, https://

gunbelts.com/blog/mandatory-gunownership/...........................................................14

vii

Br. of Amicus Curiae David Boyle, or Mot. for Leave

to Intervene, in Supp. of Ct.-Appointed Amicus

Curiae on the Issue of Severability, in NFIB v.

Sebelius and Florida v. HHS (11-393 and 11400) (Mar. 16, 2012), mot. denied, 566 U.S. 935

(Apr. 16, 2012), recons. denied, 567 U.S. 904

(June 11, 2012)……………………………………...2

H. Bartow Farr III, Br. for Ct.-Appointed Amicus

Curiae Supporting Complete Severability

(Severability) in 11-393 and 11-400, NFIB v.

Sebelius and Florida v. HHS (Feb. 17, 2012),

available at https://tinyurl.com/FarrSeverability

Brief…………………...19, 20-21, 22-23, 24, 28, 33

The Commonwealth Fund, New Jersey’s Children’s

Mandate and Coverage Expansion for Parents

(undated, but apparently from 2008), https://

tinyurl.com/CommonwealthNJArticle.........15-17

Alan Cooperman, Sedative Withdrawal Made

Rehnquist Delusional in ‘81, Wash. Post, Jan. 5,

2007, available at https://tinyurl.com/Rehnquist

Placidyl................................................................31

The Daily Show with Jon Stewart, Exclusive –

Kathleen Sebelius Extended Interview Pt. 2, Jan.

23, 2012, https://tinyurl.com/DailyShow

Sebelius...............................................................26

Drizzt, Still the Law in Kennesaw, The Firing Line,

July 15, 2001, 5:51 p.m. (likely excerpting Jim

Galloway, Still the Law in Kennesaw, Atl. J.Const., July 15, 2001), https://tinyurl.com/

viii

KennesawFiringLine..........................................12

Omar Jimenez, In this American town, guns are

required by law, CNN, updated 2:22 p.m., Mar.

7, 2018, https://tinyurl.com/Kennesaw

2018................................................................11-12

Joint Mot. for Stay to Effectuate Settlement and

Proposed Order (Aug. 22, 2013), available at

https://tinyurl.com/BradyCenterMotion, in

Brady Center v. City of Nelson, supra………….14

Luke 6:31………………………………………………...32

Matthew 7:12……………………………………………32

Ed Morrissey, Video: Lack of severability in

ObamaCare a “colossal mistake”, Hot Air, Feb. 2,

2011, 2:15 p.m., https://tinyurl.com/HotAirTriple

Dare.....................................................................24

Mot. of David Boyle for Leave to Intervene as Resp’t

or Otherwise, and to Add Questions Presented,

in HHS v. Florida (11-398) (Mar. 16, 2012), mot.

denied, 566 U.S. 935 (Apr. 16, 2012), recons.

denied, 567 U.S. 904 (June 11, 2012)……………2

Myth of Orpheus and Eurydice (Classical Era)……33

NJ.gov, NJ Shared Responsibility Requirement,

last updated Nov. 21, 2019, https://tinyurl.com/

NJNonPrecatoryMandate………………………..15

Oral Arg. Tr. in 11-393, NFIB v. Sebelius (Mar. 28,

2012), available at https://tinyurl.com/11-393

OralArgumentTranscript………………..24-25, 26

Psalm 23 (King James Version)……………………...33

William Shakespeare, Much Ado About Nothing (c.

1598-99)…………………………………………...1, 9

Keith Wagstaff, 5 towns that have considered

making gun ownership mandatory, The Week,

Mar. 6, 2013, https://tinyurl.com/FiveGun

Towns.............................................................13-14

Wiktionary, essential, https://en.wiktionary.org/

wiki/essential (as of Apr. 16, 2020, at 14:48

GMT)………………………………………………..20

AMICUS CURIAE STATEMENT OF INTEREST

The present amicus curiae, David Boyle

(hereinafter, “Amicus”),1 has noted the present

attempt by Respondents to destroy the Patient

Protection and Affordable Care Act (Pub. L. 111-148,

124 Stat. 119 (2010), as amended by the Health Care

and Educ. Reconciliation Act of 2010, Pub. L. 111152, 124 Stat. 1029 (2010) and the Tax Cuts and

Jobs Act of 2017, Pub. L. 115–97, 131 Stat. 2054

(2017)), a.k.a. “PPACA” or “the Act”. That attempt

rests on the thin grounds that, essentially, the Act’s

“individual mandate” (Act § 1501(b) (26 U.S.C. §

5000A)) to buy unwanted health insurance, a.k.a.

“the Mandate”, because it’s presently less coercive

than before—a tax penalty of zero now—, has nearmagically become so illegal that the entire Act must

be destroyed. Cf. the title of William Shakespeare,

Much Ado About Nothing (c. 1598-99).

The Mandate is now largely an unenforceable

pious prayer that people buy health insurance: more

toothless than ruthless. Amicus does not like the

Mandate, but he is not fond of seeing mass deaths of

uninsured Americans either, so he writes this brief,

to let the Court and Nation avoid disaster.

Amicus may receive credibility here, in that he

sees good on both sides of the argument, instead of

being a partisan Democrat or Republican in this

1 No party or its counsel wrote or helped write this brief, or

gave money for it, see S. Ct. R. 37. Blanket permission to write

briefs is filed with the Court by the U.S. House of

Representatives Respondent, State Respondents, and Federal

Respondents. Individual Respondents, and Petitioners, sent

Amicus letters of consent to his brief.

case. He may even be the only litigant in the United

States who tried to 1) get rid of the Mandate, but 2)

also save the Act as a whole, at the same time. It

happens he has long experience in this very Court

dealing with the Mandate and Act; his maiden

efforts in this Court, in fact, concerned the initial

round of attacks on the Act in 2012. See, e.g., Mot. of

David Boyle for Leave to Intervene as Resp’t or

Otherwise, and to Add Questions Presented, in HHS

v. Florida (11-398) (Mar. 16, 2012), and Br. of

Amicus Curiae David Boyle, or Mot. for Leave to

Intervene, in Supp. of Ct.-Appointed Amicus Curiae

on the Issue of Severability, in NFIB v. Sebelius and

Florida v. HHS (11-393 and 11-400) (Mar. 16, 2012).

