Wednesday, April 24, 2019
Sam Wice, If the ACA Is Enjoined, Must the TCJA Be Enjoined Too?, 36 Yale J. on Reg.: Notice & Comment (2019):
The Department of Justice recently announced that it will support a district court ruling that the entire Affordable Care Act (ACA) should be enjoined as the allegedly unconstitutional modifications in the Tax Cuts and Jobs Act (TCJA) that zeroed out the individual mandate to purchase health insurance are inseverable from the rest of the ACA. ... [A]ssuming for the sake of argument that the lower court’s holding is correct, it seems that the court did not take its holding to the logical conclusion of its legal reasoning. The court’s opinion seems to imply that it also should have enjoined the TCJA in its entirety.
By the severability argument used by the district court, it should have ruled the offending provision added by the TCJA inseverable from the TCJA and enjoined the entire TCJA too. ...
As the court’s holding states that Congress’ intent must be viewed through what Congress could do under reconciliation, Congress must have intended that any provision causing the TCJA to violate the reconciliation requirements be inseverable from the rest of the Act. As holding the individual mandate provision unconstitutional would violate Congress’ intent to comply with reconciliation requirements when passing the TCJA, the court should also have enjoined the TCJA.