One of the worst trends in modern jurisprudence is that of higher court judges unnecessarily and timorously punting legal questions back to lower courts. Two judges on the 5th Circuit Court of Appeals did it again Wednesday, thus leaving Obamacare in constitutional limbo yet again. Their explanation for doing so was unsatisfactory.
The case, Texas v. U.S., involved a new challenge to the “individual mandate” in Obamacare. The mandate is the provision in that controversial law that was upheld by Chief Justice John Roberts in 2012, on flimsy grounds, because Roberts ruled it could be seen as a tax even though he admitted that was not its most ordinary interpretation. Roberts and a court majority agreed, though, that if it were not a tax, it would be unconstitutional.
In 2017, Congress amended Obamacare to set the “tax” on refusal to pay the mandate at zero. In December 2018, a Texas district judge ruled that a tax of zero dollars and zero cents is not a tax at all, and therefore, the mandate is unconstitutional. Furthermore, because so many of the law’s own supporters had said the mandate was a “core” or “essential” provision, without which the whole law would cease to work as intended, the judge ruled that the mandate was not “severable” from the rest of Obamacare. Because the mandate was unconstitutional, he ruled, so was the whole law.
A three-judge panel of the 5th Circuit considered the government’s appeal of that decision. Two of them ruled, well within reason, that the district judge was right: A tax of zero is not a tax, and if it’s not a tax, then the mandate isn’t constitutional. This part of the decision makes perfect sense. The key question was that of severability. If the mandate is unconstitutional, does that make the whole law unconstitutional, too?
This is not a new question. District courts and appeals courts across the country have considered it numerous times, with varying results. All nine justices of the Supreme Court indicated the mandate is not severable from some major portions of the law. The only four justices who opined further on that question said the whole law must fall if the mandate isn’t a tax.
When Congress, as part of much broader tax-cut legislation, set the mandate “tax” at zero in 2017, plenty of its members obviously intended to hobble the entire edifice. Still, because the change in the mandate was such a small part of the overall 2017 tax bill, it is ludicrous for judges to try to divine the “intent” of Congress on a legal issue such as severability that Congress itself did not specifically address.
Nonetheless, the 5th Circuit judges sent the case back to the district court for yet more analysis of the severability issue. They wrote that the district judge didn’t address any changes in congressional intent from 2010 to 2017.
This is nonsense. The legal issues haven’t changed since all those other courts opined on the issue. Either the 5th Circuit eventually will decide the mandate is legally severable or it won’t. No matter what the district judge determines, the appellate judges will again review his decision.
The appeals judges cavalierly claim the district court “has many tools at its disposal” and “is best positioned to determine” whether the mandate can be severed from the rest of the bill. Yet, they say not a word about why the district court has better tools or positioning than the appeals court. In short, the appellate judges merely accomplish further delay of a matter on which they will use their own analysis anyway.
Usually, an appeals court remands a case to lower courts for more fact-finding. Here, the facts won’t change. The only thing that will change is that the same judge will do more legal hair-splitting, so these two appellate judges can put off their own hair-splitting until later.
Meanwhile, damage continues to accrue to everyone. Not only do legal expenses for the parties to the suit keep growing, but so do the “costs of complying” with the mandate that these two judges themselves write, earlier in their decision, are significant. These costs are borne by every state, every individual, and every business that must file paperwork to comply with the mandate.
The issue of severability, and thus of the constitutionality of the whole law, is close and complicated. It’s not clear to me which way the 5th Circuit, or the Supreme Court, should decide. Still, a decision must be made. It is irresponsible for these two judges to delay that decision. Sometimes, justice delayed really is justice denied.