While the motions were denied (Apr. 16, 2012)—

and Amicus didn’t hugely expect he’d be allowed to

intervene—, Amicus was largely successful in the

substantive results he asked for, in that the Act was

upheld, and the Mandate was at least partially

curbed (overturned vis-à-vis the Commerce Clause,

U.S. Const. art. 1, § 8, cl. 3). See NFIB v. Sebelius,

567 U.S. 519 (2012), passim. Eight years later—how

time flies—, Amicus still welcomes the end of the

Mandate, but never at the cost of the whole

lifesaving Act itself.

Too, it is an extraordinarily bad time even to

contemplate ending the Act, since the COVID-19

plague hit America earlier this year. Cf. “[T]he

Constitution . . . . is not a suicide pact.” Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 160 (1963)

(Goldberg, J.). If there is any gray area at all about

the law here, it seems right for the Court to take the

dangerous medical conditions of present-day

America into account, lest the Court hurt the Nation

that the Court is supposed to serve.

…Perhaps the most novel—because relatively

little-known—legal point this brief will make is that

there have been, in the past few decades, various

precatory purchase mandates in America, including a

precatory mandate to buy health insurance, that

were not overturned in the courts or otherwise.

Petitioners’ arguments properly notice that the zerotax-penalty “Mandate” of today is hardly a mandate

at all. However, their arguments should profit

greatly from actual examples of precatory purchase

mandates, so Amicus offers examples.

“Precatory”: a non-mandatory mandate, a

jurisprudential oxymoron? The legal equivalent of a

harmless yapping chihuahua; a juridical April Fool’s

joke? The honorable Court will decide. But whether

the Mandate stays, or not, the Act should survive—

possibly helping various people who read this brief,

or their loved ones, survive longer—, as shall be

discussed below.

SUMMARY OF ARGUMENT

The argument proceeds in roughly two phases:

first, asserting that the Mandate may not

necessarily deserve to be overturned, if it is merely

precatory; and second, averring that if the Mandate

is overturned, it is fully severable from the Act.

If Individual Respondents feel morally obliged to

buy health insurance, they can, instead, send the

IRS the exact payment currently demanded by the

Mandate, or perform civil disobedience and refuse to

buy health insurance they clearly deem unfair or

illegal. Political means to overturn the Act may be

best.

Various purchase mandates in the Nation, e.g.

mandates to purchase guns, or to purchase health

insurance for children, are precatory, and thus give

legal precedent for keeping the Act’s Mandate in

existence, since it is precatory. (Even if a zero-tax

Mandate is not fully legally justified, the current

precatory version may not be worth striking down

more than other precatory purchase mandates are.)

If the Mandate is struck down, credible sources

like H. Bartow Farr and the Eleventh Circuit give

reason for holding the Mandate severable. E.g., the

Mandate may not be “inseverably” connected to

other portions of the Act, not being absolutely

“essential” to them; and there are alternate forms of

health-insurance funding available besides the

Mandate. So, the Mandate, while useful, is not

necessary.

The Obama Administration sometimes opined—

and correctly—that the Mandate was severable from

guaranteed issue and community rating.

The current COVID-19 crisis shows that copious

healthcare funds are available, including for the Act,

making the Mandate less needed.

The Court in King v. Burwell (“King”), 135 S. Ct.

2480 (2015), equivocated on the necessity of the

Mandate, but should now find it severable.

If Chief Justice Rehnquist once, famously, needed

serious medical care, perhaps the People need access

to it too.

If the Act is doomed sans the Mandate, why need

the Court take the trouble to destroy the Act at all?

Finally, in an age of plague, and of the Court’s

Members taking care of themselves, those Members

may also want to nurture the Act which can save

many people from destruction.

ARGUMENT

I. THE MANDATE IS ARGUABLY MERELY

PRECATORY AT THIS POINT, AND PERHAPS

NOT WORTHY OF BEING STRUCK DOWN.

(AND: SOME “CONSCIENCE” ISSUES OF

RESPONDENTS)

A. Individual Respondents Could Possibly

Have Contacted the IRS and Said They Are

Paying the Zero Tax Penalty, Rather Than

Filing Suit Against the Act

First off, some “conscience-related” issues:

Amicus understands that named plaintiffs/

Respondents Hurley and Nantz (“Individual

Respondents”) dislike the Mandate and feel it is

illegal. Amicus agrees with them, if on different

grounds from the ones they offer. That said, just

because Amicus disapproves of the Mandate, that

does not mean he thinks Individual or other

Respondents offer a reasonable argument for

overturning the Act, or even the Mandate.

The tax penalty having been reduced to zero, the

remaining “Mandate” can be considered merely

precatory now. But whether it is merely precatory or

not, there may be a way for Individual Respondents

legally to avoid the Mandate, if they have felt they

have some moral/legal obligation to obey the

Mandate even though the penalty was zeroed out.

To wit, Individual Respondents could have

written (or could still write) a letter to the Internal

Revenue Service, included in their tax return, with

words similar to these:

Dear IRS:

I refuse to buy health insurance

under the terms of “Obamacare” (the

Affordable Care Act). Since the offered

legal alternative is to pay a tax penalty,

and the current penalty is zero, I am

sending zero dollars with this letter,

which is a full payment of all I am

required under the law to pay.

Sincerely,

[first/last names]

That letter, supra, is only 60 words, but may help

fulfill all legal requirements to avoid having to

purchase insurance under the Act, by paying the

IRS, in a written communication, the full amount of

the current penalty (zero) for nonpurchase of health

insurance. —Problem solved, one suspects.

Alternative forms of that letter could be done:

e.g., there could be a check for zero dollars and cents

included with the letter. (Zero is the exact amount of

the penalty, after all…) Or if a check for zero is seen

as flippant or uncashable, then, say, a check for one

dollar, donated to the Government for debt

reduction, can be sent. That check would presumably

be cashable, and the letter would note that the check

also includes the zero amount of the tax penalty.

Thus, the IRS would cash a check including the full

amount of the current penalty: zero.

So, Individual Respondents could easily have

written that letter instead of filing suit, and maybe

saved themselves and others much trouble. (Though,

when the tax went to zero, perhaps all Americans

had effectively already paid their debt, in full?)

