Amicus Curiae Brief — California, et al., Petitioners v. Texas, et al.
Supreme Court briefMay 13, 2020
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No. 19-840
In the Supreme Court of the United States
CALIFORNIA, ET AL., PETITIONERS
v.
TEXAS, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR PROFESSORS MICHAEL C. DORF
AND MARTIN S. LEDERMAN AS AMICI CURIAE
IN SUPPORT OF PETITIONERS ON QUESTION TWO
MARTIN S. LEDERMAN
600 New Jersey Ave. NW
Washington, DC 20001
MICHAEL C. DORF
247 Hughes Hall
Ithaca, NY 14853
RALIA E. POLECHRONIS
WILKINSON WALSH LLP
130 West 42nd St., Ste. 1402
New York, NY 10036
RAKESH N. KILARU
Counsel of Record
AMELIA I.P. FRENKEL
JENNA H. PAVELEC
CAITLIN G. CALLAHAN*
WILKINSON WALSH LLP
2001 M St. NW, 10th Floor
Washington, DC 20036
(202) 847-4000
rkilaru@wilkinsonwalsh.com
*
Admitted in New York and practicing law in the District of Columbia pending admission to the D.C. Bar under the supervision of
bar members pursuant to D.C. Court of Appeals Rule 49(c)(8).
TABLE OF CONTENTS
Page
Table of Authorities ............................................................. ii
Interest of Amici Curiae ...................................................... 1
Summary of Argument ........................................................ 2
Argument .............................................................................. 5
The 2017 Amendment to Section 5000A Does Not
Require Individuals to Maintain Minimum
Essential Health Insurance Coverage ......................... 5
A. NFIB Held that Subsections 5000A(a) And
5000A(b) Afford Individuals Two
Alternative Options For Compliance .................... 6
B. The Political Branches’ 2017 Amendment
Preserved This Court’s Choice-Conferring
Construction Of Section 5000A ............................. 12
1. Congress Did Not Alter The Provisions
This Court Construed In NFIB. ...................... 12
2. Congressional And Presidential Statements
And Understandings Uniformly Confirm
The Original Public Meaning Of The
Amendment To Section 5000A. ........................ 13
C. The Court of Appeals’ Construction Of
Section 5000A As Imposing An
Unconstitutional Mandate Is Indefensible.......... 20
1. The Court of Appeals’ Construction Ignores
The Text And Structure Of Section 5000A ..... 20
2. Congress Has The Constitutional Power To
Repeal Or Reduce Taxes And To Enact
Provisions Of Law That Have No Binding
Legal Effect ....................................................... 23
Conclusion ........................................................................... 31
(i)
ii
TABLE OF AUTHORITIES
Cases:
Page
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) ..................................................... 27
Dred Scott v. Sandford,
60 (19 How.) U.S. 393 (1857) ..................................... 30
Hawaii v. Office of Hawaiian Affairs,
556 U.S. 163 (2009) ..................................................... 28
Hooper v. California,
155 U.S. 648 (1895) ....................................................... 7
Jones v. United States,
529 U.S. 848 (2000) ..................................................... 30
King v. Burwell,
135 S. Ct. 2480 (2015) ........................................ passim
McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316 (1819) .................................... 26
National Federation of Independent
Business v. Sebelius,
567 U.S. 519 (2012) ............................................ passim
New York v. United States,
505 U.S. 144 (1992) ............................................. 4, 9, 24
Printz v. United States,
521 U.S. 898 (1997) ..................................................... 28
Rosado v. Wyman,
397 U.S. 397 (1970) ..................................................... 27
TC Heartland LLC v. Kraft Foods Grp.
Brands LLC,
137 S. Ct. 1514 (2017) ....................................... 3, 19, 20
iii
Cases—continued:
Page
Texas v. Johnson,
491 U.S. 397 (1989) ..................................................... 30
United States v. Comstock,
560 U.S. 126 (2010) ..................................................... 26
United States v. Eichman,
496 U.S. 310 (1990) ..................................................... 30
United States v. Reorganized CF&I
Fabricators of Utah, Inc.,
518 U. S. 213 (1996) .............................................. 11, 23
Constitutional provisions:
Article 1, § 8, Cl. 1 ................................................. passim
Article 1, § 8, Cl. 7 .......................................................... 26
Article 1, § 8, Cl. 18 ........................................................ 26
Article 1, § 9, Cl. 4 .......................................................... 11
Statutes and regulations:
26 U.S.C. § 5000A .................................................. passim
26 U.S.C. § 5000A(a) ............................................. passim
26 U.S.C. § 5000A(b) ........................................ 4, 6, 11, 23
26 U.S.C. § 5000A(c) .......................................... 12, 13, 20
26 U.S.C. § 5000A(e) .......................................... 21, 22, 23
26 U.S.C. § 5000A(f) ........................................................ 6,
42 U.S.C. § 292s(d) ......................................................... 29
iv
Statutes and regulations—continued:
Page
42 U.S.C. § 294a(k) ......................................................... 29
42 U.S.C. § 2000bb-3(a) ................................................. 27
42 U.S.C. § 2021c(a)(1)(A) ............................................... 9
42 U.S.C. § 18031(b)(1) .................................................. 25
42 U.S.C. § 18041(c)(1) ................................................... 25
42 U.S.C. § 18091(2)(I) ................................................... 29
Act of June 19, 1862, ch. 111, 12 Stat. 432 ................... 30
Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 (2010)
§ 1501(b), 124 Stat. 244 ..................................... passim
§ 1563(b), 124 Stat. 271 .............................................. 29
§ 2406, 124 Stat. 306 ................................................... 29
§ 2952(a)(2), 124 Stat. 344-45 .................................... 29
§ 4401(b), 124 Stat. 587 .............................................. 29
§ 5201(a)(2), 124 Stat. 606 ......................................... 29
§ 5403(a), 124 Stat. 648 ............................................. 29
§ 6801, 124 Stat. 804 ................................................... 29
§ 7001(b), 124 Stat. 804 ............................................. 29
§ 7002(f)(2), 124 Stat. 818. ......................................... 29
Resolution of Sept. 23, 1789, 1 Stat. 96 ........................ 28
Tax Cuts and Jobs Act,
Pub. L. No. 115-97, 131 Stat. 2053 (2017)
§ 11081, 131 Stat. 2092 ...................................... passim
Statements regarding legislation:
163 Cong. Rec. H9257 (Nov. 15, 2017) ......................... 17
15000A(b)63 Cong. Rec. H10147 (Dec. 18, 2017) ........ 17
v
Statements regarding legislation—continued:
Page
163 Cong. Rec. H10183 (Dec. 19, 2017) ........................ 16
163 Cong. Rec. S6975 (Nov. 2, 2017) ............................ 14
163 Cong. Rec. S7225 (Nov. 15, 2017) .......................... 15
163 Cong. Rec. S7319 (Nov. 27, 2017) .......................... 15
