Tex. v. United States
Opinion
Reed O'Connor, United States District Judge *585The United States healthcare system touches millions of lives in a daily and deeply personal way. Health-insurance policy is therefore a politically charged affair-inflaming emotions and testing civility. But Article III courts, the Supreme Court has confirmed, are not tasked with, nor are they suited to, policymaking.1 Instead, courts resolve discrete cases and controversies. And sometimes, a court must determine whether the Constitution grants Congress the power it asserts and what results if it does not. If a party shows that a policymaker exceeded the authority granted it by the Constitution, the fruit of that unauthorized action cannot stand.
Here, the Plaintiffs allege that, following passage of the Tax Cuts and Jobs Act of 2017 (TCJA), the Individual Mandate in the Patient Protection and Affordable Care Act (ACA) is unconstitutional. They say it is no longer fairly readable as an exercise of Congress's Tax Power and continues to be unsustainable under the Interstate Commerce Clause. They further urge that, if they are correct, the balance of the ACA is untenable as inseverable from the Invalid Mandate.
Resolution of these claims rests at the intersection of the ACA, the Supreme Court's decision in NFIB , and the TCJA. In NFIB , the Supreme Court held the Individual Mandate was unconstitutional under the Interstate Commerce Clause but could fairly be read as an exercise of Congress's Tax Power because it triggered a tax. The TCJA eliminated that tax. The Supreme Court's reasoning in NFIB -buttressed by other binding precedent and plain text-thus compels the conclusion that the Individual Mandate may no longer be upheld under the Tax Power. And because the Individual Mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause-as the Supreme Court already held.
Finally, Congress stated many times unequivocally-through enacted text signed by the President-that the Individual Mandate is "essential" to the ACA. And this essentiality, the ACA's text makes clear, means the mandate must work "together with the other provisions" for the Act to function as intended. All nine Justices to review the ACA acknowledged this text and Congress's manifest intent to establish the Individual Mandate as the ACA's "essential" provision. The current and previous Administrations have recognized that, too. Because rewriting the ACA without its "essential" feature is beyond the power of an Article III court, the Court thus adheres to Congress's textually expressed intent and binding Supreme Court precedent to find the Individual *586Mandate is inseverable from the ACA's remaining provisions.
Construing the Plaintiffs' Application for Preliminary Injunction, (ECF No. 39), as a motion for partial summary judgment, the Court therefore DENIES Plaintiffs' request for an injunction but GRANTS summary judgment on Count I of the Amended Complaint. See FED. R. CIV. P. 56(f); July 16, 2018 Order, ECF No. 176.
I. BACKGROUND
More than any factual developments, the background to this case involves the nuances of the ACA, NFIB , and the TCJA, which the Court traces below.
A. The ACA
The ACA became law on March 23, 2010. See Patient Protection and Affordable Care Act, Pub. L. 111-148,
For starters, the ACA established a "[r]equirement to maintain minimum essential coverage"-commonly known as the "Individual Mandate." 26 U.S.C. § 5000A(a). To compel compliance with the Individual Mandate, Congress imposed a tax penalty on individuals who were subject to the requirement but chose to disobey it.
From the start, Congress exempted some individuals from Individual Mandate. For example: those qualifying for a "[r]eligious exemption[ ],"
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Reed O'Connor, United States District Judge *585The United States healthcare system touches millions of lives in a daily and deeply personal way. Health-insurance policy is therefore a politically charged affair-inflaming emotions and testing civility. But Article III courts, the Supreme Court has confirmed, are not tasked with, nor are they suited to, policymaking.1 Instead, courts resolve discrete cases and controversies. And sometimes, a court must determine whether the Constitution grants Congress the power it asserts and what results if it does not. If a party shows that a policymaker exceeded the authority granted it by the Constitution, the fruit of that unauthorized action cannot stand.
Here, the Plaintiffs allege that, following passage of the Tax Cuts and Jobs Act of 2017 (TCJA), the Individual Mandate in the Patient Protection and Affordable Care Act (ACA) is unconstitutional. They say it is no longer fairly readable as an exercise of Congress's Tax Power and continues to be unsustainable under the Interstate Commerce Clause. They further urge that, if they are correct, the balance of the ACA is untenable as inseverable from the Invalid Mandate.
Resolution of these claims rests at the intersection of the ACA, the Supreme Court's decision in NFIB , and the TCJA. In NFIB , the Supreme Court held the Individual Mandate was unconstitutional under the Interstate Commerce Clause but could fairly be read as an exercise of Congress's Tax Power because it triggered a tax. The TCJA eliminated that tax. The Supreme Court's reasoning in NFIB -buttressed by other binding precedent and plain text-thus compels the conclusion that the Individual Mandate may no longer be upheld under the Tax Power. And because the Individual Mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause-as the Supreme Court already held.
Finally, Congress stated many times unequivocally-through enacted text signed by the President-that the Individual Mandate is "essential" to the ACA. And this essentiality, the ACA's text makes clear, means the mandate must work "together with the other provisions" for the Act to function as intended. All nine Justices to review the ACA acknowledged this text and Congress's manifest intent to establish the Individual Mandate as the ACA's "essential" provision. The current and previous Administrations have recognized that, too. Because rewriting the ACA without its "essential" feature is beyond the power of an Article III court, the Court thus adheres to Congress's textually expressed intent and binding Supreme Court precedent to find the Individual *586Mandate is inseverable from the ACA's remaining provisions.
Construing the Plaintiffs' Application for Preliminary Injunction, (ECF No. 39), as a motion for partial summary judgment, the Court therefore DENIES Plaintiffs' request for an injunction but GRANTS summary judgment on Count I of the Amended Complaint. See FED. R. CIV. P. 56(f); July 16, 2018 Order, ECF No. 176.
I. BACKGROUND
More than any factual developments, the background to this case involves the nuances of the ACA, NFIB , and the TCJA, which the Court traces below.
A. The ACA
The ACA became law on March 23, 2010. See Patient Protection and Affordable Care Act, Pub. L. 111-148,
For starters, the ACA established a "[r]equirement to maintain minimum essential coverage"-commonly known as the "Individual Mandate." 26 U.S.C. § 5000A(a). To compel compliance with the Individual Mandate, Congress imposed a tax penalty on individuals who were subject to the requirement but chose to disobey it.