Amicus is not being facetious by presenting that

sample letter, in whatever variety, as a simple way

to solve Individual Respondents’ problems—if any

debt still exists. He thinks that letter is at least as

serious as Individual Respondents’ (and some

States’) contention that the Mandate tax penalty is

too low now, so that they are mysteriously more

oppressed than before, and have standing to file suit

and take yet another bite at the apple (after years of

previous attempts) for a chance to destroy the Act.

B. Refusal to Buy Insurance Could Be Deemed

a Martin Luther King-Style Form of Civil

Disobedience—Though Without Financial

Penalty

Of course, some persons may hypothetically not

deem Amicus’ proposed letter-to-the-IRS supra

morally sufficient to meet their sentiments. Some of

those persons may claim to feel moral offense, or

other injury, if they are obliged to buy health

insurance, since they feel they are morally obliged to

follow the law, even if they dislike it. Their assertion

may have some legitimacy, prima facie, but there are

additional considerations or options.

For example, if people feel a certain law is

immoral, they can always perform Martin Luther

King-type civil disobedience by not buying the

insurance. While the Act may not have per se evil

like racism (re MLK), it may have de facto evil for

some observers, since, just as conscientious people

may object to guns (see infra Sections I.C and I.D, re

gun-purchase mandates), other people may

conscientiously object to “Coercive Big-Government

Insurance Tyranny”. And Individual and State

Respondents seem to find the Act not just illegal but

also immoral, inefficient, and injurious to them or

their families, thus unjust.

Thus, people can avoid purchasing health

insurance but also follow moral principles, through

civil disobedience, instead of violating their

consciences. (Would Respondents claim that MLK

was immoral because he performed technicallyillegal civil disobedience?) And conveniently, there is

no financial penalty for failing to buy health

insurance, either.

If it were true that every law must be overturned

because someone feels obliged, “mandated”, to obey a

law she doesn’t like, where does it stop? Plenty of

employers, say, may dislike that they are obliged to

pay a minimum wage, even while they also feel

morally obliged to obey the law. That putative moral

disquietude should not be enough to overturn

minimum-wage laws, or maybe any other law,

including the Mandate, unless there is some

additional reason, e.g., a law violates religious or

racial-equality rights, etc.

So, Individual Respondents may have selfredressable moral injury. If they fulfill what that the

Act and Mandate ask them to, which is to offer the

IRS the full amount of the penalty, they should not

have to buy health insurance. But to protest that you

are being taxed too little (zero), seems a little protest

too much. Once more, per the Bard of Avon: “Much

ado about nothing.”

Respondents’ problem may largely be that they

dislike the Act, not that the financial penalty is now

too lenient. But while Individual or State

Respondents may complain that the Act causes them

various difficulties, financial or otherwise, the Act

may help other people or States, maybe more than

Respondents are allegedly hurt. Mere dissatisfaction

with the law is not sufficient reason to overturn it.

(If States allege that “injury” comes from the

Mandate, even sans penalty, allegedly persuading

more of the States’ citizens to receive health

insurance and thus burden the State fisc: then

virtually any part of the Act could give standing to

sue just because it may attract people to buy

insurance. E.g.: subsidies; exchanges; gestationaldiabetes-screening coverage; government efforts at

informing citizens about the Act; etc. It is a slippery

slope. But if the Mandate is merely persuasive,

precatory, then legal standing, or at least “damages”,

i.e., overturning the Mandate, is questionable.)

If Respondents want to destroy the Act, the

proper way is to marshal popular and political

support for overturning the Act in Congress, with a

cooperative President. This seems unlikely, though,

given considerable American popular support for

increased health-care access—especially while the

coronavirus rages.

Finally, Amicus understands the legal contention

that if the tax is zero, it raises no revenue, so may be

considered “not a tax”, so that, in turn, the Mandate

cannot be legally upheld. The next section of this

brief, about other precatory purchase mandates,

gives reasons why the “zero tax = no Mandate”

theory supra may be incorrect.

C. The Kennesaw, Georgia Gun-Purchase

Mandate: An American Precatory Purchase

Mandate Which Allows Anyone to Opt Out of It

Who Wants to Opt Out, Sans Financial or Other

Penalty

As previously foreshadowed, Amicus wants the

Court and the public to know that there is a long

history of precatory purchase mandates in this

country; this empirical knowledge fleshes out

Petitioners’ theories that the now-precatory nature

of the Mandate isolates the Mandate, and/or the

whole Act, from being overturned.

For example, there is an (in)famous “gun

mandate” in the municipal code of Kennesaw,

Georgia, Section 34-21 (last updated 2009), “Heads

of households to maintain firearms.”, available at

https://tinyurl.com/KennesawGunCode. Under this

originated-in-1982 law, every head of household

must have a gun and ammunition, see id. § (a). And

there were/are actual penalties for failure to do so:

up to a $200 fine, up to 60 days in jail, and/or up to

60 days doing work on the streets or public works, as

Section 1-8 of the Kennesaw Code noted in 1982, id.

The case of Richard Butler v. City of Kennesaw,

Georgia and Robert Ruble, Chief of Police of

Kennesaw, Georgia (“Butler v. Kennesaw” or

“Butler”), C-82-1143-A (N.D. Ga. 1982) (original

documents downloadable, as “Kennesaw PDF”, at

http://tinyurl.com/ButlerV-Kennesaw), offers Section

1-8, “General penalty.”, as part of “Exhibit ‘B’” of the

lawsuit, p. 28 of the PDF.

These days, the fine is up to $1000, see former

Section 1-8, supra, now Section 1-11, possibly last

revised 1986, available at the link

https://tinyurl.com/KennesawPenaltyCode. Those

penalties supra are serious penalties; in particular,

the jail time is more serious than any penalty in the

health care Act’s Mandate, which does not allow jail

time for violators, see id.

However, the Kennesaw law’s part (b) says,

Exempt from the effect of this

section are those heads of households

who suffer a physical or mental

disability which would prohibit them

from using such a firearm. Further

exempt from the effect of this section

are those heads of households who are

paupers or who conscientiously oppose

maintaining firearms as a result of

beliefs or religious doctrine, or persons

convicted of a felony.