163 Cong. Rec. S7367 (Nov. 29, 2017) .......................... 15
163 Cong. Rec. S7507 (Nov. 30, 2017) .......................... 15
163 Cong. Rec. S7665 (Dec. 1, 2017)............................. 19
163 Cong. Rec. S7809 (Dec. 4, 2017)............................. 16
163 Cong. Rec. S7859 (Dec. 6, 2017)............................. 15
163 Cong. Rec. S8051 (Dec. 18, 2017) ........................... 16
163 Cong. Rec. S8073 (Dec. 20, 2017) ........................... 16
163 Cong. Rec. S8153 (Dec. 20, 2017) ........................... 16
164 Cong. Rec. H683 (Jan. 30, 2018) ............................ 18
164 Cong. Rec. S81 (Jan. 9, 2018) ................................. 16
164 Cong. Rec. S557 (Jan. 30, 2018) ............................. 18
Remarks by President Trump at Signing of H.R. 1,
Tax Cuts and Jobs Bill Act, and H.R. 1370
(Dec. 1, 2017)............................................................... 17
Remarks by President Trump at Signing of a
Proclamation in Honor of National Nurses
Day (May 6, 2020) ...................................................... 18
@realDonaldTrump, Twitter
(Nov. 1, 2017, 7:59 AM) .............................................. 14
@realDonaldTrump, Twitter
(Dec. 22, 2017, 2:11 PM) ............................................ 18
vi
Statements regarding legislation—continued:
Page
Staff of Joint Committee on Finance,
Description of the Chairman’s Modification to
the Chairman’s Mark of the Tax Cuts and
Jobs Act 11 (Nov. 14, 2017)................................. 14, 22
Miscellaneous:
Amicus Br. of 43 Senators,
Dep’t of Health & Human Servs. v. Florida,
No. 11-398 (Feb. 13, 2012) ......................................... 19
Michael C. Bender et al., Trump Cheers GOP Tax
Overhaul, Slams Democrats Who Opposed It,
Wall St. J. (Dec. 20, 2017) .......................................... 17
HHS Br. on the Anti-Injunction Act,
Dep’t of Health & Human Servs. v. Florida,
No. 11-398 (Feb. 6, 2012) ........................................... 22
Heather Long, The Final GOP Tax Bill Is
Complete. Here’s What Is In It.,
Wash. Post (Dec. 15, 2017) ........................................ 17
Peter Nicholas et al., Over Golf and an Airport
Chat, Trump and GOP Hashed Out a Historic
Tax Plan, Wall St. J. (Dec. 20, 2017) ....................... 14
Robert Pear, Without the Insurance Mandate,
Health Care’s Future May Be in Doubt,
N.Y. Times (Dec. 18, 2017) ........................................ 17
vii
Miscellaneous—continued:
Page
Michael Schmidt, Excerpts From Trump’s
Interview With The Times, N.Y. Times,
Dec. 28, 2017 ............................................................... 18
Tr. of Oral Arg.,
Dep’t of Health & Human Servs. v. Florida,
No. 11-398 (Mar. 26, 2012) ........................................... 8
In the Supreme Court of the United States
NO. 19-840
CALIFORNIA, ET AL., PETITIONERS
v.
TEXAS, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR FIFTH CIRCUIT
BRIEF FOR PROFESSORS MICHAEL C. DORF AND
MARTIN S. LEDERMAN AS AMICI CURIAE IN SUPPORT
OF PETITIONERS ON QUESTION TWO
INTEREST OF AMICI CURIAE
∗
Amici curiae are legal scholars who teach and write on
constitutional law, including the scope of congressional
power, and who have written on various issues related to
the interpretation of the Affordable Care Act.
Michael C. Dorf is the Robert S. Stevens Professor of
Law at Cornell Law School.
Martin S. Lederman is Professor from Practice at the
Georgetown University Law Center.
∗
Pursuant to Rule 37.6, amici curiae affirm that no counsel for a
party authored this brief in whole or in part and that no person other
than amici or their counsel has made any monetary contributions intended to fund the preparation or submission of this brief. All parties
have provided consent for the filing of this amicus brief.
(1)
2
SUMMARY OF ARGUMENT
According to Respondents and the court of appeals,
when the 115th Congress and President Trump enacted
the Tax Cuts and Jobs Act (TCJA) in 2017, they did something a majority of this Court concluded, just five years
earlier, that the federal government may not do: enact a
legal obligation, or “mandate,” that individuals maintain
health insurance. See National Federation of Independent Business v. Sebelius, 567 U.S. 519, 548-61, 575 (2012)
(NFIB) (opinion of Roberts, C.J.); see also id. at 649-61
(joint dissent).
If that conclusion about the effect of the TCJA is
wrong—if Congress’s discrete reduction of the amount of
the “shared responsibility payment” in 26 U.S.C. § 5000A
to $0 did not establish a statutory obligation to maintain
insurance—then the current version of Section 5000A is
constitutional, according to this Court’s holding in NFIB
respecting the original version of Section 5000A, see 567
U.S. at 574. And if Section 5000A, as amended, is constitutional, that resolves this case, and there is no occasion
for the Court to consider whether the remainder of the
Patient Protection and Affordable Care Act (ACA) is severable.
This Court often confronts difficult questions of statutory interpretation. Whether the 2017 Congress enacted
a mandate to obtain health insurance is not one of them:
Of course it didn’t.
The TCJA did not in any way alter the text of subsections 5000A(a) and (b), the provisions this Court construed in NFIB as affording “applicable individual[s]” a
choice between two alternative ways of complying with
the law, rather than as an obligation to buy insurance. Indeed, there is no evidence at all in the text of the TCJA
3
amendment, let alone a “relatively clear indication,” TC
Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S.
Ct. 1514, 1520 (2017), that Congress intended to overturn
this Court’s construction of Section 5000A.
Furthermore, there is no evidence that even a single
member of Congress who voted for the TCJA took issue
with NFIB’s conclusion that Congress lacks the power to
mandate maintenance of health insurance, let alone that
any of those legislators intended to impose such a mandate in the teeth of NFIB. Instead, the evidence is uncontroverted that all those members of Congress understood
that they were alleviating Section 5000A’s regulatory burden, rather than turning it into an unforgiving—and unconstitutional—mandate. That is also how President
Trump has understood, and publicly characterized, the
legislation from the day he signed it until now.
Nor is there any basis for concluding that Congress
inadvertently enacted an unconstitutional mandate, as
the Fifth Circuit appears to have presumed. According to
the court of appeals, when Congress reduced the amount
of Section 5000A’s “shared responsibility payment” to $0,
it meant that Congress was no longer exercising its authority “To lay and collect Taxes,” Art. I, § 8, cl. 1, see J.A.
419-20, and that, absent use of the tax power, “the only
logical conclusion under NFIB is to read the individual
mandate as a command,” id. at 423.
On this view, if Congress had lowered the “shared responsibility payment” amount to $0.01, rather than to $0,
Section 5000A would remain constitutional and this case
would be over. The legislature’s decision to go just one
cent further, however, purportedly spells the constitutional doom of Section 5000A—indeed, according to Respondents, that extra penny topples the entire edifice of
the Nation’s health-care system.
