If you’ve been following the news about the recent suit filed in Texas claiming the ACA is unconstitutional, Nicholas Bagley at The Incidental Economist thinks an amicus brief filed by the American Medical Association is an effective rebuttal:
Today, I wanted to highlight one of those briefs: this one by the American Medical Associationand 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.
Unfortunately, that’s not a SCOTUS decision, but the Fifth Circuit decision, so it’s always possible SCOTUS would ignore it if it ended up in the SCOTUS docket. But it might make for an early victory.