From the start, Congress exempted some individuals from Individual Mandate. For example: those qualifying for a "[r]eligious exemption[ ],"
Congress also wanted to ensure affordable health insurance for those with pre-existing conditions. See
The ACA includes many other integral regulations and taxes as well. These include, among other things, an excise tax on high-cost insurance plans, 26 U.S.C. § 4980I ; the elimination of coverage limits, 42 U.S.C. § 300gg-11 ; and a provision allowing dependent children to remain on their parents' insurance until age 26,
But just as Congress funneled nearly all Americans into health-insurance coverage on the one hand-through the Individual Mandate and employer mandate, e.g.-it also significantly reduced reimbursements to hospitals by more than $200 billion over ten years on the other. 42 U.S.C. §§ 1395ww(b)(3)(B)(xi)-(xii), 1395ww(q), 1395ww(r), and 1396r-4(f)(7).
Notably, several ACA provisions are tied to another signature reform-the creation and subsidization of health-insurance exchanges. See
The ACA also lays out hundreds of minor provisions, spanning the Act's 900-plus pages of legislative text, that complement the above-mentioned major provisions and others.
B. NFIB
After the ACA took effect, states, individuals, and businesses challenged its constitutionality in federal courts across the country.3 One of those cases reached the Supreme Court in 2012. See NFIB , 567 U.S. at 519,
1. Chief Justice Roberts
Chief Justice Roberts authored a lengthy opinion considering several issues. See id. at 530-89,
*588In Part III-A , Chief Justice Roberts concluded the Individual Mandate is not a valid exercise of Congress's power under the Interstate Commerce Clause. Id. at 546-61,
The Chief Justice disagreed and held the Interstate Commerce Clause authorizes regulating "activity," not inactivity. Id. at 553,
Though no other Justice joined this part of the Chief Justice's opinion, the "joint dissent"-consisting of Justices Scalia, Kennedy, Thomas, and Alito-reached the same conclusion on the Interstate Commerce Clause question. Id. at 657,
In Part III-B , the Chief Justice concluded that, because the Individual Mandate is impermissible under the Interstate Commerce Clause, the Supreme Court was obligated to entertain the Government's argument that the mandate could be upheld under the Tax Power. Id. at 561-63,
In Part III-C , the Chief Justice wrote a majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, holding that 26 U.S.C. § 5000A -including the Individual Mandate and the shared-responsibility payment-was a constitutional exercise of Congress's Tax Power. Id. at 563-74,
The Supreme Court's conclusion that § 5000A constituted a constitutional exercise of Congress's Tax Power turned on several factors. First, the shared-responsibility payment "is paid into the Treasury by taxpayers when they file their tax returns." Id. at 563,
Finally, in Part IV , Chief Justice Roberts was joined by Justices Breyer and Kagan in concluding that the ACA's Medicaid-expansion provisions unconstitutionally coerced States into compliance-but given the existence of a severability clause, the unconstitutional portion of the Medicaid provisions could be severed. Id. at 575-88,
2. Joint Dissent
Justices Scalia, Kennedy, Thomas, and Alito agreed with the Chief Justice that the Individual Mandate exceeds Congress's powers under the Interstate Commerce and Necessary and Proper Clauses, but they concluded § 5000A could not be characterized as a tax.5 Id. at 652-57,
Because the joint dissenters concluded the Individual Mandate and the Medicaid expansion were unconstitutional, they-and only they-addressed whether "all other provisions of the Act must fall as *590well." Id. at 691,
In passing the ACA, the dissenters noted, Congress understood the fiscal concerns surrounding healthcare reform and engineered a system whereby "it did not intend to impose the inevitable costs on any one industry or group of individuals." Id. at 694,
the Federal Government bears the burden of paying billions for the new entitlements mandated by the Medicaid Expansion and federal subsidies for insurance purchases on the exchanges; but it benefits from reductions in the reimbursements it pays to hospitals. Hospitals lose those reimbursements; but they benefit from the decrease in uncompensated care, for under the insurance regulations it is easier for individuals with pre-existing conditions to purchase coverage that increases payments to hospitals. Insurance companies bear new costs imposed by a collection of insurance regulations and taxes, including "guaranteed issue" and "community rating" requirements to give coverage regardless of the insured's pre-existing conditions; but the insurers benefit from the new, healthy purchasers who are forced by the Individual Mandate to buy the insurers' product and from the new low-income Medicaid recipients who will enroll in insurance companies' Medicaid-funded managed care programs. In summary, the Individual Mandate and Medicaid Expansion offset insurance regulations and taxes, which offset reduced reimbursements to hospitals, which offset increases in federal spending.
Id. at 695-96. "In summary, the Individual Mandate and Medicaid Expansion offset insurance regulations and taxes, which offset reduced reimbursements to hospitals, which offset increases in federal spending." Id. at 696,
Next, the joint dissenters detailed the ACA's major provisions. They concluded, given the above, that these provisions-insurance regulations and taxes; hospital-reimbursement reductions and other reductions in Medicare expenditures; health-insurance exchanges and their federal subsidies; and the employer-responsibility assessment-are all inseverable from the Individual Mandate. See
C. The TCJA
On December 22, 2017, the Tax Cuts and Jobs Act of 2017 was signed into law. See Pub. L. No. 115-97,
In the TCJA, Congress reduced the ACA's shared-responsibility payment to zero, effective January 1, 2019. See TCJA § 11081. Congress took no other action pertaining to the ACA. Nor could it. The reconciliation process limited Congress to doing exactly what it did: reducing taxes. See Fed. Defs.' Resp. 16 n.4, ECF No. 92 ("Although Congress was able to revoke the tax penalty, it could not have revoked the guaranteed-issue or community-rating provisions through reconciliation."); Sept. 5, 2018 Hr'g Tr. at 36:7-12 (Intervenor Defendants) [hereinafter "Hr'g Tr."] ("Congress did not repeal any part of the ACA, including the shared responsibility payment. In fact, it could not do so through the budget reconciliation procedures it used.").