4
That result is not only counterintuitive, inconsistent
with this Court’s authoritative construction of Section
5000A, and contrary to the contemporaneous and uniform
understanding of the President and Congress. It also
rests upon a fundamentally flawed premise, for even if
subsection 5000A(b) is no longer an exercise of Congress’s
taxing authority, this Court’s construction of Section
5000A as lawfully affording individuals two options remains sound.
This Court’s constitutional holding in NFIB did not
depend upon the fact that Congress had exercised its
“Power To lay and collect Taxes,” Art. I, § 8, cl. 1, as such.
What mattered was that Congress had the constitutional
power to impose the second option Section 5000A offered
to covered individuals (making a payment), unlike the first
(buying insurance). The principal case on which this
Court relied in NFIB, New York v. United States, 505
U.S. 144 (1992), confirms that understanding, as does this
Court’s reading in King v. Burwell, 135 S. Ct. 2480 (2015),
of a different pair of choices Congress offered to the
States in the ACA itself. New York, NFIB, and King all
demonstrate that where Congress offers a party two options, one of which it could not impose directly, that binary
choice is constitutional as long as the second option is
something Congress has the independent authority to
prescribe.
Congress has the constitutional power to repeal or reduce a previously imposed tax—as it did in 2017—just as
it may reduce, repeal, or eliminate regulatory obligations
or other exercises of its Article I authorities. And, contrary to Respondents’ contention, even if this reading of
Section 5000A were to render it a “nonbinding” provision
of law, it would remain constitutional, because Congress
does not need to rely on a particular enumerated power to
5
enact provisions of laws without any binding legal effect,
as it regularly does.
Because Congress may offer individuals a choice between buying insurance and doing nothing, and because
it’s undisputed that’s what the 2017 Congress intended to
accomplish, this Court must affirm that understanding of
Section 5000A. To conclude otherwise would turn the constitutional avoidance canon on its head—to insist, in effect, that the political branches brazenly enacted a law
that they and a majority of this Court considered to be
beyond the federal Government’s power to enact. Nothing about the 2017 amendment requires such an astonishing and counterintuitive conclusion.
ARGUMENT
THE 2017 AMENDMENT TO SECTION 5000A DOES NOT
REQUIRE INDIVIDUALS TO MAINTAIN MINIMUM
ESSENTIAL HEALTH INSURANCE COVERAGE
All of the parties in this case agree on at least two important things: First, if the amended Section 5000A mandated individuals to maintain minimum essential
insurance, it would be unconstitutional and unenforceable
under NFIB. See NFIB, 567 U.S. at 575 (opinion of Roberts, C.J.); see also id. at 548-61; id. at 649-61 (joint dissent, agreeing with the Chief Justice on this proposition). 1
1
The members of the Court disagreed about whether that conclusion was necessary to the judgment in NFIB. Compare id. at 574-75
(Opinion of Roberts, C.J.) with id. at 623 & n.12 (Ginsburg, J.). There
is little doubt, however, that the Chief Justice’s opinion with respect
to Congress’s power to impose a “mandate” to purchase insurance is,
6
Second, if the amended Section 5000A does not impose
such a mandate, that’s the end of the case.
The 2017 Congress did not enact, and President
Trump did not approve, a mandate to maintain insurance.
That indisputable fact (in effect, an answer to the second
Question Presented) is sufficient to resolve this dispute.
A. NFIB Held That Subsections 5000A(a) And 5000A(b)
Afford Individuals Two Alternative Options For
Compliance.
As enacted by Congress in the ACA in 2010, Pub. L.
No. 111-148, § 1501(b), 124 Stat. 244, subsection (a) of Section 5000A provided—and continues to provide—that
“[a]n applicable individual shall for each month beginning
after 2013 ensure that the individual, and any dependent
of the individual who is an applicable individual, is covered
under minimum essential coverage for such month.” 2
Subsection 5000A(b)(1), in turn, titled “Shared Responsibility Payment,” provided—and continues to provide—that “[i]f a taxpayer who is an applicable individual,
or an applicable individual for whom the taxpayer is liable
under paragraph (3), fails to meet the requirement of subsection (a) for 1 or more months, then, except as provided
in subsection (e), there is hereby imposed on the taxpayer
for all practical purposes, precedential. More to the point, and as explained infra at Part B.2, there is no reason to believe anyone in the
political branches doubted this constitutional principle when they
considered amending Section 5000A in 2017.
2
“Minimum essential coverage” is defined in subsection 5000A(f).
7
a penalty with respect to such failures in the amount determined under subsection (c).” 3
Before NFIB, there were two ways to understand the
relationship between, and possible legal effect of, these
two conjoined subsections.
According to the dissenting Justices in NFIB, subsection (a) imposed a legal obligation to maintain health insurance, and subsection (b) merely prescribed the legal
sanction for failing to comply with that legal obligation.
See 567 U.S. at 661-69 (dissenting opinion).
The Court in NFIB, however, rejected this reading.
Instead, it construed subsections (a) and (b) to offer “applicable individuals” two distinct, alternative ways of complying with the statute: They “may lawfully forgo health
insurance and pay higher taxes, or buy health insurance
and pay lower taxes.” Id. at 574 n.11 (majority opinion)
(emphasis added); accord id. at 574 (imposition of the tax
in subsection (b) “nonetheless leaves an individual with a
lawful choice to do or not do a certain act, so long as he is
willing to pay a tax levied on that choice”).
The Chief Justice favored this second, choice-conferring reading of the interrelationship of subsections
5000A(a) and (b) in part because “ ‘every reasonable construction must be resorted to, in order to save a statute
from unconstitutionality,’ ” id. at 563 (opinion of Roberts,
C.J.) (quoting Hooper v. California, 155 U.S. 648, 657
(1895)). But that was not the only basis for the Court’s
3
The other two paragraphs of subsection (b) provide that the payment “shall be included with a taxpayer’s [tax] return” and specify
who makes the payment for dependents and individuals filing joint
returns.
8
holding that Section 5000A offers applicable individuals a
binary choice of methods for compliance with the statute.
The Court also relied on the fact that the Executive
Branch itself, tasked with enforcing the law, had “confirm[ed]” its view “that if someone chooses to pay rather
than obtain health insurance, they have fully complied
with the law,” id. at 568 (majority opinion). 4 And the
Court explained that such a reading reflected Congress’s
actual expectations, and avoided the absurd results that
would follow if “shall” were read to mean “must”:
[I]t is estimated that four million people
each year will choose to pay the IRS rather
than buy insurance . . . . We would expect
Congress to be troubled by that prospect if
such conduct were unlawful. That Congress
apparently regards such extensive failure
to comply with the mandate as tolerable
suggests that Congress did not think it was
creating four million outlaws. It suggests
instead that the shared responsibility payment merely imposes a tax citizens may
lawfully choose to pay in lieu of buying
health insurance.
Ibid.
The Court also invoked precedent for this choice-conferring reading. As the Court explained, this was not the
first time it had “rejected a similar [“shall” necessarily
4
See also Tr. Of Oral Arg. at 50, Dep’t of Health and Human Servs.
v. Florida, No. 11-398 (Mar. 26, 2012) (Solicitor General’s representation), https://perma.cc/WP52-JP2P.
