Tuesday, June 22, 2021

The Power of Nothing: What the Post-2017 Affordable Care Act and the Religious Freedom Restoration Act Have in Common

 by Michael C. Dorf

Last week I discussed the standing-by-severability issue in California v. Texas. Today, my latest Verdict column addresses the merits of the case, mostly to respond to points made by Justice Alito (joined by Justice Gorsuch) in dissent. I begin by explaining why, contrary to the Alito dissent, the individual mandate--if it exists and if it is unconstitutional--is severable from the rest of the Affordable Care Act (ACA). Some severability inquiries are difficult, because they require counterfactual analysis. This one isn't and doesn't. We know Congress thought the rest of the ACA could operate without a mandate because that's what Congress created--an ACA with no enforceable mandate--when it zeroed out the tax penalty in 2017.

My severability analysis in the column also includes discussion of a point I have not seen widely discussed (although it's possible someone anticipated my view). I explain:

To be sure, most or perhaps even all of the Republicans who voted to zero out the tax penalty in 2017 would have also liked to pass another law eliminating the rest of the ACA. However, that kind of intent with respect to legislation that Congress did not pass is irrelevant. Consider that most of the Democratic members of Congress who voted for the American Rescue Plan Act in 2021 would also have liked to raise the minimum wage to $15 per hour, but the parliamentarian ruled that change out of bounds via reconciliation, so it did not make it into the law. Just as it would be absurd to argue that the American Rescue Plan Act tacitly imposes a $15 per hour minimum wage because that was the unenacted intent of most of the Democrats who voted for the Act, so it is absurd (or at least very much mistaken) to say that the unenacted intent of the Republicans who voted for tax cuts in 2017 invalidates the entire ACA.

My column then turns to the merits. Condensing an argument that appears more fully in an amicus brief that Marty Lederman and I filed, I explain first that everyone understood in 2017 that zeroing out the tax penalty was effectively a repeal of the mandate, and a repealed law doesn't exist so cannot be unconstitutional. I then point to a fundamental error that the plaintiffs and the dissent make. They say that NFIB v. Sebelius rested the mandate's validity on the taxing power, so without any tax obligation, the mandate is unconstitutional. But that's plainly wrong. As I explain in the column and as Marty and I explained at length in the brief, if Congress has the power to require Y, it may give regulated actors a choice to do X or Y, even if Congress lacks the power to compel X standing alone. X is a requirement to purchase health insurance. Before the tax was zeroed out, Y was paying extra taxes. Now Y is doing nothing. Because Congress has the power to tell people they don't have to do anything, the post-2017 version of the ACA is valid.

My column concludes with a reference to the original Kung Fu Panda movie (spoiler alert!): "The secret ingredient of Secret Ingredient Soup is nothing." Here I want to say a few more words about the power of nothing.

The Supreme Court has relied on the power of Congress to not require anything in at least one other very important context in recent years. In a number of cases, including most famously Burwell v. Hobby Lobby, the Court has construed and applied the Religious Freedom Restoration Act (RFRA). But how? Didn't the Court invalidate RFRA in 1997 in City of Boerne v. Flores? It did, but only as applied to state and local governments, not as applied to the federal government. How's that? The Court has never provided an explanation, but the answer is readily apparent. As I wrote for a SCOTUSblog symposium in 2014:

as applied to the federal government, RFRA falls within Congress’s enumerated powers, notwithstanding [Boerne]. There the Court held that, as applied to states and their subdivisions, RFRA was not a valid exercise of Congress’s power to enforce the Fourteenth Amendment. Because RFRA as applied to state and local government cannot plausibly be understood as an exercise of any other enumerated power, it was effectively held invalid under the Tenth Amendment. But as a limitation on federal power, Congress clearly had the power to enact RFRA, because in that context RFRA is simply the withholding of federal power. When it provides exceptions to laws passed under the Taxing Power, RFRA (un)exercises the Taxing Power; when it provides exceptions to laws passed under the Commerce Power, RFRA (un)exercises the Commerce Power; and so forth.