Id. In particular, “[E]xempt . . . are those . . . who

conscientiously oppose maintaining firearms as a

result of beliefs[.]” Id. “Beliefs” is an extremely loose

category, so that the law is more an “Individual

Suggestion” than an “Individual Mandate”.

See, e.g., Omar Jimenez, In this American town,

guns are required by law, CNN, updated 2:22 p.m.,

Mar. 7, 2018, https://tinyurl.com/Kennesaw2018: “It

may be the law in Kennesaw to own a gun, but the

police department says it isn’t actually enforced. . . .

‘It was meant to be kind of a crime deterrent,’ said

Lt. Craig Graydon[.] ‘It was also more or less a

political statement[.’]” Id. But Kennesaw could easily

have passed a mere resolution suggesting gun

ownership; however, they passed an actual law.

See also, e.g., Drizzt, Still the Law in Kennesaw,

The Firing Line, July 15, 2001, 5:51 p.m. (likely

excerpting Jim Galloway, Still the Law in Kennesaw,

Atl. J.-Const., July 15, 2001), at the link

https://tinyurl.com/KennesawFiringLine, “[Under

the] revised ordinance[, g]un possession was the law

in Kennesaw, unless . . . you objected for any reason,

religious or otherwise. ‘The only people subject to the

law were the ones who agreed with it,’ said Richard

Butler, one of those who filed suit.” Id. (citation

omitted)

In Butler v. Kennesaw, the July 23, 1982

Dismissal Order (Kennesaw PDF at 2), based, see

id., on parties’ stipulation that Butler is exempt from

the gun mandate ordinance, does not happen to

judge the constitutionality/legality of the mandate.

But in any case, the Kennesaw gun-purchase

mandate has shown for decades that legally, there is

a history in America of a full, de facto unconditional

power of opt-out for a purchase mandate.

Thus, with that opt-out, the gun mandate is

precatory, and the law is not illegal, so far. Amicus

wishes such mandates were illegal, because he

dislikes purchase-mandate laws. However, such

mandates provide ample precedent for the Court to

uphold the Act’s own precatory Mandate.

By contrast with Butler, it is true there is no

stipulation by the Government with Respondents

that they do not have to obey the health-insurance

Mandate. However, what is the practical difference

between the Act’s Mandate, and the Kennesaw gun

mandate, if any? Both have no effective penalty.

Kennesaw agreed not to jail, fine, or draft into a

work gang, violators of the gun-purchase mandate.

More recently, the U.S. Congress set the Mandate

tax penalty at zero; and ever since NFIB v. Sebelius

(2012), the Commerce Clause does not allow jailing

violators of the health-insurance-purchase Mandate.

So, even without a stipulation, the Act’s Mandate

is quite precatory, and under Respondents’

questionable arguments, Amicus wonders if it should

be overturned.

(True, the Kennesaw gun mandate is persuasive

authority, not controlling authority, for this Court.

As well, Kennesaw or other State authorities have a

general “police power” that may possibly legitimate a

purchase mandate; while the federal government,

famously, has no such “police power”. Still, once

again, the Nation has a history of precatory

purchase mandates which have not been overturned,

which is a highly apposite consideration re the

health care Act’s precatory Mandate.

Amicus still believes, by the way, that there is

ample evidence for a facial overturning of the

Mandate; he just believes that that evidence is in

other theories than Respondents’.)

D. Other Precatory Gun-Purchase Mandates

And Kennesaw’s is not the only precatory gun

mandate. See, e.g., Keith Wagstaff, 5 towns that have

considered making gun ownership mandatory, The

Week, Mar. 6, 2013, at the following link,

https://tinyurl.com/FiveGunTowns (mentioning

Kennesaw gun mandate, and the similar Nelson,

Georgia and Virgin, Utah gun mandates); Bigfoot

Gun Belts, Mandatory Gun Ownership – It’s A

Thing!, Gunbelts.com, Oct. 3, 2016,

https://gunbelts.com/blog/mandatory-gun-ownership/

(mentioning Kennesaw, Nelson, and also Nucla,

Colorado gun-purchase mandates).

The Nelson, Georgia mandate, “Sec. 38-6. - Heads

of households to maintain firearms.” (Apr. 1, 2013;

revised Sept. 3, 2013), available at the link

https://tinyurl.com/NelsonGaGunCode, drew a Brady

Center to Prevent Gun Violence lawsuit, see, e.g.,

Brady Center v. City of Nelson, 2:13-cv-00104-WCO

(N.D. Ga. 2013), Joint Mot. for Stay to Effectuate

Settlement and Proposed Order (Aug. 22, 2013),

available at the following link,

https://tinyurl.com/BradyCenterMotion, including a

stipulation that the ordinance—which had already

exempted those “who conscientiously oppose

maintaining firearms as a result of beliefs or

religious doctrine”, § 38-6(b)—, would be modified to

say that the ordinance was unenforceable and sans

penalty, see Joint Mot, supra, passim. Once again, a

precatory mandate, not overturned but gelded, like

the PPACA’s Mandate.

E. New Jersey’s 2008 Precatory Mandate to

Buy Health Insurance for Children

Maybe even more on point than the gun

mandates supra, is an actual health-insurancepurchase mandate which is precatory, and has

existed for over a decade. The State of New Jersey in

2008 enacted a Mandate to buy health insurance for

minors, see N.J. Stat. Ann. § 26:15-2, “Coverage

provided for residents 18 years of age and younger;

terms defined.” (2008), available at, e.g.,

https://tinyurl.com/NJPrecatoryKidsMandate,

a. Beginning one year after the date of

enactment of this act, all residents of

this State 18 years of age and younger

shall obtain and maintain health care

coverage that provides hospital and

medical benefits. The coverage may be

provided through an employersponsored or individual health benefits

plan, the Medicaid program, NJ

FamilyCare Program, or the NJ

FamilyCare Advantage buy-in program.

[etc.]

Id. (Note that that Mandate is not identical to any

other New Jersey health insurance mandate, see,

e.g., NJ.gov, NJ Shared Responsibility Requirement,

“New Jersey Health Insurance Market Preservation

Act[:] Beginning January 1, 2019, New Jersey will

require its residents to maintain health insurance.