9
means “must”] argument,” id., in a case where Congress
lacked the constitutional power to directly impose one
prong of a binary choice. In New York v. United States,
505 U.S. 144 (1992), the Court took the same approach
with respect to a provision of the Low-Level Radioactive
Waste Policy Amendments Act of 1985 stating that
“[e]ach State shall be responsible for providing . . . for the
disposal of . . . low-level radioactive waste.” 42 U.S.C.
§ 2021c(a)(1)(A).
In New York, the Court held that if this provision were
read as “a direct command from Congress,” 505 U.S. at
169, it would have been an unconstitutional “commandeer[ing]” of state governments “into the service of federal regulatory purposes.” Id. at 175; accord id. at 161.
The Court concluded, however, that the “shall” provision
should not be considered “alone and in isolation, as a command to the States independent of the remainder of the
Act,” but, rather, that the Act should be “[c]onstrued as a
whole” to afford States a series of choices, in which the
apparent directive to regulate for the disposal of radioactive waste would be “no more than an option which a State
may elect or eschew.” Id. at 170.
In particular, the New York Court construed the Act
to offer a State a series of three binary choices: “to choose
first between regulating pursuant to federal standards
and losing the right to a share of the Secretary of Energy’s escrow account; to choose second between regulating pursuant to federal standards and progressively
losing access to disposal sites in other States [that federal
law had previously guaranteed]; and to choose third between regulating pursuant to federal standards and taking title to the waste generated within the State.” Id. at
169.
The Court in New York then proceeded to assess
10
whether each of the alternative options afforded the
States, apart from regulating radioactive waste pursuant
to federal standards, was a proper exercise of Congress’s
constitutional authority. New York is best known for the
Court’s holding that the third “either/or” option was unconstitutional because Congress did not have the power to
impose either of its two alternatives—it could neither
“commandeer” a State to regulate waste nor require a
State to take title to the waste generated within its borders. Id. at 175-76.
Critically, however, the Court held that the “secondary” options in each of the other two binary choices Congress offered the States were constitutional.
The
alternative to compelled regulation in the first binary—
withdrawing a State’s access to a share of the Secretary
of Energy’s escrow account—was a constitutional exercise of Congress’s spending authority. Id. at 171-73. And
as to the second set of options, Congress could exercise its
power to regulate interstate commerce to deny wastegenerating entities in non-regulating States the privilege
federal law had previously afforded them of low-cost access to disposal sites in other States. Id. at 173-74. The
Court therefore held that the first and second sets of
choices in the 1985 Act were constitutionally permissible.
In NFIB, the Court treated subsection 5000A(a)’s
“shall . . . ensure . . . minimum essential coverage” language just as the Court in New York had construed the
“shall be responsible for providing . . . for the disposal
of . . . low-level radioactive waste” provision at issue in
that case—i.e., as prescribing one non-exclusive way that
“applicable individuals” could comply with the Act. Making the “shared responsibility payment” described in subsection (b), the Court agreed, was yet another, alternative
means of compliance: Individuals could “choose to pay in
11
lieu of buying health insurance.” 567 U.S. at 568 (emphasis added).
The Court’s conclusion that Section 5000A gave individuals a choice, however, did not fully resolve the constitutional question in NFIB. As in New York, the Court in
NFIB also assessed whether the subsection 5000A(b) option (requiring persons without qualifying insurance to
make the shared responsibility payment) was something
Congress had the constitutional authority to impose directly, in light of the Court’s conclusion that Congress
would lack the power to compel the subsection (a)
choice—the maintenance of qualifying insurance—standing alone. The Court concluded that imposing the “shared
responsibility payment” was a valid exercise of Congress’s “Power To lay and collect Taxes,” Art. I, § 8, cl. 1,
because it had all the indicia of a tax, see 567 U.S. at 56368; because it was not properly viewed as “ ‘punishment
for an unlawful act or omission,’ ” id. at 567 (quoting
United States v. Reorganized CF&I Fabricators of Utah,
Inc., 518 U. S. 213, 224 (1996)); and because the payment
was not a “direct tax” that Congress would have had to
apportion among the several States under Art. I, § 9, cl. 4,
id. at 570-71.
Because Congress had the constitutional authority to
require such a payment by covered individuals who chose
not to maintain health insurance, the Court concluded
that the “either/or” choice Section 5000A afforded such individuals was constitutional. Id. at 574. And three years
later, in King v. Burwell, this Court reaffirmed that Section 5000A “generally requires individuals to maintain
health insurance coverage or make a payment to the
IRS.” 135 S. Ct. at 2486.
That was the state of the law, and the authoritative
12
construction of Section 5000A, on the morning of December 22, 2017, just before the President signed the Tax
Cuts and Jobs Act.
B. The Political Branches’ 2017 Amendment Preserved
This Court’s Choice-Conferring Construction Of
Section 5000A.
Congress’s 2017 amendment to Section 5000A did not
repudiate or eliminate this Court’s choice-conferring construction of the statute.
1. Congress Did Not Alter The Provisions This Court
Construed In NFIB.
In the TCJA, Congress made a single, discrete amendment to Section 5000A. That amendment did not alter either subsection (a) or subsection (b), and thus did not in
the slightest way affect the language of the two provisions
this Court construed in NFIB as affording “applicable individuals” a choice between two alternative ways of complying with the law. The only thing the 2017 amendment
did was to make a simple change to subsection 5000A(c)—
the provision prescribing the “[a]mount” of the shared responsibility payment option.
Before Congress enacted the TCJA, that payment
amount was the greater of (i) $695 for an adult (subject to
a cost-of-living adjustment), or (ii) 2.5 percent of household income above a certain threshold. See NFIB, 567
U.S. at 539. The TCJA amendment changed “$695” to
“$0” and “2.5 percent” to “Zero percent,” effective as of
2019. See Pub. L. 115-97, Title I, § 11081, 131 Stat. 2092
13
(2017). 5
That is all the 2017 amendment did to the ACA (save
for a technical amendment to another, inapposite provision, see Pet. Br. 10 n.9). Congress made this simple, numerical change to subsection 5000A(c) fully aware that in
NFIB and in King this Court had twice construed the preceding two subsections—which Congress left unchanged—to offer covered individuals a choice of two
alternatives, only one of which was the maintenance of
“minimum essential” health insurance coverage.
Even if one looks only at the language of the 2017
amendment, then, it is clear that all Congress did was to
reduce (indeed, eliminate) the regulatory burden of Section 5000A, by offering individuals a choice of either maintaining qualifying insurance or paying $0, i.e., of doing
nothing. That is not a mandate to maintain health insurance—it is the exact opposite.
2. Congressional And Presidential Statements And
Understandings Uniformly Confirm The Original
Public Meaning Of The 2017 Amendment To Section 5000A.
All indicia of legislative and presidential intent and understandings confirm this choice-preserving reading of
the amendment to Section 5000A. Indeed, both the President and the proponents of the amendment consistently
and unequivocally touted it as a repeal of the “individual
mandate” that would make it easier for individuals to opt
not to purchase ACA-compliant insurance.