II. PROCEDURAL BACKGROUND
Plaintiffs are the States of Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, Governor Paul LePage of Maine (the "State Plaintiffs"), and individuals Neill Hurley and John Nantz (the "Individual Plaintiffs" and, collectively with the State Plaintiffs, "Plaintiffs").
Defendants are the United States of America, the United States Department of Health and Human Services ("HHS"), Alex Azar, in his official capacity as Secretary of HHS, the United States Internal Revenue Service (the "IRS"), and David J. Kautter, in his official capacity as Acting Commissioner of Internal Revenue (collectively, the "Federal Defendants").
Finally, the States of California, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Massachusetts, Minnesota, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and Washington, and the District of Columbia intervened as defendants (collectively, the "Intervenor Defendants").
The Plaintiffs sued the Federal Defendants seeking, among other things, a declaration that the Individual Mandate, as amended by the TCJA, is unconstitutional and that the remainder of the ACA is inseverable. Am. Compl. 2, ECF No. 27. Their theory is that, because the TCJA eliminated the shared-responsibility tax payment, the tax-based saving construction developed in NFIB no longer applies. Id. at 2-3. Plaintiffs further argue that, as the four joint dissenters reasoned in NFIB , the Individual Mandate is inseverable from the rest of the ACA. Pls.' Br. Prelim. Inj. 35, ECF No. 40 (citing NFIB , 567 U.S. at 691-703,
The Federal Defendants agree the Individual Mandate is unconstitutional and inseverable from the ACA's pre-existing-condition provisions. But they argue all other ACA provisions are severable from the *592mandate. The Intervenor Defendants argue all the Plaintiffs' claims fail.
The Plaintiffs filed an Application for Preliminary Injunction, (ECF No. 39), on April 26, 2018; the Federal Defendants and the Intervenor Defendants responded, (ECF Nos. 91 and 92), on June 7, 2018; and Plaintiffs replied, (ECF No. 175), on July 5, 2018. Because the Federal Defendants argued a judgment, as opposed to an injunction, was more appropriate, the Court provided notice of its intent to resolve the issues in this case on summary judgment. See July 16, 2018 Order, ECF No. 176 (citing FED. R. CIV. P. 56(f)(3) ). The parties responded. See ECF Nos. 177-79.
The Plaintiffs argued they desire a preliminary injunction but are unopposed to "simultaneously considering Plaintiffs' application as a motion for partial summary judgment on the constitutionality of the ACA's mandate." See Pls.' Resp. July 16, 2018 Order, ECF No. 181 (emphasis in original). The Intervenor Defendants opposed converting the preliminary-injunction briefing to a summary-judgment ruling because they wished to more fully brief issues such as Article III standing, the Interstate Commerce Clause, and the scope of injunctive relief. Intervenor Defs.' Resp. July 16, 2018 Order 2, ECF No. 182. At the hearing, the Federal Defendants requested the Court "to defer any ruling until after the close of the open enrollment period which is in mid December, [as] that would ensure that there is no disruption to the open enrollment period." Hr'g Tr. at 30:15-18.
The Court finds the Intervenor Defendants adequately briefed and argued at the September 5, 2018 hearing the standing and Interstate Commerce Clause issues. The Court therefore construes the application as a motion for partial summary judgment.
III. LEGAL STANDARDS
A. Article III Standing
"Every party that comes before a federal court must establish that it has standing to pursue its claims." Cibolo Waste, Inc. v. City of San Antonio ,
"The doctrine of standing asks 'whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.' " Cibolo Waste ,
"Prudential standing requirements exist in addition to 'the immutable requirements of Article III,' ... as an integral part of 'judicial self-government.' " ACORN v. Fowler ,
As the parties invoking jurisdiction, the Plaintiffs must show the requirements of standing are satisfied. See Ramming v. United States ,
B. Summary Judgment
Summary judgment is proper when the pleadings and evidence show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc. ,
When reviewing the evidence on a motion for summary judgment, the court must resolve all reasonable doubts and inferences in the light most favorable to the non-movant. See Walker v. Sears, Roebuck & Co. ,
IV. ANALYSIS
The Court's analysis involves three separate inquiries and conclusions. First, the Court finds the Parties satisfy the applicable standing requirements. Second, the Court finds the Individual Mandate can no longer be fairly read as an exercise of Congress's Tax Power and is still impermissible under the Interstate Commerce Clause-meaning the Individual Mandate is unconstitutional. Third, the Court finds the Individual Mandate is essential to and inseverable from the remainder of the ACA.
A. Article III Standing
No party initially challenged the Plaintiffs' standing. But amici raised the *594issue6 and the Intervenor Defendants addressed it at oral argument. See, e.g. , Hr'g Tr. at 52-58; 64-68. And because Article III standing is a requirement of subject-matter jurisdiction, it cannot be waived. See FW/PBS, Inc. v. City of Dallas ,
The Individual Plaintiffs, who are citizens and residents of the State of Texas, challenge the Individual Mandate as an unconstitutional requirement to purchase ACA-compliant health insurance. They argue they are injured by the "obligation to comply with the individual mandate ... despite the provision's unconstitutionality." Am. Compl. ¶ 43, ECF No. 27. Injury-in-fact must be both particularized and concrete, not conjectural or hypothetical. Spokeo ,
In Contender Farms , a company and its principal, McGartland, challenged a regulation under the Horse Protection Act that required certain entities to suspend horse trainers who engaged in "soring."
Here, the Individual Plaintiffs are the object of the Individual Mandate. It requires them to purchase and maintain certain health-insurance coverage. See 26 U.S.C. § 5000A(a) ; see also Pls.' App. Supp. Prelim. Inj., Ex. A (Nantz Decl.) ¶ 15, ECF No. 41 ("I am obligated to comply with the [ACA's] individual mandate"); Pls.' App. Supp. Prelim. Inj., Ex. B (Hurley Decl.) ¶ 15, ECF No. 41 ("I continue to maintain minimum essential health *595coverage because I am obligated ...."). Cf. Lujan ,
The American Medical Association argues the Individual Plaintiffs have created their own financial injury because they can choose not to comply with the Individual Mandate and, beginning in January 2019, no penalty will be assessed against them. See Br. Am. Med. Ass'n 8-9, ECF No. 113; Hr'g Tr. at 37:9-16. But this argument begs a leading question in this case by assuming the Individual Plaintiffs need not comply with the Individual Mandate. Moreover, a showing of economic injury is not required.
