As The Court Decides In California V. Texas

To The Reader’s Forum:

On Tuesday, November 10th, the U.S. Supreme Court heard oral arguments, in a case entitled California v. Texas, to determine whether the repeal of the tax penalty for noncompliance with the individual mandate under the Affordable Care Act (ACA) renders the individual mandate unconstitutional and, if so, whether that means the entire ACA is unconstitutional.

In National Federation of Independent Business (NFIB) v. Sebelius, 2012, the Supreme Court ruled that the individual mandate was constitutional as a legitimate exercise of congress’s Taxing Power. The Court never–I repeat never–ruled that the constitutionality of the entire ACA was dependent upon the individual mandate’s constitutionality.

If the Court holds, in California v. Texas, that the individual mandate is now unconstitutional because the tax penalty has, in effect, been repealed, and therefore can no longer be upheld as a legitimate exercise of congress’s Taxing Power, its holding would provide no justification for also concluding that the entire ACA is unconstitutional. If anything, the Court would have a basis for upholding the ACA’s constitutionality, since the lower court decision on review in NFIB v. Sebelius not only held the mandate unconstitutional, but also found it severable from the Act’s other provisions.

Moreover, in deciding California v. Texas, the Court is obligated to take notice that the congress that repealed the mandate’s penalty did not have the votes to repeal the ACA. It would, therefore, be intellectually dishonest for the Court to conclude that the repeal of the penalty was intended by that congress to act as a repeal of the entire ACA. A repeal of the entire Act cannot be implied from these facts.

Finally, studies have demonstrably shown that the individual mandate–before and after the repeal of the penalty for noncompliance with it–has had only a minor effect on insurance-coverage rates under the ACA, since the mandate never worked as expected.

As I learned in high school when I first read Plato’s Dialogues over the summer, logic can help us to discover the truth but it cannot create it. If the Court rejects fact as truth and substitutes opinion for fact it will have created a false justification for holding the ACA unconstitutional.

Maurice F. Baggiano, J.D.,

member of the Bar of the U.S. Supreme Court, amicus in King v. Burwell (ACA tax-subsidy case)



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