5
It also struck the subparagraph calculating the cost-of-living increase, Section 5000A(c)(3)(D), which became inapposite once the required payment was set at $0.
14
a. The Senate. On November 1, 2017, as Congress
was deliberating major tax reform legislation, President
Trump tweeted: “Wouldn’t it be great to Repeal the very
unfair and unpopular Individual Mandate in ObamaCare
and use those savings for further Tax Cuts.” @realDonaldTrump, Twitter (Nov. 1, 2017, 7:59 AM),
https://perma.cc/TE5C-LV5J. The President reportedly
got the idea from Senator Tom Cotton, 6 who went to the
Senate floor the next day to announce “a creative idea, a
novel idea—one that I think is gaining momentum in the
Senate and in the House. We can repeal the individual
mandate of ObamaCare” (which he characterized as
“[y]ou must buy the product of a private company for the
mere privilege of being an American citizen”). 163 Cong.
Rec. S6975, S6978 (Nov. 2, 2017). Two weeks later, the
Finance Committee’s proposed amendment to the House
bill included Senator Cotton’s proposal—which consisted
simply of “reduc[ing] to zero” the “amount of the individual shared responsibility payment.” Staff of Joint Comm.
on Taxation, 115th Cong., Description of the Chairman’s
Modification to the Chairman’s Mark of the Tax Cuts
and Jobs Act 11 (Nov. 14, 2017), https://perma.cc/MVE2N9P6 (“Finance Chairman’s Mark Description”). 7
6
See Peter Nicholas, et al., Over Golf and an Airport Chat, Trump
and GOP Hashed Out a Historic Tax Plan, Wall St. J. (Dec. 20, 2017),
https://perma.cc/8VXM-S3PH.
7
The bill “zeroed out” the shared responsibility payment rather
than formally repealing § 5000A altogether only because an internal
Senate rule effectively precluded resort to the latter method as part
15
In the debates preceding the Senate’s approval of the
bill on December 2, 2017, proponents consistently characterized the amendment as a repeal of the “mandate” that
would alleviate any pressure on Americans to purchase
insurance. Senator Capito, for example, explained that
“[b]y eliminating the individual mandate, we are simply
stopping penalizing and taxing people who either cannot
afford or decide not to buy health insurance plans. . . . If
you opt not to purchase, which I hope you would not, your
government shouldn't be taxing you . . . .” 163 Cong. Rec.
S7367, S7383 (Nov. 29, 2017) (statement of Sen. Capito). 8
Senators continued to describe their approved amendment that way as the two chambers prepared to vote on
the Conference Committee version of the bill, which included the Senate’s “zeroing out” amendment. Senator
Barrasso, for example, declared that “by repealing the
ObamaCare insurance mandate,” “Republicans in the
Senate” had “take[n] ObamaCare from being a mandatory program to being a voluntary program . . . . When
Republicans struck down this mandate, we gave people
back the freedom they had to decide for themselves and
to make their own choices.” 163 Cong. Rec. S7859, S7868
of this tax legislation. See Amici Health Care Policy Scholars Br. Part
II-B-2.
8
See also, e.g., 163 Cong. Rec. S7225, S7229 (Nov. 15, 2017) (statement of Sen. Cotton); id. at S7239 (statement of Sen. Lankford); id.
at S7240 (statement of Sen. Cassidy); 163 Cong. Rec. S7319, S7322
(Nov. 27, 2017) (statement of Sen. Cornyn); 163 Cong. Rec. S7367,
S7370-71 (Nov. 29, 2017) (statement of Sen. Hatch); 163 Cong. Rec.
S7507, S7542 (Nov. 30, 2017) (statement of Sen. Toomey).
16
(Dec. 6, 2017).
On the morning after the Senate approved the conference version of the bill—just before the House vote—Majority Leader McConnell confirmed that the Senate had
“accomplished something really remarkable . . . . We
voted to repeal ObamaCare’s individual mandate tax so
that low and middle-income families are not forced to purchase something they either don’t want or can’t afford.”
163 Cong. Rec. S8153, S8153 (Dec. 20, 2017) (emphasis
added). 9
b. The House. The universal understanding in the
House of Representatives likewise was that the amendment would “repeal” the so-called “individual mandate”
and guarantee that individuals would be free not to purchase qualifying insurance. As the Speaker of the House
declared, “[b]y repealing the individual mandate at the
heart of ObamaCare, we are giving back the freedom and
the flexibility to buy the healthcare that is right for you
and your family.” 163 Cong. Rec. H10183, H10212 (Dec.
9
Accord 163 Cong. Rec. S8051, S8051 (Dec. 18, 2017) (statement of
Sen. McConnell) (“repealing” the mandate “will give low- and middleclass families even more tax relief, along with the flexibility to make
their own healthcare decisions”); see also, e.g., 163 Cong. Rec. S7809,
S7811-12 (Dec. 4, 2017) (statement of Sen. Cornyn); 163 Cong. Rec.
S8073, S8098 (Dec. 19, 2017) (statement of Sen. Thune); id. at S8123
(statement of Sen. Young); id. at S8130 (statement of Sen. Sullivan);
163 Cong. Rec. S8153, S8168 (Dec. 20, 2017) (statement of Sen. Gardner); 164 Cong. Rec. S81, S82 (Jan. 9, 2018) (statement of Sen.
McConnell).
17
19, 2017) (statement of Rep. Ryan). 10
c. The President. President Trump had a similar understanding of the provision, which he proclaimed to the
Nation. When he signed the TCJA on December 22, 2017,
he declared that “now we’re overturning the individual
mandate.” Remarks by President Trump at Signing of
H.R. 1, Tax Cuts and Jobs Bill Act, and H.R. 1370 (Dec.
10
See also, e.g., 163 Cong. Rec. H9257, H9268 (Nov. 15, 2017) (statement of Rep. Harris) (“No American should ever be forced to purchase something that they don’t want. That is not freedom. That is
not the American way . . . . [I]t is time for Congress to repeal
ObamaCare’s individual forced mandate.”); 163 Cong. Rec. H10147,
H10176 (Dec. 18, 2017) (statement of Rep. Gohmert) (“[W]hat the repeal of the individual mandate is going to mean is that people can still
buy the insurance if they want to.”).
Because this was the uniform description of congressional proponents (and, for that matter, opponents of the amendment, too), it is
hardly surprising that the media consistently represented the amendment to the public in the same way. See, e.g., Heather Long, The Final GOP Tax Bill Is Complete. Here’s What Is In It., Wash. Post
(Dec. 15, 2017), https://perma.cc/5MF4-7V33 (“The individual health
insurance mandate goes away in 2019: Beginning in 2019, Americans
would no longer be required by law to buy health insurance (or pay a
penalty if they don’t).”); Robert Pear, Without the Insurance Mandate, Health Care’s Future May Be in Doubt, N.Y. Times (Dec. 18,
2017), https://perma.cc/L3EV-VM5A (“Remarkably, after the millions of words written by lawyers to attack and defend the mandate
in court, the tax bill wipes it out with just two sentences.”); Michael
C. Bender et al., Trump Cheers GOP Tax Overhaul, Slams Democrats Who Opposed It, Wall St. J. (Dec. 20, 2017),
https://perma.cc/SK5X-PCU8 (“Starting in 2019, the GOP plan also
includes a repeal of the Affordable Care Act’s mandate that most people get health insurance or pay a penalty, another GOP priority.”).