Put differently, whenever Congress makes an exception to what would be an otherwise valid exercise of power, it uses its power to not require anything. RFRA's validity as applied to the federal government rests on the power of nothing.

Seeing that Congress always has the power to not require anything enables us to see the post-2017 version of the ACA mandate, if it can be said to exist, as a valid non-exercise of just about each and every congressional power. Let me illustrate with a couple of hypothetical examples.

(A) As most readers know, Congress has provided subsidies for many people to purchase health insurance. Suppose, however, that Congress had structured the law a little differently. Suppose a law that in 2012 reads as follows: (X) Buy health insurance each year and receive a $5,000 check from the U.S. government for that year; or (Y) don't buy health insurance and don't receive any money from the government. The "mandate" to purchase health insurance would now be an exercise of the Spending power. (There are limits on the spending power when used coercively against the states but none would appear to apply to its exercise here with respect to individuals; to the extent that the so-called unconstitutional conditions doctrine does apply to individuals, it does not appear to be violated in this example.)

Now suppose that Republicans gain control of Congress and they change the law so that it reads: (X) Buy health insurance each year and receive a $0 check from the U.S. government for that year; or (Y) don't buy health insurance and don't receive any money from the government. This new law is indistinguishable from the actual post-2017 version of the ACA, but now we can conceptualize the mandate/no-mandate as valid because Congress is not legislating under the Spending Clause, which it plainly can do (or rather, not do).

(B) Or suppose that the original ACA mandate relied on the Commerce Clause. The federal Health Insurance Portability and Accountability Act (HIPAA) was enacted as a regulation of interstate commerce. Pursuant to HIPAA, federal regulations protect privacy. So let's imagine that the original version of the ACA read: (X) Buy health insurance each year and receive the full privacy protection of the HIPAA regulations; or (Y) don't buy health insurance and don't receive privacy protection under the HIPAA regulations. Assume that choice is valid. (If you think it impermissibly coerces sacrifices of privacy, imagine some other conditional exercise of the commerce power that does not).

Now suppose that Republicans gain control of Congress and they change the law so that it reads: (X) Buy health insurance each year and receive no privacy protection under the HIPAA regulations, which are hereby repealed; or (Y) don't buy health insurance and receive no privacy protection under the HIPAA regulations, which are hereby repealed. So far as the obligation (or rather, the lack of any obligation) to purchase health insurance is concerned, this new law is indistinguishable from the actual post-2017 version of the ACA, combined, as it happens, with a repeal of the HIPAA privacy regs. So now we can conceptualize the mandate/no-mandate as valid because Congress is not legislating under the Commerce Clause.

Seeing that the non-exercise of a power is the non-exercise of all powers helps us see the error that the plaintiffs and dissenters made in California v. Texas. They were blinded by path dependence. Because the original version of the mandate had bite in virtue of the use of the taxing power, they mistakenly believed that the taxing power was somehow essential to the mandate. But once the tax was zeroed out, we can conceptualize the mandate/non-mandate as resting on the obvious validity of the non-exercise of any and all powers of Congress.

I'll conclude with yet another analogy for the plaintiffs and the dissenters in California v. Texas. Most Israeli Jews are not especially observant. Yet the main forms of liberal Judaism that have been popular among American Jews--Reform, Conservative, and Reconstructionist Judaism--have not caught on among cultural but not especially religious Israeli Jews. Why not? The answer is sometimes captured in the expression "the synagogue I don't attend is Orthodox." We can understand the expression to mean that when secular Israelis think about but choose not to go to synagogue, they're thinking about and choosing not to go to an Orthodox synagogue; it never even occurs to them to think about the more liberal synagogues.

Of course that's logically nonsensical. If one doesn't attend synagogue at all, then the synagogue one doesn't attend is every kind of synagogue.

Likewise, the plaintiffs and the dissenters in California v. Texas think about the taxing power and note that a tax of $0 is not an exercise of the taxing power. It never occurs to them to think that the non-exercise of power by Congress is the non-exercise of every other power, and that such non-exercise of power by Congress is valid. But it at least should have occurred to the dissenters--because the point was right there in the Dorf/Lederman amicus brief.