[etc.]”, last updated Nov. 21, 2019, at the link

https://tinyurl.com/NJNonPrecatoryMandate. This

brief will discuss only the 2008 precatory New Jersey

Mandate, which is still on the books, whether it has

been affected by any other mandate, or not.)

Further detail is in, e.g., The Commonwealth

Fund, New Jersey’s Children’s Mandate and

Coverage Expansion for Parents (undated, but

apparently from 2008), at the following link,

https://tinyurl.com/CommonwealthNJArticle,

In July [2008], New Jersey Governor

Jon Corzine signed into law

comprehensive health reform that helps

the state move toward universal access

to health coverage. A key feature is a

“Kids First” mandate: beginning July

2009, all state residents up to age 19

will be required to have health

coverage.

“This is a ‘soft’ mandate, with

carrots, not sticks,” says Suzanne

Esterman, spokeswoman for New

Jersey’s Department of Human

Services. There are currently no

penalties for non-compliance, but there

are many opportunities to obtain

affordable coverage. . . . Families will be

asked to indicate on their New Jersey

tax returns whether their dependents

have health insurance coverage. The

state will send applications and conduct

outreach to families identified as

having uninsured children who may be

eligible for Medicaid or NJ FamilyCare.

Task forces are currently developing

strategies to enhance outreach and

enrollment activities.

....

New Jersey’s health reform also

makes changes intended to make

individual health insurance more

affordable to young adults and to

increase insurer participation in the

small group market.

Id. The Garden State’s “carrots-not-sticks” health

insurance purchase mandate supra, sans any

penalty, see id., is very clearly a precatory mandate

par excellence. Even if there are constitutional or

legal questions about that Mandate, it still exists

today, so that if there were any challenges to it (and

Amicus knows of no lawsuits against that Mandate,

for example), they were not successful.

So, if that Mandate exists, then the question

arises, of why the PPACA Mandate cannot also be

allowed to exist, as long as it is precatory and the tax

penalty remains at zero. The New Jersey 2008

Mandate is not controlling precedent for this Court

(especially since it is not a court case), but it is

certainly persuasive. Arguendo, if the Court struck

down the Act’s precatory Mandate, at least for the

reasons Respondents give, the Court might be flying

in the face of American history (decades-old New

Jersey precatory health-insurance Mandate…not to

mention the gun mandates), and common sense.

F. Even If the Mandate Is No Longer Supported

by a Tax Above Zero, That May Not Mean That

the Mandate Must Be Overturned, If It Is Now

Merely Precatory

Again, Amicus understands the idea that a zero

tax may not legally undergird the Mandate. That

does not logically mean, though, that the Court

should take the trouble actually to eliminate Section

5000A, or any subpart of it.

True, the Mandate would look obsolete and outof-place, if it were no longer validated by a tax above

zero. However, if it were commonly understood that

the Mandate were now only precatory, a historical

record, that might argue for the Court not taking the

trouble actually to throw out the Mandate. Indeed,

the Court’s opinion in this case might powerfully

publicize that the “Mandate” is no longer mandatory,

so that the public would have little reason to fear the

Mandate any longer, in turn lessening any need to

eliminate the Mandate.

That said, Amicus is somewhat neutral about

whether the Court should allow a merely-precatory

Mandate to stand. He wants the Mandate to end,

but, once more, Respondents may not give sufficient

reason for that to happen.

If the Court ends the Mandate now, though,

Section 5000A should be held fully severable from

the Act, as will now be discussed.

II. IN CASE THE MANDATE IS STRUCK

DOWN: IT SHOULD BE HELD SEVERABLE

FROM THE ACT AS A WHOLE, OR ANY

SUBPARTS OF IT, SUCH AS COMMUNITY

RATING AND/OR GUARANTEED ISSUE

Amicus tries to be relatively reasonable about the

Act; he does not want the whole thing stricken down,

but has publicly agreed (e.g., in amicus briefs) that it

can be cut back where appropriate, e.g., the

Mandate, or needlessly-large punishment for nuns

who don’t want to provide contraceptives for

employees. (It is one thing, say, for religious

employers to pay a small fine, and/or to refund

employees some fair amount to compensate “lost

wages” from not receiving contraceptives as most

other employees do. But to punish religious

employers excessively, seems inappropriate.)

On that note, of being reasonable and balanced,

Amicus thinks it fair, if the Court destroys the

Mandate, at least to let the rest of the Act survive.

In supporting “full severability” of Mandate from

Act, Amicus will first focus on H. Bartow Farr III’s

magisterial “Brief for Court-Appointed Amicus

Curiae Supporting Complete Severability

(Severability)” in 11-393 and 11-400, NFIB v.

Sebelius and Florida v. HHS (Feb. 17, 2012),

available at the following link,

https://tinyurl.com/FarrSeverabilityBrief. Amicus

will add what he can here to what Farr said,

including, “If the Court determines that the

minimum coverage provision is unconstitutional, the

judgment . . . that the provision is severable from the

remainder of the . . . Act should be affirmed.” (Farr

Br. at 53); but Farr went so far in his analysis, that

the Court and public would do well to review it

carefully and repeatedly.

A. The Mandate Is Not Absolutely “Essential”

to the Act or Any of Its Subparts; Nor Has the

Act Any “Inseverability Clause”

Firstly: much, too much, has been made of the

word “essential” in, “The requirement [i.e., the

Mandate] is essential to creating effective health

insurance markets in which improved health

insurance products that are guaranteed issue and do

not exclude coverage of pre-existing conditions can

be sold.” 42 U.S.C. § 18091(2)(I) (2010). Even the

Court may have made too much of it: “As noted,

Congress found that the guaranteed issue and

community rating requirements would not work

without the coverage requirement. §18091(2)(I).”

King, supra at 4, 135 S. Ct. 2487 (Roberts, C.J.). But

“essential” does not always mean “absolutely

necessary”. See, e.g., Wiktionary, essential,

https://en.wiktionary.org/wiki/essential (as of Apr.

16, 2020, at 14:48 GMT): “2. Very important; of high

importance.” Id.