18
22, 2017), https://perma.cc/74LE-L492; see also @realDonaldTrump, Twitter (Dec. 22, 2017, 2:11 PM),
https://perma.cc/74Y9-KUKZ. A few days later, the President boasted in an interview with the New York Times
that “the individual mandate is the most unpopular thing
in Obamacare, and I got rid of it.” Michael Schmidt, Excerpts From Trump’s Interview With The Times, N.Y.
Times (Dec. 28, 2017), https://perma.cc/TCC7-B798. And
the next month, in his State of the Union address, President Trump declared that “[w]e repealed the core of the
disastrous Obamacare. The individual mandate is now
gone.” 164 Cong. Rec. H683, H727 (Jan. 30, 2018) (emphasis added). 11
That remains the President’s understanding to this
day. Just last week, in the very course of confirming that
the Department of Justice would defend the court of appeals’ judgment in this case, the President reiterated that
“we got rid of the individual mandate” so that “you don’t
have [to] buy health insurance at a ridiculous price for not
good health insurance.” Remarks by President Trump at
Signing of a Proclamation in Honor of National Nurses
Day (May 6, 2020), https://perma.cc/5VRE-ENZJ.
* * *
This evidence evinces an uncontradicted, unambiguous account of how the political branches uniformly understood and described the effect of the 2017 amendment.
11
See also 164 Cong. Rec. S557, S570 (Jan. 30, 2018) (statement of
Sen. Cornyn) (declaring, in anticipation of the State of the Union address, that the President’s “[f]irst and foremost” achievement in 2017
was that “he signed comprehensive tax reform into law,” emphasizing
that “it repealed the Obama-Care individual mandate, making the Affordable Care Act voluntary and not mandatory” (emphasis added)).
19
As far as amici are aware, neither the President nor any
member of Congress who voted for the TCJA took issue
with this Court’s holding in NFIB that the federal Government cannot mandate maintenance of health insurance. (Indeed, most of the Senators who voted to approve
the amendment, including the Majority Leader, had argued to this Court in NFIB that such a mandate would be
unconstitutional. See Amicus Br. of 43 Senators, Dep’t of
Health & Human Servs. v. Florida, No. 11-398 (Feb. 13,
12
2012), https://perma.cc/V9UN-YNL6. )
More importantly, there is no evidence that any member of Congress, let alone majorities of both Houses and
the President, intended to alter this Court’s choice-conferring construction of Section 5000A, or to impose a statutory mandate to purchase insurance in flagrant
disregard of the constitutional judgment of a majority of
the Justices of this Court. There certainly was nothing
approaching a “relatively clear indication of [an] intent”
to overturn that construction. TC Heartland, 137 S. Ct.
at 1520.
Amici recite the foregoing extensive and uncontradicted evidence not because legislators’ and the President’s statements necessarily determine how a statute
must be construed, but because such contemporaneous,
uniform understandings of the Congress and the President in this case confirm the original public understanding
12
See also 163 Cong. Rec. S7665, S7682 (Dec. 1, 2017) (statement
of Sen. McConnell) (“From its inception, I have opposed the individual mandate because it is simply wrong for the Federal Government
to require someone to purchase a particular product, particularly one
they do not want and cannot afford.”).
20
of the meaning of the amended law (if any such confirmation were needed)—namely, that it means exactly what
the text, when read in light of NFIB, says. All of these
congressional actors were—and the President remains—
obviously correct: The only reasonable reading of the
2017 Amendment is that it eliminated any coercive effect
of Section 5000A, rather than making that provision unconstitutionally coercive.
C. The Court of Appeals’ Construction Of Section 5000A
As Imposing An Unconstitutional Mandate Is
Indefensible.
Without considering any of the foregoing evidence, the
court of appeals held that by virtue of their single, simple
numerical substitution of “0” and “zero” in place of the
numbers “695” and “2.5” in subsection 5000A(c), Congress
and the President established—presumably inadvertently—a mandate to buy insurance. That account of the
2017 amendment is inconsistent with every relevant principle of statutory construction and would turn the constitutional avoidance canon on its head.
1. The Court Of Appeals’ Construction Ignores The
Text And Structure Of Section 5000A.
The court of appeals’ reading ignores the fact that in
NFIB, this Court had recently construed subsections
5000A(a) and (b) to establish two distinct choices (a reading it then reaffirmed in King v. Burwell); that Congress
did not in any way amend those two provisions; and that
Congress did not offer any sign, let alone a “relatively
clear indication of intent,” TC Heartland LLC, 137 S. Ct.
at 1520, to overturn this Court’s choice-conferring construction.
The Fifth Circuit’s construction also ignores how each
21
of the branches has construed a parallel penalty-limitation in Section 5000A and how that provision has been operating for several years. Subsection 5000A(e) expressly
exempts five categories of “applicable individuals,” see
§ 5000A(d)—i.e., persons who would otherwise be covered
by subsection (a)—from having to pay the “penalty” (i.e.,
the shared responsibility payment): (i) individuals who
cannot afford coverage; (ii) taxpayers with incomes below
the tax-filing threshold; (iii) members of Indian tribes;
(iv) individuals experiencing “short coverage gaps” in
health insurance; and (v) persons who received a “hardship” exemption from the Secretary of Health and Human
Services. See 26 U.S.C. § 5000A(e)(1)-(5); see also NFIB,
567 U.S. at 539-40. Many persons in those categories have
neither maintained the requisite levels of insurance nor
made any shared responsibility payments since Section 5000A become operative in 2014.
If, as the court of appeals insists, subsection 5000A(a)
must be read as imposing a legal mandate to maintain insurance in the absence of any provision for an alternative
payment, then those persons have been violating federal
law every month for more than six years. And, as this
Court explained in NFIB, their seemingly innocent conduct would thus expose them to “all the attendant consequences of being branded a criminal” other than fines and
imprisonment, including “deprivation of otherwise protected civil rights, such as the right to bear arms or vote
in elections; loss of employment opportunities; social
stigma; and severe disabilities in other controversies,
such as custody or immigration disputes.” 567 U.S. at 573.
That cannot be correct. Congress surely did not intend to afford these groups fewer lawful options than everyone else has had, and to subject them to the potential
consequences of lawbreaking if they failed to do so. See
22
id. at 568 (Congress “did not think it was creating . . . million[s of] outlaws”). To the contrary: Congress obviously
exempted such persons from the payment obligation because they couldn’t afford to maintain federally prescribed levels of health insurance, or for some other
equitable reason why it wouldn’t be feasible or necessary
for them to maintain such coverage (such as the inefficiency of purchasing insurance during “short coverage
gaps,” or the fact that many Indian tribes provide health
care to their members).