In warning lower courts not to conflate the "actual-injury inquiry with the underlying merits" of a claim, the Fifth Circuit recognizes that standing can be established where a plaintiff alleges that a federal statute or regulation "deters the exercise of his constitutional rights." Duarte , 759 F.3d at 520. Here, the Individual Plaintiffs allege just that. They claim " Section 5000A's individual mandate exceeded Congress's enumerated powers by forcing Individual Plaintiffs to maintain ACA-compliant health insurance coverage." Am. Compl. ¶ 49, ECF No. 27. Intervenor Defendants, meanwhile, contend the Individual Mandate remains a constitutional exercise of Congress's tax or regulatory authority. As a result, the "conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." Babbitt v. United Farm Workers Nat'l Union ,
"Causation and redressability then flow naturally from" the injury created by the Individual Mandate. Contender Farms ,
The Court finds the Individual Plaintiffs have standing to challenge the constitutionality of the Individual Mandate.7 And because the Individual Plaintiffs have standing, the case-or-controversy requirement is met. See Watt v. Energy Action Educ. Found. ,
B. The Individual Mandate
With standing satisfied, the Court "must ... determine whether the *596Constitution grants Congress powers it now asserts, but which many States and individuals believe it does not possess." NFIB , 567 U.S. at 534,
The question of constitutionality is straightforward: Is the Individual Mandate a constitutional exercise of Congress's enumerated powers when the shared-responsibility payment is zero? Because the Supreme Court upheld the Individual Mandate under Congress's Tax Power, the Court will begin there before proceeding to an Interstate Commerce Clause analysis. The Court finds that both plain text and Supreme Court precedent dictate that the Individual Mandate is unconstitutional under either provision.
1. Congress's Tax Power
In NFIB , the Supreme Court held 26 U.S.C. § 5000A to be a constitutional exercise of Congress's Tax Power. Id. at 570,
The Plaintiffs and Federal Defendants say "no." Pls.' Br. 26, ECF No. 40; Fed. Defs.' Resp. 11, ECF No. 92. The Intervenor Defendants, on the other hand, argue § 5000A can still fairly be read as a tax because it continues to satisfy the tax factors discussed in NFIB , including that previous shared-responsibility payments will make their way into the treasury for years to come. Intervenor Defs.' Resp. 16-22, ECF No. 91.
a. Sections 5000A(a) and (b) Are Distinct
It is critical to clarify something at the outset: the shared-responsibility payment, 26 U.S.C. § 5000A(b), is distinct from the Individual Mandate,
Other ACA text and functionality demand §§ 5000A(a) and (b) not be lumped together, too. Most obviously, Congress exempted some individuals from the shared-responsibility penalty but not the Individual Mandate. See 26 U.S.C. § 5000A(e). For example, § 5000A(e)(1) provides that "[i]ndividuals who cannot afford coverage" are exempt from the penalty, but not the mandate. Id. § 5000A(e)(1). "Members of Indian tribes" are also subject to the mandate but not the penalty. See id. § 5000A(e)(3). Congress could not possibly have intended the mandate and penalty to be treated as one when it treated them as two.10
Congress's codified ACA findings support the distinction as well. As the Plaintiffs argue, those "findings identify the individual mandate itself-'[t]he requirement ' to purchase health insurance"-while "making no mention of the separate tax penalty that attaches to some individuals' failure to comply with the mandate." Pls.' Br. 8-9, ECF No. 40 (citation omitted) (emphasis in Plaintiffs' Brief). The Court agrees the findings highlight that Congress believed that, "if there were no requirement "-i.e., no Individual Mandate-"many individuals would wait to purchase health insurance until they needed care."
The 2010 Congress therefore intended the mandate and penalty to be distinct. The 2017 Congress solidified that intent. Section 11081 of the TCJA is entitled "Elimination of shared responsibility payment for individuals failing to maintain minimum essential coverage." TCJA § 11081. This section amends *59826 U.S.C. § 5000A(c) -the provision setting the amount of the shared-responsibility penalty,
As described below, the Supreme Court's Tax Power analysis in NFIB proceeded along these lines-recognizing the Individual Mandate as separate and distinct from the shared-responsibility penalty. This distinction is critical to the Court's remaining legal analysis.
b. Section 5000A(a) Can No Longer Be Sustained as an Exercise of Congress's Tax Power
NFIB does not contravene Congress's intent to separate the Individual Mandate and shared-responsibility penalty. To the extent the Supreme Court held § 5000A could be fairly read as a tax, it reasoned only that the Individual Mandate could be viewed as part and parcel of a provision supported by the Tax Power-not that the Individual Mandate itself was a tax.
The Supreme Court stated its "precedent demonstrate[d] that Congress had the power to impose the exaction in § 5000A under the taxing power"-and § 5000A(b) is the exaction-"and that § 5000A need not be read to do more than impose a tax. That is sufficient to sustain it." NFIB , 567 U.S. at 570,
Put plainly, because Congress had the power to enact the shared-responsibility exaction, § 5000A(b), under the Tax Power, it was fairly possible to read the Individual Mandate, § 5000A(a), as a functional part of that tax also enacted under Congress's Tax Power. Therefore, § 5000Aas a whole could be viewed as an exercise of Congress's Tax Power.
The majority's analysis compels this conclusion.12 In its very first breath under Part III-C, the majority reasoned:
The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The "[s]hared responsibility payment," as the statute entitles it, is paid into the Treasury by "taxpayer[s]" when they file their tax returns. 26 U.S.C. § 5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. § 5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§ 5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which-as we previously explained-must *599assess and collect it "in the same manner as taxes."