Using Farr’s own summary:

Petitioners (now joined by the

United States) also rely on . . . . 42

U.S.C.A. §§ 18091(a)(1), (2)(A)-(J) . . . .

but those findings are of limited value

on the question of severability. [T]he

findings, by their terms, are aimed at a

very different question: whether the

minimum coverage provision is so

“essential” to other provisions of the Act

(as well as to other laws) that it should

be regarded as part of a broader

regulatory scheme for purposes of

Commerce Clause analysis. . . . [I]t

would be entirely possible for Congress

to . . . hold . . . that, if the minimum

coverage provision were found

unconstitutional, the remaining

provisions of the Act should continue in

force. Indeed, that . . . seems

particularly likely for . . . . guaranteed

issue and community rating[,] that

were regarded as the principal means

for bringing new insureds into an

otherwise risk-based insurance market.

Farr Br. at 6. For further detail, see id. at, e.g., 2433.

Too, during the current COVID-19 crisis, there is

endless argument over what is an “essential”

business or not. This underlines that “essential” is

an equivocal term, that may mean “useful”, or

“absolutely necessary”, or other things.

As for an “inseverability clause”,

[I]t is worth noting that the Act does

not contain an inseverability clause,

either a general one or one limited to

the guaranteed issue and community

rating provisions.[Footnote 6: Neither

the United States nor petitioners

dispute that the guaranteed issue and

community rating provisions can still

be “fully operative as a law,” New York

[v. United States], 505 U.S. [144] at 186

[1992], in the relevant sense that there

is no textual dependency on the

minimum coverage provision. Cf.

[United States v.] Booker, 543 U.S. [220]

at 245 [2005] (striking down review

provision with no function other than to

enforce unconstitutional provision). See

also Note 1 supra. [noting that

invalidating Mandate will invalidate its

penalties as well]

Farr Br. at 29 & n.6. For further detail, see id. at,

e.g., 4-5, 30-31.

B. The Mandate Is Only One Funding

Mechanism Among Many for the Act, and Is

Quite Replaceable

The Mandate, truly, may be far less “essential”,

financially, than some would say:

Finally, petitioners and the United

States rely on an empirical argument of

sorts, asserting that, without the

minimum coverage provision, future

health insurance markets would be

severely distorted by adverse selection,

resulting in a potential “death spiral”

that Congress would have sought to

avoid. But the Congressional Budget

Office has recognized that the Act

contains a number of provisions that

“would tend to mitigate that adverse

selection.” . . . . For example, the Act

permits insurers to establish limited

enrollment periods each year to

discourage the uninsured from waiting

until they are sick before purchasing

insurance. . . . And, even more

importantly, the Act provides generous

subsidies to enable low-income people

— many of whom are young and in

relatively good health — to purchase

insurance. . . . As a consequence,

various estimates of premium increases

in an insurance market with continued

guaranteed issue and community

rating, but without the minimum

coverage provision, . . . . fall[] short of

the “death spiral” that petitioners and

the United States are warning about.

Petitioners and the United States

also point to the pre-Act experiences of

several States that adopted guaranteed

issue and community rating without a

coverage mandate[; but, inter alia,] it is

noteworthy that despite their

experiences, a number of the States in

question have elected not to do away

with guaranteed issue and community

rating, or to impose a mandate,

indicating that removing barriers to

coverage of the uninsured remains of

central importance. [etc.]

Farr Br. at 6-7 (citations omitted). For further detail,

see id. at, e.g., 33-44. Incidentally, Farr mentions,

supra, the mysterious support of the U.S., under the

pro-Act Obama Administration, for inseverability,

which deserves some brief analysis.

C. Pace the False Claim That the Mandate Was

Inseverable from Guaranteed Issue and

Community Rating, Obama Administration

Officials Backtracked on, or Contradicted,

That Claim

Amicus has wondered why Obama’s Solicitor

General arguably “played chicken” with the courts

by claiming that wiping out the Mandate would

mean exterminating guaranteed issue/community

rating. Amicus thinks that while that claim may not

have been “dishonest”, maybe it was “strategic

speculation”, designed to “guilt” the courts and Court

into letting the Mandate survive, even though

Amicus believes the Mandate was never necessary.

Cf. Ed Morrissey, Video: Lack of severability in

ObamaCare a “colossal mistake”, Hot Air, Feb. 2,

2011, 2:15 p.m., at the following link,

https://tinyurl.com/HotAirTripleDare,

Or was it [a colossal mistake]? Larry

O’Donnell blames Democrats for

rushing the ObamaCare bill to a vote

and forgetting to insert the severability

clause, but [law professor] Jonathan

Turley isn’t buying the post-Florida

verdict spin from Capitol Hill. He

suggests that Democrats deliberately

left out the severability clause as a

triple-dog dare to judges. Take out the

mandate, the strategy goes, and lose all

of the goodies in the rest of the bill!

Id. But sensible analysts like Amicus Farr did not

take the 2012 U.S. litigation position seriously, see

once more Farr Br., passim.

In fact, even during the 2012 oral arguments,

there was a flash of candor or good sense from the

Administration, see the oral argument in 11-393,

NFIB v. Sebelius (Mar. 28, 2012), available at

https://tinyurl.com/11-393OralArgumentTranscript:

Justice Antonin Scalia (RIP) said that since some

people had gotten insurance because of the Act, in

“[a]nticipation of …minimum coverage[,] that’s going

to bankrupt the insurance companies, if not the

States, unless this minimum coverage provision

comes into effect.” 11-393 Tr. at 49. Deputy Solicitor

General Edwin S. Kneedler replied, “There is no

reason to think [the end of the Mandate is] going to .

. . . bankrupt anyone. The costs will be set to cover

those -- to cover those amounts[.]” Id. Though

Needler may have said elsewhere in the oral

arguments that guaranteed issue and community

review would fall sans the Mandate, that notion is

contradicted by his quote just quoted, which stated

the obvious truth that alternate funding sources

could fund the Act even sans the Mandate.

And when Justice Elena Kagan questioned H.

Bartow Farr, “So, if you assume that, that all the

minimum coverage is, is a tool to make those

provisions work[:] if we know that something is just

a tool to make other provisions work, shouldn’t that

be the case in which those other provisions are

severed along with the tool?”, Tr. at 77, Farr

supported the same idea as Kneedler’s at p. 49:

MR. FARR: No, I don’t think so,

because there are -- there are many

other tools to make the same things

work. That’s I think the point.

