Still trying to square @jadler1969 & @IlyaSomin opinion that 5000A is now unconstitutional with @marty_lederman opinion that it isn't and that "DOJ's argument to the contrary is inexplicable." All agree on the severability issue. But if Marty's correct no need to even address it.
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The simple truth is it can’t be squared. This is just one of many constitutional issues on which experts disagree.
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It's not a constitutional issue--it's a matter of statutory interpretation. And I think we all agree that of course Congress's intent and design was not to impose a legal requirement to maintain insurance. The only disagreement is about whether it's proper to ignore that design.
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As for statutory interpretation. Since 5000A still uses the term "shall," while at the same time attaching no penalty. Barnhart v. Peabody Coal Co., 536 U.S. 149, 184-185 (2003) (THOMAS, J., dissenting) ["shall" = "mandatory directive," not "hortatory" "should"].
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The key word in that tweet is "dissenting."
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1. It appears as though everyone agrees that, in deciding the severability issue, that the court (contrary to DOJ's argument) is limited to the 2017 amendment to the ACA. If that's correct, should the court also be so limited in determining the threshold question ...
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3. Or, stated differently, why would limitations that apply to ascertaining Congress' intent regarding severability not apply in ascertaining that intent regarding the threshold (statutory interpretation) question?
End of conversation
New conversation -
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Time for DOJs to defend what they feel like.
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