NFIB , 567 U.S. at 563-64,
Crucially, after assessing § 5000A(b) against the factors above, the Supreme Court concluded § 5000A"yields the essential feature of any tax: It produces at least some revenue for the Government." Id. at 564,
The Supreme Court thus identified three basic criteria to conclude § 5000A could be viewed as an exercise of the Tax Power: (1) a payment is paid into the Treasury, (2) the payment amount is determined with reference to income and other familiar factors, and (3) the payment produces revenue for the Government. Id. at 563-64,
But the Intervenor Defendants downplay the Supreme Court's most crucial conclusion: § 5000A"yield[ed] the essential feature of any tax: It produce[d] at least some revenue for the Government." NFIB , 567 U.S. at 564,
The Intervenor Defendants argue that "[e]ven if Plaintiffs were correct that a constitutionally-valid tax must produce revenue at all times"-a condition the Supreme Court called essential-"it will be *600years before the shared responsibility payment ceases to do so." Intervenor Defs.' Resp. 21, ECF No. 91. They contend that, due to the frequency of late payments and deferrals, the government will continue to receive revenue from 2018 shared-responsibility payments "until 2020 or beyond."
Intervenor Defendants cite no authority for the proposition that the relevant timeframe to analyze tax revenue is the tax year in which it is remunerated. Plaintiffs reply that "the revenue Intervenor-Defendants identify is attributable to tax year 2018." Pls.' Reply 8 n.9, ECF No. 175.
It is a well-accepted practice that tax revenue is attributable to the tax year in which it is assessed, not the one in which it is paid. See, e.g., NFIB , 567 U.S. at 563,
Finally, the Intervenor Defendants point to three examples of Congress delaying or suspending taxes within the ACA: the Cadillac Tax, the Medical Device Tax, and the Health Insurance Providers Fee. Intervenor Defs.' Resp. 18- 20. Drawing on these examples, the Intervenor Defenders argue "[t]he shared responsibility payment has not been rendered unconstitutional merely because it will be $0 in 2019." Id. at 18.
As an initial matter, suspending or delaying a tax is not equivalent to eliminating it. And the TCJA does not suspend collection of the shared-responsibility payment, it eliminates it. See TCJA § 11081 ("Elimination of shared responsibility payment for individuals failing to maintain minimum essential coverage."). Put differently, until a change in law, there is no shared-responsibility payment. True, Congress may reinstate the payment in the future. But that would be a change in law. The Court cannot rule on a hypothetical counterfactual. It may only "say what the law is," not what it someday could be. Marbury , 5 U.S. at 177.
But at a more fundamental level, the Intervenor Defendants' argument demonstrates they misapprehend the Plaintiffs' basic position. The Intervenor Defendants assert: "The shared responsibility payment has not been rendered unconstitutional merely because it will be $0 in 2019." Intervenor Defs.' Resp. 18, ECF No. 91 (emphasis added). The Plaintiffs do not argue that; they argue the Individual Mandate is unconstitutional. And as the Court has explained, the text of the ACA and TCJA, as well as the Supreme Court's reasoning in NFIB , all hinge on an understanding that the Individual Mandate and the shared-responsibility payment are two very different creatures. The saving construction in NFIB was available only because *601§ 5000A(a) triggered a tax.14 And § 5000A(b) was a tax because it produced some revenue for the Government. Sonzinsky v. United States ,
Under the law as it now stands, the Individual Mandate no longer "triggers a tax" beginning in 2019. So long as the shared-responsibility payment is zero, the saving construction articulated in NFIB is inapplicable and the Individual Mandate cannot be upheld under Congress's Tax Power. See NFIB , 567 U.S. at 574,
2. Congress's Interstate Commerce Power
Because the Individual Mandate can no longer be read as an exercise of Congress's Tax Power, the Court takes up the Intervenor Defendants' argument that the mandate is now sustainable under the Interstate Commerce Clause.
The Constitution grants Congress the power to "regulate Commerce ... among the several States." U.S. CONST. art. 1, § 8, cl. 3. Before NFIB , the Supreme Court had never considered whether Congress's power to regulate interstate commerce allowed it to compel citizens into commerce-i.e., to regulate inactivity . 567 U.S. at 647,
The Plaintiffs argue this issue is decided because the Supreme Court already concluded in NFIB that the Individual Mandate cannot be upheld under the Interstate Commerce Clause. Pls.' Br. 22, ECF No. 40.15 The Intervenor Defendants respond that the Individual Mandate "may now be sustained under the Commerce Clause" because "with a tax of zero dollars, there is no compulsion." Intervenor Defs.' Resp. 18 n.17, ECF No. 91. They argue the constitutional problem identified in NFIB -Congress "compelling the purchase of insurance"-is no longer a problem because a tax of zero dollars imposes no legal consequence on individuals who do not comply with the Individual Mandate.
The Individual Mandate provides: "An applicable individual shall ... ensure that the individual ... is covered under minimum essential coverage ...." 26 U.S.C. § 5000A(a). The Intervenor Defendants argue the provision "gives the individuals the same choice they've always had-to either purchase insurance or pay the tax." Hr'g Tr. at 67:17-19. But the Intervenor Defendants' position is logically self-defeating and contrary to the evidence in this case, the language of the ACA, and Fifth Circuit and Supreme Court precedent.
a. The Intervenor Defendants' Position Is Logically Inconsistent
At the threshold, the Intervenor Defendants hope to have their cake and eat it too by arguing the Individual Mandate does absolutely nothing but regulates interstate commerce. That is, they first say the Individual Mandate "does not compel anyone to purchase insurance." Hr'g Tr. at 37:12. Yet they ask the Court to find the provision "regulate[s] Commerce ... among the several States." U.S. CONST. art. 1, § 8, cl. 3. The Intervenor Defendants' theory, then, is that Congress regulates interstate commerce when it regulates nothing at all. But to "regulate" is "to govern or direct according to rule" and to "bring under the control of law or constituted authority." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1913 (1986). Accepting Intervenor Defendants' theory that the Individual Mandate does nothing thus requires finding that it is not an exercise of Congress's Interstate Commerce Power. Cf. Gibbons v. Ogden , 22 U.S. (9 Wheat.) 1, 189-90,
b. The Intervenor Defendants' Position Contradicts the Evidence
Despite the Intervenor Defendants' logical gymnastics, the undisputed evidence in this case suggests the Individual Mandate fixes an obligation. The Individual Plaintiffs assert they feel compelled to comply with the law. Pls.' App. Supp. Prelim. Inj., Ex. A (Nantz Decl.) ¶ 15, ECF No. 41 ("I value compliance with my legal obligations ... [t]he repeal of the associated health insurance tax penalty did not relieve me of the requirement to purchase health insurance"); Pls.' App. Supp. Prelim. Inj., Ex. B (Hurley Decl.) ¶ 15, ECF No. 41 ("I continue to maintain minimum essential health coverage because I am obligated to comply with the [ACA's] individual mandate"). This should come as no surprise. "It is the attribute of law, of course, that it binds; it states a rule that will be regarded as compulsory for all who come within its jurisdiction." HADLEY ARKES, FIRST THINGS: AN INQUIRY INTO THE FIRST PRINCIPLES OF MORALS AND JUSTICE 11 (1986). Law therefore has an enormous influence on social norms and individual conduct in society. See CONGRESSIONAL BUDGET OFFICE, KEY ISSUES IN ANALYZING MAJOR HEALTH INSURANCE PROPOSALS at 53 (Dec. 2008) (noting compliance "is generally observed, even when there is little or no enforcement"). That is the point.