And if one -- and the case that comes

to mind is New York v. The United

States, where the Court struck down

the “take title” provision but left other - two other incentives essentially in

place.

Even without the minimum coverage

provision, there will be a lot of other

incentives still to bring younger people

into the market and to keep them in the

market. [etc.]

Id. at 77. Indeed, an axiom that “You must abandon

a project if you happen to lack one tool designed for

that project” would be false, since, as Farr noted

supra, other tools may be available.

Finally, see the video clip, The Daily Show with

Jon Stewart, Exclusive - Kathleen Sebelius Extended

Interview Pt. 2, Jan. 23, 2012, at the following link,

https://tinyurl.com/DailyShowSebelius, at 7:12-7:28,

during which HHS Secretary Sebelius, after host Jon

Stewart asks what happens if the Court overturns

the Mandate (and maybe other mandates) but not

the rest of the Act, answers him,

I think we keep, we keep going. We

find ways to encourage people to

become enrolled and become insured,

and that’s really...the Mandate is the

fastest way to do it, and it just says

basically everybody’s got some

responsibility, but there are other ways

to encourage people to come in.

Id. That is an open confession, see id., from

Sebelius, maybe the best-placed person in the

world to know, that although the Mandate

would of course be helpful to the Act: other

viable funding mechanisms indeed exist; the

Act is indeed severable from the Mandate; the

Act would survive.

D. A Simple Way to Save the Act If the Mandate

Disappears, Is to Subsidize Insurance

Companies to the Amount the Mandate Would

Have Provided—Much as the Government

Massively Subsidizes Anti-COVID-19 Efforts

Too, the assertion that “the end of the Mandate

will kill the Act, by defunding health care” rings

hollow these days, for multiple reasons. First, there

is the simple math that if the vanishing of the

Mandate would cause a financial deficit by causing

fewer people to buy health insurance, the federal

government (and/or other entities, e.g., State

governments) can simply compensate insurance

companies in the amount of any deficit that occurs.

If a yearly deficit for insurers, lacking the Mandate,

equals “x”, then increased subsidies to insurers that

year can equal, or exceed, “x”.

That solution may seem overly simplistic, but

there is truth to it, Amicus suspects. The Mandate is

largely to get more people to buy health insurance,

preventing costs from ballooning out of control. So,

the Mandate is largely a funding mechanism, thus, a

fungible device that can be replaced by other funding

mechanisms.

And this is especially true in the age of multitrillion-dollar programs to combat the COVID-19

pandemic. While emergency situations like a

pandemic may justify larger public expenditure even

than the large public expenditure on the Act, the

lesson is still that the Government is capable of

copious financial aid for healthcare when people are

in need. (It is possible that over the decades, the Act

may save even more lives than the trillions of dollars

of expenditures against COVID-19, and maybe for

less money as well.) Finally, the Act may, obviously,

be needed more than usual during this pandemic (or

other emergency situations): if not for coronavirus

treatment per se (if the Government is giving

dedicated funding to that), then for multiple other

conditions which may be exacerbated by the current

strain on the health system.

E. The Court Did Not Definitively Find in King

v. Burwell That the Mandate Is Absolutely

Necessary to Guaranteed Issue/Community

Rating; and the Court Should Clearly Find the

Mandate Non-Necessary

By the way, some may try to claim that the King

Court found the Mandate to be utterly necessary if

guaranteed issue and community rating are to be

upheld. However, the Court did not definitively find

that; though if it had, that finding would be

incorrect.

Once again, the Court did say, “As noted,

Congress found that the guaranteed issue and

community rating requirements would not work

without the coverage requirement. §18091(2)(I).”

King at 2487. However, this is not necessarily true,

as per what Farr opined, see Br. at 6, 24-33.

Moreover, contrast that previous King quote to,

“The combination of no tax credits and an ineffective

coverage requirement could well push a State’s

individual insurance market into a death spiral.”

King at 2493 (Roberts, C.J.). The tentative language

“could well push”—as opposed to, say, “will definitely

force”—admits that even the pair of 1. no healthcare

subsidies, and 2. a severely weakened Mandate, only

may cause a death spiral. Not “will”, but “could”.

Thus, the Court did not definitively say that lack of a

Mandate would doom the Act, or even doom

guaranteed issue/community rating; since even 1. no

healthcare subsidies plus 2. a dessicated Mandate

was not deemed enough to deliver a knockout punch

to the Act, or maybe even any part of the Act.

So, when the Court then says a very different

thing, “Congress made the guaranteed issue and

community rating requirements applicable in every

State in the Nation. But those requirements only

work when combined with the coverage requirement

and the tax credits”, King at 2494 (Roberts, C.J.): not

only is “only” a misplaced modifier here, if the Court

was trying to say “requirements work only when …”,

but the Court contradicts what it said supra, one

page before, King at 2493, with the tentative “could

well push [etc.]”.

Thus, people seeking a clear “mandate” from the

King Court that the Mandate is absolutely

necessary, are searching in vain: the Court

equivocated, veered all over the place. So, the Court

should now make a definitive statement, following

simple math and common sense, and find the

Mandate non-necessary and severable.

F. The Eleventh Circuit in 2011 Argued Well for

Severability

Also deserving mention here is the appellate

opinion the Court reviewed in 2012 before producing

the NFIB v. Sebelius opinion, i.e., the Eleventh

Circuit opinion Florida v. HHS, 648 F.3d 1235 (Aug.

12, 2011). Following is a pertinent excerpt:

In light of the stand-alone nature of

hundreds of the Act’s provisions and

their manifest lack of connection to the

individual mandate, the plaintiffs have

not met the heavy burden needed to

rebut the presumption of severability . .

It is also telling that none of the

insurance reforms, including even

guaranteed issue and coverage of

preexisting conditions, contain any

cross-reference to the individual

mandate or make their implementation

dependent on the mandate’s continued

existence . . . .

Congress included other provisions

in the Act, apart from and independent

of the individual mandate, that also

serve to reduce the number of the

uninsured by encouraging or

facilitating persons (including the

healthy) to purchase insurance

coverage[.]