That explains why all three branches, including this
Court, have understood subsection 5000A(e)’s elimination
of a payment obligation to have effected a de facto exemption for those persons from any legal obligation to maintain qualifying coverage. See King, 135 S. Ct. at 2486-87
(“Congress . . . provided an exemption from the coverage
requirement for anyone who has to spend more than eight
percent of his income on health insurance.” (citing
§§ 5000A(e)(1)(A), (e)(1)(B)(ii)) (emphasis added)); HHS
Br. on the Anti-Injunction Act 41, HHS v. Florida, No.
11-398 (Feb. 6, 2012), https://perma.cc/ZH8L-2R8M
(“[T]here is . . . no basis for concluding that the Congress
that exempted individuals from the penalty because of
their low income nonetheless intended the exempted individuals to be regarded as violators of a freestanding statutory requirement that they lack the resources to
satisfy”); Finance Chairman’s Mark Description 10-11
(listing the groups identified in subsection 5000A(e) as
among those provided “[e]xemptions from the requirement to maintain minimum essential coverage”),
https://perma.cc/MVE2-N9P6.
The effect of Congress’s December 2017 amendment
to Section 5000A was simply to put all other “applicable
23
individuals” in the same boat that the individuals described in subsection 5000A(e) have been in for the better
part of a decade: Now everyone is effectively exempt from
making any shared responsibility payment, and thus everyone now enjoys a lawful choice to do nothing—to make
a “payment” of zero.
2. Congress Has The Constitutional Power To Repeal Or Reduce Taxes And To Enact Provisions Of
Law That Have No Binding Legal Effect
The court of appeals nevertheless concluded that
when Congress reduced the shared responsibility payment to $0, it meant that subsection 5000A(b) was no
longer an exercise of Congress’s power “To lay and collect
Taxes,” Art. I, § 8, cl. 1, see J.A. 419-20, and that therefore
“the only logical conclusion under NFIB is to read the individual mandate as a command . . . .” J.A. 423; see also
Texas Br. in Opp. 24-25.
Even assuming, however, that subsection 5000A(b) is
no longer an exercise of Congress’s tax-laying authority,
but see Pet. Br. 32-34, this Court’s construction of Section
5000A as affording individuals two options remains not
only viable and “logical,” but undeniable. And because the
second of those options (“pay $0”) is itself something Congress has the authority to enact, the binary choice itself
raises no constitutional concerns.
To be sure, this Court in NFIB considered whether
the shared responsibility payment was a tax rather than a
“penalty” for violating a legal mandate to maintain minimum essential coverage. As a majority of the Court determined, if Section 5000A(b) were the latter, i.e., a
“ ‘punishment for an unlawful act or omission,’ ” 567 U.S.
at 567 (quoting Reorganized CF&I Fabricators, 518 U.S.
24
at 224), then it would not have been an available, alternative means of complying with the statute at all, in which
case the only lawful course of conduct for covered individuals in Section 5000A—maintaining ACA-compliant insurance coverage—would have been an unconstitutional
mandate.
The Court in no way suggested, however, that a tax
was the only alternative choice Congress had the constitutional power to offer “applicable individuals” in lieu of
maintaining minimum coverage.
What made Section 5000A constitutional was not that Congress had exercised its taxing power as such, but rather that the second
of the two alternatives Section 5000A offered, unlike the
first, was something Congress had the constitutional
power to impose upon individuals. That requirement does
not turn on the particular constitutional source of Congress’s authority to offer the alternative choice.
As explained above, the principal case on which this
Court relied in NFIB, see 567 U.S. at 568-69, confirms
that understanding. In New York v. United States, the
Court upheld two “either/or” choices Congress had afforded States in which the constitutionally permissible alternative in each pair of options involved an exercise of
Congress’s Article I authorities distinct from its taxing
power. See supra at 9-10 (discussing 505 U.S. at 169-74).
As the Court explained, the two “incentives” it upheld
“represent permissible conditional exercises of Congress’
authority under the Spending and Commerce Clauses respectively, in forms that have now grown commonplace.
Under each, Congress offers the States a legitimate
choice rather than issuing an unavoidable command.” 505
U.S. at 185.
Likewise, this Court in King v. Burwell construed an-
25
other use of “shall”—this one in the ACA itself—as offering States a choice between one option that Congress
could not directly order them to undertake and another
that Congress is constitutionally empowered to prescribe.
At issue was 42 U.S.C. § 18031(b)(1), which provides that
“[e]ach State shall . . . establish an American Health Benefit Exchange.” The Court noted that although that provision is “phrased as a requirement,” the Act as a whole is
best construed to afford a State “flexibility,” King, 135 S.
Ct. at 2489, because the statute also provides that if a
State fails to establish an insurance exchange, the Secretary of Health and Human Services would “establish and
operate such Exchange,” 42 U.S.C. § 18041(c)(1). The
Secretary’s operation of an insurance exchange obviously
is not a tax; nevertheless, Congress’s provision for such “a
federal fallback,” King, 135 S. Ct. at 2494, is sufficient—
when viewed as an available option that a State may
elect—to foreclose the constitutional problem that would
arise if Congress had actually required States to establish
exchanges.
New York, King, and NFIB thus demonstrate that
where Congress offers persons or States a choice of
means of compliance, one of which Congress could not impose upon them directly, what the Constitution requires
is simply that the other option be something that doesn’t
exceed Congress’s constitutional authority. In one statute, that permissible option might be “pay a $695 tax”
(NFIB); in another it might be a denial of federal funds
(as in the first pair of options in New York), or a denial of
federal benefits (e.g., reduced-cost access to disposal sites
in the second pair of options in New York); in yet a third,
it could be the creation of “a federal fallback” (King).
In the amended Section 5000A, the secondary option
Congress has offered to covered individuals is to “pay $0.”
26
The pertinent question, then, is whether the legislature
had the constitutional authority to enact that option.
The answer to that question is yes—of course Congress has such authority. Congress may repeal or reduce
a tax it previously imposed, just as it may narrow or eliminate regulatory obligations or “undo” other exercises of
its Article I powers, such as by shuttering a post office,
see Art. I, § 8, cl. 7 (empowering Congress “To establish
Post Offices and post Roads”). Such statutes are commonplace, even though Article I does not specifically enumerate any “repeal,” “deregulation,” or “cessation”
authorities.
One might fairly view such laws as an exercise of authority inhering in the enumerated powers themselves, or
implied from or incidental to those powers. See, e.g.,
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406, 411
(1819); see also id. at 417 (citing examples of authorities
implied or inferred from the power to “establish post-offices and post-roads”); United States v. Comstock, 560
U.S. 126, 147 (2010) (“Congress has the implied power to
criminalize any conduct that might interfere with the exercise of an enumerated power[.]”).
Alternatively, the power to reduce, deregulate or repeal may be “necessary and proper” to carry the enumerated powers themselves into execution, see Art. I, § 8, cl.
18, if only because Congress would be severely deterred
from exercising those powers in the first instance if it
couldn’t adjust the law to make it less restrictive if and
when future circumstances warrant. Cf. Comstock, 560
U.S. at 157 (Alito, J., concurring in the judgment) (“[I]t
is . . . necessary and proper for Congress to protect the
27
public from dangers created by the federal criminal jus13
tice and prison systems.”).