Undoubtedly, now that the shared-responsibility payment has been eliminated, more individuals will choose not to comply with the Individual Mandate. See CONGRESSIONAL BUDGET OFFICE, REPEALING THE INDIVIDUAL HEALTH INSURANCE MANDATE: AN UPDATED ESTIMATE at 1 (Nov. 8, 2017). And that is likely to undermine Congress's intent in passing the ACA: Near-universal healthcare and reduced healthcare costs. See
c. The Intervenor Defendants' Position Is Contrary to Text and Binding Precedent
And therein lies the rub. The Individual Mandate is law. 26 U.S.C. § 5000A(a). To be precise, the "[r]equirement to maintain minimum essential coverage" is still law.
That the Individual Mandate persists, the Court must conclude, is no mistake. "[I]t is no more the court's function to revise by subtraction than by addition." READING LAW , supra note 9, at 174. The surplusage canon holds that, while "[s]ometimes lawyers will seek to have a crucially important word ignored," courts must "avoid a reading that renders some words altogether redundant" or "pointless." Id. at 174, 176. And this is just as true when parties "argue that an entire provision should be ignored." Id. at 175; see also Yates v. United States , --- U.S. ----,
To accept the Intervenor Defendants' argument that the Individual Mandate does nothing would be doubly sinful under the canon against surplusage-it would require ignoring both the mandatory words of the provision and the function of the provision itself. As to the words of the provision, it is entitled, "Requirement to maintain minimum essential coverage," and provides that "[a]n applicable individual shall ... ensure" that she or he is covered under an appropriate plan. 26 U.S.C. § 5000A(a). These words must be interpreted according to their plain meaning. See United States v. Yeatts ,
The words "requirement" and "shall" are both mandatory. Webster's defines "requirement" as "something required," "something wanted or needed," and "something called for or demanded." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1929 (1986). And it provides the following as the non-archaic meaning of "shall": "used to express a command or exhortation." Id. at 2085. But a plethora of binding caselaw already establishes that there is nothing permissive about a Congressionally enacted requirement that properly16 employs the verbiage "shall." See, e.g. , Fed. Express Corp. v. Holowecki ,
This is precisely why Chief Justice Roberts, in explaining his road to the NFIB majority, noted that the Individual Mandate "reads more naturally as a command to buy insurance." NFIB , 567 U.S. at 574,
But even under the NFIB construct, the Individual Mandate created an obligation.17 As the majority noted, "the individual mandate clearly aims to induce the purchase of health insurance."18 NFIB , 567 U.S. at 567,
The logic of the NFIB construct is that an individual can comply with the law after disobeying the Individual Mandate only by paying the shared-responsibility payment. "The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax."
If an individual can satisfy the law only by satisfying either Condition 1 (the Individual Mandate) or Condition 2 (the tax), then both conditions are equally optional and mandatory. To state it differently, under the NFIB construct, failing Condition 1 no more triggers Condition 2 than failing Condition 2 triggers Condition 1. So, an individual who disobeys the Individual Mandate can satisfy the law only by paying a tax, but an individual who disregards the tax can satisfy the law only by obeying the Individual Mandate. And only in a world where the Individual Mandate were truly non-binding could an individual disobey the Individual Mandate and forego the tax. But under the NFIB majority's construct, that is not the case. That is because logic demands that the Individual Mandate was never-pardon the oxymoron-a non-binding law.
The remainder of the ACA proves that, too. As noted above, § 5000A(e), did and still does exempt some individuals from the eliminated shared-responsibility payment *605but not the Individual Mandate-"a distinction that would make no sense if the mandate were not a mandate." Id. at 665,
At least five Justices agreed the Individual Mandate reads more naturally as a command to buy health insurance than as a tax,19 and those five Justices agreed the mandate could not pass muster under the Interstate Commerce Clause. Given that the Individual Mandate no longer "triggers a tax," the Court finds the Individual Mandate now serves as a standalone command that continues to be unconstitutional under the Interstate Commerce Clause.
* * *
The Court today finds the Individual Mandate is no longer fairly readable as an exercise of Congress's Tax Power and continues to be unsustainable under Congress's Interstate Commerce Power. The Court therefore finds the Individual Mandate, unmoored from a tax, is unconstitutional and GRANTS Plaintiffs' claim for declaratory relief as to Count I of the Amended Complaint.
C. Severability
Since the Individual Mandate is unconstitutional, the next question is whether that provision is severable from the rest of the ACA. The Plaintiffs and the Federal Defendants agree, based on the text of
Notably, the parties dispute which Congress's intent controls-the 2010 Congress that passed the ACA or the 2017 Congress that passed the TCJA. See Pls.' Reply 14, ECF No. 175 (arguing the intent of the 2010 Congress controls); Intervenor Defs.' Resp. 28-30, ECF No. 91 (contending the intent of the 2017 Congress controls); Hr'g Tr. at 43-44. This is a bit of a red herring because, applying the relevant standards, the Court finds both Congresses manifested the same intent: The Individual Mandate is inseverable from the entire ACA.
Because the story begins with the 2010 Congress, the Court begins there as well, analyzing both plain text and Supreme Court precedent. But first, a word about severability doctrine.
1. Severability Doctrine
The doctrine of severability is rooted in the separation of powers. See *606Ayotte v. Planned Parenthood of N. New Eng. ,
Severability, however, is possible only where "an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional."