648 F.3d at 1323, 1324, 1325 (Dubina and Hull, JJ.).

Amicus sees no reason to disbelieve what Judges

Dubina and Hull say supra; and nine years after

their opinion, the existence of the Act for a decade

now itself, as per, e.g., stare decisis, argues against

overturning the Act, and disappointing the

expectations of tens of millions of people who might

not have decent health care without the Act.

G. Chief Justice Rehnquist’s Placidyl

Addiction and His Need for Health Care

Speaking of “disappointing expectations”: what

would make any appearance of compassionless, or

callous, behavior by the Court’s Members, re the Act,

look especially questionable is the fact that one of

their own badly needed help, comprehensive

healthcare, at one point: their Brother Justice,

William Rehnquist. Before he was Chief Justice,

Rehnquist suffered from addiction to the sleep drug

Placidyl for ten years, see, e.g., Alan Cooperman,

Sedative Withdrawal Made Rehnquist Delusional in

‘81, Wash. Post, Jan. 5, 2007, available at

https://tinyurl.com/RehnquistPlacidyl. Fortunately,

the Justice was able to get medical help, though his

withdrawal was harrowing:

One doctor said Rehnquist thought

he heard voices outside his hospital

room plotting against him and had

“bizarre ideas and outrageous

thoughts,” including imagining “a CIA

plot against him” and “seeming to see

the design patterns on the hospital

curtains change configuration.”

At one point, a doctor told the

investigators, Rehnquist went “to the

lobby in his pajamas in order to try to

escape.”

Id. Rehnquist must have been going through a kind

of living hell, but Amicus is pleased that he was able

to access quality healthcare and surface from the

darkness of drug addiction. However, many

Americans, at least before the Act, have not been

able to access an equal level of healthcare to that of

Rehnquist, or maybe any healthcare at all beyond

the minimal. The Act is an attempt, even if flawed,

to improve the average American’s healthcare, since

not only Supreme Court Justices need healthcare. As

the Nazarene said, “Do onto others as you would

have them do unto you.” (Matthew 7:12, Luke 6:31)

H. One “Ripeness” Issue: If the Lack of a

Mandate Is Really Going to Put the Act into a

“Death Spiral”, the Court Can Simply Let That

Happen Gradually over Time, Instead of

Rushing to Destroy the Act

Finally, while there may not necessarily be a

“ripeness” problem with the standing-to-sue of

Respondents, there may be a ripeness issue with

possible solutions in this case. To wit, for the Court

to overturn the Act, when the disappearance of the

Mandate may “naturally” overturn the Act anyway,

would be putting the cart before the horse.

That is, Respondents, and many opponents of the

Act and Mandate, aver that without the Mandate,

health insurance will enter a death spiral. If that

dystopian projection is really true, though: then

what is the point of the Court’s overturning the Act,

when the Act is (hypothetically) “overturning” itself

already through “death-spiraling”? (Or are

opponents of the Act afraid that the Act might

actually work, and avoid destroying itself?)

This is especially true in that during the coming

years that the Act is (putatively) dying of its own

weight, it may still give some degree of help—maybe

even in a lifesaving dose—to those who have

insurance under the Act, so that even a “sinking” Act

may still save some lives. Thus, asserting that a

Mandate-less Act is absolutely doomed, may be a

self-defeating assertion, at least if the point of the

assertion is to move the Court to annihilate the Act

before the Act self-annihilates. If the Act is really

“ripe for self-destruction”, why does the Court even

need to act against the Act?

* * *

“Yea, though I walk through the valley of the

shadow of death, I will fear no evil: for thou art with

me; thy rod and thy staff they comfort me.” This

famous part of the 23rd Psalm (King James Version),

id., is apposite to this age of an American and

worldwide viral plague. The Court may have no rod

or staff—maybe a gavel or such—, but it can

certainly comfort Americans by not needlessly

destroying the health care Act, especially in an age

of random, terrible mass death stalking the land.

Of course, if there is no possible way, legally, to

save the Act, or any significant part of it (e.g.,

guaranteed issue), from complete destruction, then,

“it is what it is”. Amicus just has doubts that that

nightmare scenario should be the case. This is

especially true given all the reasoning Amicus has

employed supra, whether: existing precatory

purchase mandates; excerpts from the wisdom of

Farr and the Eleventh Circuit opinion; parsing of the

word “essential”; noting the replaceability, by

subsidy or otherwise, of monies that the Mandate’s

end might deny to health insurers; observing that a

truly “death-spiraling” Act can simply spiral

downward de façon solitaire without any extra push

from the Court; etc.

Amicus does not want anyone reading this brief,

Member of the Court or otherwise, to have to look

back in later years, like Orpheus looking back at his

wife receding irretrievably to the Underworld, and

wonder, Why was the Act gratuitously destroyed? or,

Did people needlessly suffer and die because of what

happened? If the Act has flaws, annoying or overly

taxing Respondents, the Act can be mended, not

ended. Indeed, nonpartisan or bipartisan good-faith

attempts to improve the Act, and keep improving it,

respecting both liberty and the general welfare,

appeal to Amicus; he hopes he is helping those

efforts with this brief.

And as a final note: a Court that takes safety

measures to protect its own lives from COVID-19,

through telephone oral arguments (which will

hopefully be as electric as live oral arguments),

might look inconsistent or cruel if it then dismantles

the Act which protects the People from morbidity

and mortality. (Incidentally, it could also look mean

or thoughtless if the Court fails to show sufficient,

yet Constitutional, compassion to voters who may

not want to get COVID-19 from having to commingle

in a voting line.) Even if the Court returns to normal

oral arguments by the time this case is heard—

“normal” being a beautiful and wistful word these

days—, Amicus may not be there in person, but this

written prayer (and others’ similar prayers) for relief

of the Nation from sickness and death will ideally be

remembered; not to mention the unwritten prayers

of those sick and vulnerable Americans who may not

ever speak to the Court by paper or voice, but still

desperately need the Court to spare the Act—and

many of those Americans—from death.

CONCLUSION

The Court should either: 1) hold the Mandate to

be merely precatory and still legally in existence; or,

2) if the Court overturns the Mandate, also hold the

Mandate to be fully severable from the Act. As

always, Amicus humbly thanks the Court for its time

and consideration.

April 30, 2020

Respectfully submitted,