The case that could end the Texas lawsuit.

by Nicholas Bagley — Friday, June 15, 2018

A slew of amicus briefs were filed yesterday in the Texas lawsuit, almost every one of them pushing back on the argument that the Affordable Care Act should be invalidated, in whole or in part. (I filed one myself, together with a bipartisan group of law professors.)

Today, I wanted to highlight one of those briefs: this one by the American Medical Association and other medical societies. It’s the brief that the United States would have filed if it hadn’t abandoned its duty to defend the statute.

The brief is excellent throughout, especially in arguing that the plaintiffs don’t have standing to bring the suit (an issue I flagged last week). But its most important contribution is identifying a Fifth Circuit case—one that binds the district court that’s hearing the lawsuit—that seems to dispose of the argument that a penalty-free mandate is unconstitutional.

In United States v. Ardoin, 19 F.3d 177 (5th Cir. 1994), the Fifth Circuit held that Congress may constitutionally exercise its taxing power without actually raising “some revenue” for the government. Ardoin involved the intersection between the National Firearms Act of 1936 (NFA) and a subsequently-enacted statute, the Firearms Owners’ Protection Act of 1986 (FOPA). The NFA regulated machine guns under Congress’s taxing power; it barred the “making of machineguns without having filed a written application or paying the making tax.” Id. at 179. FOPA made possession of machineguns illegal. Id. After FOPA was enacted in 1986, the Bureau of Alcohol, Tobacco, and Firearms refused to “accept applications to register or to pay the tax” on machineguns. Id. at 179. When the defendant was convicted of violating the NFA, he contended that the “constitutional authority for provisions of the NFA dealing with the registration and taxing of post-1986 machineguns [was] gone.” Id.

The Fifth Circuit rejected this argument. It explained that “the basis for ATF’s authority to regulate—the taxing power—still exists; it is merely not exercised.” Id. at 180. In so doing, the Fifth Circuit held that the NFA could “be upheld on the preserved, but unused, power to tax.” Id. (emphasis added). And in so holding, the Fifth Circuit flatly rejected the dissent’s claim—identical to the Plaintiff’s here—that “[t]o remain legitimate . . . a measure enacted under the tax power must raise some revenue.” Id. at 187 (Wiener, J., dissenting).

Ardoin thus refutes Plaintiffs’ arguments, and its unequivocal reasoning requires this Court to uphold the constitutionality of § 5000A. Under this controlling precedent, a law need not raise “some revenue” to qualify as a tax under Congress’s taxing power. All that is required is that the authority to tax be preserved, even if no revenue is actually raised.

Q.E.D. If there’s no constitutional flaw with the penalty-free mandate, there’s no need to address the (meritless) arguments about severability.

To be sure, it’s possible to distinguish Ardoin: an unexercised tax is formally different from a tax that Congress has zeroed out. Functionally, however, the $0 tax in Ardoin is identical to the $0 mandate penalty—which is why the case lends powerful support to the argument that the penalty-free mandate is constitutional.

How is it, then, that the Justice Department can say that it couldn’t come up with a single non-frivolous argument to defend the statute? Didn’t it have a duty to at least mention the case to the Texas judge who’s hearing the lawsuit?

@nicholas_bagley

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About Nicholas Bagley

Nicholas Bagley is a Professor of Law at the University of Michigan Law School.

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