In light of these background principles, the test for severability is often stated as follows: "Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law."22 Alaska Airlines , 480 U.S. at 684,
So, a court's severability analysis begins with a bread-and-butter exercise: parsing a provision's text and gleaning the ordinary meaning. See Murphy , 138 S.Ct. at 1486 (Thomas, J., concurring) ("Because courts cannot take a blue pencil to statutes, the severability doctrine must be an exercise in statutory interpretation."). If the text reflects Congress's intent that an unconstitutional provision not be severed-i.e., if "it is evident" Congress "would not have enacted those provisions which are within its power, independently of that which is not," Alaska Airlines , 480 U.S. at 684,
If the text does not reflect a clear legislative intent, however, the court must ask whether the constitutional provisions, severed from the unconstitutional one, would remain "fully operative as a law." Free Enterprise , 561 U.S. at 509,
Applying these standards, the Court finds the 2010 Congress expressed through plain text an unambiguous intent that the Individual Mandate not be severed from the ACA. Supreme Court precedent supports that finding. And in passing the TCJA through the reconciliation process, the 2017 Congress further entrenched the intent manifested by the 2010 Congress.
2. The Intent of the 2010 Congress
The Intervenor Defendants contend that, "even if it were proper to consider the legislative intent of the 2010 Congress that passed the minimum coverage provision in its original ... form-and to graft that intent onto a statutory amendment passed by a different Congress-that would still be of no assistance to Plaintiffs." Intervenor Defs.' Resp. 30, ECF No. 91. They first briefly point to the fact that several ACA provisions went into effect before the Individual Mandate. Id. at 31-32. They then argue that, "[i]n light of the ACA's numerous stand-alone provisions addressing a vast array of diverse topics, it is not remotely 'evident' that Congress would want the extraordinary disruption that would be caused by" a finding of inseverability. Id. at 32-33. Finally, the Intervenor Defendants devote ten pages to explaining why the Individual Mandate is specifically severable from the guaranteed-issue and community-rating provisions, arguing Congress intended to end discriminatory underwriting practices and that Congress's findings are irrelevant as they focused on an adverse-selection problem that no longer exists. Id. at 33-43.
a. The ACA's Plain Text
"[T]he touchstone for any decision about remedy is legislative intent, for a court cannot use its remedial powers to circumvent the intent of the legislature."
*608Ayotte ,
The findings state Congress intended to "significantly increas[e] healthcare coverage," "lower health insurance premiums," ensure that "improved health insurance products that are guaranteed issue," and ensure that such health insurance products "do not exclude coverage of pre-existing conditions."
"The requirement," Congress intended, would "achieve[ ] near-universal coverage"-a major goal of the ACA-"by building upon and strengthening the private employer-based health insurance system."
If there were any lingering doubt Congress intended the Individual Mandate to be inseverable, Congress removed it: "The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market."
Congress closed by adding that it intended "the requirement, together with the other provisions," to "significantly reduce administrative costs and lower health insurance premiums."
All told, Congress stated three separate times that the Individual Mandate is essential to the ACA.25 That is once, twice, three times and plainly. It also stated the absence of the Individual Mandate would "undercut" its "regulation of the health insurance market." Thirteen different times, Congress explained how the Individual Mandate stood as the keystone of the ACA. And six times, Congress explained it was not just the Individual Mandate, but the Individual Mandate "together with the other provisions" that allowed the ACA to function as Congress intended.
As the Supreme Court has repeatedly explained, "The best evidence of congressional intent ... is the statutory text that Congress enacted."26 Marx v. Gen. Revenue Corp. ,
On the unambiguous enacted text alone, the Court finds the Individual Mandate is inseverable from the Act to which it is essential.28
b. The Supreme Court's ACA Decisions
While the ACA's plain text alone justifies finding complete inseverability, this text-based conclusion is further compelled by two separate Supreme Court decisions. All nine Justices to address the issue, for example, agreed the Individual Mandate is inseverable from at least the pre-existing-condition provisions.29 In NFIB , Chief Justice Roberts explained "Congress addressed the problem of those who cannot obtain insurance coverage because of preexisting conditions or other health issues ... through the [ ACA's] 'guaranteed-issue' and 'community-rating' provisions." NFIB , 567 U.S. at 547-48,
Justice Ginsburg, joined by Justices Breyer, Kagan, and Sotomayor, agreed. She wrote: "To make its chosen approach work ... Congress had to use some new tools, including a requirement that most individuals obtain private health insurance coverage." Id. at 596,
Based on these lessons, "Congress comprehended that guaranteed-issue and community-rating laws alone will not work ." Id. at 598,
Make that nine Justices. As the joint dissent explained, "Insurance companies bear new costs imposed by a collection of insurance regulations and taxes, including 'guaranteed issue' and 'community rating' requirements to give coverage regardless of the insured's pre-existing conditions." Id. at 695,
In King v. Burwell , the Supreme Court reaffirmed many of the Justices' severability conclusions from NFIB . See --- U.S. ----,
So, after King , the Government31 and all nine Justices had agreed that at least the guaranteed-issue and community-rating provisions "could not work" without the Individual Mandate.32 And all of them cited Congress's findings in reaching that conclusion.
But the reasoning in the above opinions also confirms the Individual Mandate is inseverable from the entirety of the ACA. See, e.g. , King , 135 S.Ct. at 2486 (noting the successful Massachusetts model used by Congress relied not only on a mandate but instead on "[t]he combination of these three reforms-insurance market regulations, a coverage mandate, and tax credits " (emphasis added) ). Notably, the joint dissent in NFIB was the only block of Justices to fully consider severability because it was the only block of Justices to find the Individual Mandate unconstitutional-which is now the controlling framework. And they explained why the Individual Mandate was inseverable from the ACA as a whole. That explanation is consistent with the reasoning offered in the Chief Justice's opinion and in Justice Ginsburg's opinion.