Either way, the 2017 Amendment is in every relevant
particular a repeal of earlier law, and there can be no real
dispute about Congress’s authority to take that step.
It is true, of course, that the 2017 amendment did not
eliminate a provision of the Tax Code—something that
Congress would have done but for an internal Senate rule,
see supra note 7—but instead codified a version of Section 5000A that no longer has any binding legal effect at
all; it is, at most, merely “a nudge in [a] preferred direction[].” Rosado v. Wyman, 397 U.S. 397, 413 (1970). If
anything, however, that makes the amended Section
5000A less constitutionally problematic, not more, than it
was before the amendment (or than the provisions this
Court considered in New York), because it now has no impact at all on the freedom of individuals to act.
The State Respondents miss the mark in suggesting
that if Section 5000A is construed as offering individuals
a choice between maintaining insurance and doing nothing it would be beyond Congress’s power to enact because
Congress lacks any “enumerated” power to enact “nonbinding” provisions of law. Texas Br. in Opp. 25-26.
13
See also 42 U.S.C. § 2000bb-3(a) (providing that the Religious
Freedom Restoration Act, which prohibits imposing substantial burdens on religious exercise absent sufficient justification, “applies to
all Federal law”); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682,
695 (2014) (“As applied to a federal agency, RFRA is based on the
enumerated power that supports the particular agency’s work.”).
28
14
Since the very first Congress, the national legislature
has enacted statutes containing provisions that have no
binding legal effect, such as “Whereas” clauses; “Sense of
the Congress” declarations; “It shall be the policy of the
United States” proclamations; congressional “findings”;
and exhortations of others to act in certain ways or expressions of congressional expectations or aspirations. See Pet. Br. 32 (citing examples); House of Rep. Br.
15
35-36 (citing others). No one would argue that Congress
lacks the power to make such legally inoperative statements in a concurrent resolution of both Houses. The fact
that in some such cases the President signs the bill (i.e., a
joint resolution) into law, and that it later appears in the
Statutes at Large, surely does not mean that Congress
thereby crosses some constitutional line. (Indeed, many
14
See, e.g., Resolution of Sept. 23, 1789, 1 Stat. 96 (“That it be recommended to the legislatures of the several States to pass laws, making it expressly the duty of the keepers of their gaols, to receive and
safe keep therein all prisoners committed under the authority of the
United States . . . .”); Printz v. United States, 521 U.S. 898, 909 (1997)
(“Significantly, the [1789] law issued not a command to the States’
executive, but a recommendation to their legislatures.”).
15
See also, e.g., Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163,
168-69 (2009) (discussing statute containing many such expressions,
acknowledgements, apologies, etc., including one that “urges the
President [to] acknowledge the ramifications of the overthrow of the
Kingdom of Hawaii and to support reconciliation efforts between the
United States and the Native Hawaiian people”).
29
provisions of the original ACA itself have no operative le16
gal effect, and Respondents rest their case for inseverability almost entirely on an ACA “finding.” See Texas Br.
in Opp. 30-31 (discussing 42 U.S.C. § 18091(2)(I).)
* * *
Because Congress may enact a statute that offers individuals a choice between two options, one of which Congress could properly enact on its own, and because it’s
clear that is precisely what Congress did in 2017—i.e., afford covered individuals a choice between maintaining
minimum coverage and paying $0, rather than “mandating” compliance with the first of those two options—this
Court must affirm that understanding of Section 5000A in
order to “take care not to undo what [the Legislature] has
done.” King, 135 S. Ct. at 2496. “A fair reading of legislation demands a fair understanding of the legislative
plan.” Ibid.
Indeed, to conclude otherwise would turn the constitutional avoidance canon on its head. Adopting the court of
appeals’ construction of the amended Section 5000A
would not merely raise the sort of “grave and doubtful
constitutional questions” this Court has a “duty” to avoid
16
The ACA contains, for instance, several “Sense of the Senate”
and “Sense of the Congress” provisions expressing certain things that
various actors “should,” “should not,” or “may” do. E.g., Pub. L. No.
111-148, § 1563(b), 124 Stat. 271 (2010); id. § 2406, 124 Stat. 306; id.
§ 2952(a)(2), 124 Stat. 344-45; id. § 4401(b), 124 Stat. 587; id.
§ 5201(a)(2), 124 Stat. 606 (creating 42 U.S.C. § 292s(d)); id. § 5403(a),
124 Stat. 648 (creating 42 U.S.C. § 294a(k)); id. § 6801, 124 Stat. 804;
id. § 7001(b), 124 Stat. 804; id. § 7002(f)(2), 124 Stat. 818.
30
where possible. Jones v. United States, 529 U.S. 848, 857
(2000) (internal citation omitted); see also NFIB, 567 U.S.
at 562 (Opinion of Roberts, C.J.). It would be to accuse
the political branches of brazenly enacting a law that a
majority of Justices of this Court, and a majority of those
who voted for the amendment, believed to be beyond the
power of the federal Government to enact.
It is exceedingly unusual, to say the least, for the federal political branches to enact laws in flagrant disregard
of this Court’s constitutional holdings or judgments. On
the rare occasions where they’ve done so, it has typically
been to express profound constitutional disagreement
with the Court—such as when the 37th Congress and
President Lincoln enacted a law declaring that “there
shall be neither slavery nor involuntary servitude in any
of the Territories of the United States,” Act of June 19,
1862, ch. 111, 12 Stat. 432, as a direct rebuke to this
Court’s pronouncement in Dred Scott v. Sandford, 60 (19
How.) U.S. 393, 432-52 (1857), that Congress lacked au17
thority to do just that.
This is not one of those rare cases.
17
See also United States v. Eichman, 496 U.S. 310 (1990) (declaring
unconstitutional a flag-burning prosecution under the Flag Protection Act of 1989, which Congress enacted in part to “invite[] [the
Court] to reconsider,” id. at 315, its holding in Texas v. Johnson, 491
U.S. 397 (1989), that “flag burning as a mode of expression” enjoys
“the full protection of the First Amendment”).
31
CONCLUSION
For the foregoing reasons, the Court should reverse
the court of appeals’ judgment.
Respectfully submitted.
MARTIN S. LEDERMAN
600 New Jersey Ave., NW
Washington, DC 20001
MICHAEL C. DORF
247 Hughes Hall
Ithaca, NY 14853
RALIA E. POLECHRONIS
WILKINSON WALSH LLP
130 West 42nd St., Ste. 1402
New York, NY 10036
RAKESH N. KILARU
Counsel of Record
AMELIA I.P. FRENKEL
JENNA H. PAVELEC
*
CAITLIN G. CALLAHAN
WILKINSON WALSH LLP
2001 M St. NW, 10th Floor
Washington, DC 20036
(202) 847-4000
rkilaru@wilkinsonwalsh.com
MAY 13, 2020
*
Admitted in New York and practicing law in the District of Columbia pending admission to the D.C. Bar under the supervision of
bar members pursuant to D.C. Court of Appeals Rule 49(c)(8).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.