The joint dissent first detailed how "[t]he whole design of the [ACA] is to balance the costs and benefits affecting each set of regulated parties." Id. at 694,
As the joint dissent concluded, "the Act's major provisions are interdependent." Id. at 696,
"In sum, Congress passed the minimum coverage provision as a key component of the ACA ."
c. The Individual Mandate is Inseverable from the Entire ACA
The ACA's text and the Supreme Court's decisions in NFIB and King thus make clear the Individual Mandate is inseverable from the ACA. As Justice Ginsburg explained, "Congress could have taken over the health-insurance market by establishing a tax-and-spend federal program like Social Security." Id. at 595,
Yet the parties focus on particular provisions. It is like watching a slow game of Jenga, each party poking at a different provision to see if the ACA falls. Meanwhile, Congress was explicit: The Individual Mandate is essential to the ACA, and that essentiality requires the mandate to work together with the Act's other provisions. See
Even if the Court preferred to ignore the clear text of § 18091 and parse the ACA's provisions one by one, the text- and precedent-based conclusion would only be reinforced: Upholding the ACA in the absence of the Individual Mandate would change the "effect" of the ACA "as a whole." See Alton ,
The story is the same with respect to the ACA's other major provisions, too. The ACA allocates billions of dollars in subsidies to help individuals purchase a government-designed health-insurance product on exchanges established by the States (or the federal government). See, e.g. , 26 U.S.C. § 36B ;
Nor did Congress ever contemplate, never mind intend, a duty on employers, see 26 U.S.C. § 4980H, to cover the "skyrocketing insurance premium costs" of their employees that would inevitably result from removing "a key component of the ACA." (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.). And the Medicaid-expansion provisions were designed to serve and assist fulfillment of the Individual Mandate and offset reduced hospital reimbursements by aiding "low-income individuals who are simply not able to obtain insurance." Id. at 685,
The result is no different with respect to the ACA's minor provisions. For example, the Intervenor Defendants assert that, "[i]n addition to protecting consumers with preexisting medical conditions, Congress also enacted the guaranteed-issue and community-rating provisions to reduce administrative costs and lower premiums." Intervenor Defs.' Resp. 35, ECF No. 91; see also id. at 34 ("Congress independently sought to end discriminatory underwriting practices and to lower administrative costs."). But Congress stated explicitly that the Individual Mandate "is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs ."
Perhaps it is impossible to know which minor provisions Congress would have passed absent the Individual Mandate. But the level of legislative guesswork entailed in reconstructing the ACA's innumerable trade-offs without the one feature Congress called "essential" is plainly beyond the judicial power. See Alton ,
In sum, the Individual Mandate "is so interwoven with [the ACA's] regulations that they cannot be separated. None of them can stand." Wallace ,
* * *
Neither the ACA's text nor Supreme Court precedent leave any doubt. The 2010 Congress never intended the ACA "to impose massive new costs on insurers" while allowing widespread "cost shifting." Id. at 548,
Historical context confirms Congress would not have enacted the ACA absent the constitutional infirmities.33 See Free Enterprise , 561 U.S. at 509,
This tells the Court all it needs to know. Based on unambiguous text, Supreme Court guidance, and historical context, the Court finds "it is evident that the Legislature would not have enacted" the ACA "independently of" the Individual Mandate. Alaska Airlines , 480 U.S. at 684,
In the face of overwhelming textual and Supreme Court clarity, the Court finds "it is 'unthinkable' and 'impossible' that the Congress would have created the" ACA's delicately balanced regulatory scheme without the Individual Mandate. Alton ,
3. The Intent of the 2017 Congress
Looking for any severability-related intent in the 2017 Congress is a fool's errand because the 2017 "Congress did not repeal any part of the ACA, including the shared responsibility payment. In fact, it could not do so through the budget reconciliation procedures that it used." Hr'g Tr. at 36:7-10 (Intervenor Defendants); accord
But suppose it is true the intent of the TCJA-enacting Congress of 2017 controls severability rather than the intent of the ACA-enacting Congress of 2010. The Intervenor Defendants argue the Court should infer that, by eliminating the shared-responsibility payment while leaving the rest of the ACA intact, the 2017 Congress intended to preserve the balance of the ACA. Intervenor Defs.' Resp. 28-30, ECF No. 91; Hr'g Tr. at 42:10-11 ("The 2017 Congress that amended § 5000A(c) deliberately left the rest of the ACA intact ....").
But consider what Congress did not do in 2017-or ever. First and foremost, it did not repeal the Individual Mandate. As the Court described in great detail, see supra Part IV.B.1.a, the shared-responsibility payment is not the Individual Mandate. That matters. The Individual Mandate, not the shared-responsibility payment, is "essential" to the ACA. See
Secondly, the 2017 Congress did not repeal
The Intervenor Defendants thus ask the Court to infer a severability-related intent from a Congress that did not and could not amend the ACA and that therefore did not and could not repeal the Individual Mandate or the enacted text stating the mandate is "essential" to the whole scheme when working "together with the other provisions." They then ask the Court "to graft that intent" onto the Congress that did pass the ACA, that did employ the Individual Mandate as the keystone, and that did memorialize its intent through enacted text stating the Individual Mandate is essential.
The Court finds the 2017 Congress had no intent with respect to the Individual Mandate's severability. But even if it did, the Court would find that "here we know exactly what Congress intended based on what Congress actually did." Hr'g Tr. at 42:8-10 (Intervenor Defendants). If the 2017 Congress had any relevant intent, it was to preserve § 18091 and to preserve the Individual Mandate, which the 2017 Congress must have agreed was essential to the ACA.
*6184. Severability Conclusion 34
In some ways, the question before the Court involves the intent of both the 2010 and 2017 Congresses. The former enacted the ACA. The latter sawed off the last leg it stood on. But however one slices it, the following is clear: The 2010 Congress memorialized that it knew the Individual Mandate was the ACA keystone, see
"The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the documents that they drafted in Philadelphia in the summer of 1787." Chadha ,
The Court finds the Individual Mandate "is essential to" and inseverable from "the other provisions of" the ACA.
V. CONCLUSION
For the reasons stated above, the Court grants Plaintiffs partial summary judgment and declares the Individual Mandate, 26 U.S.C. § 5000A(a), UNCONSTITUTIONAL. Further, the Court declares the remaining provisions of the ACA, Pub. L. 111-148, are INSEVERABLE and therefore INVALID . The Court GRANTS Plaintiffs' claim for declaratory relief in Count I of the Amended Complaint.
SO ORDERED on this 14th day of December, 2018 .
Footnotes
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