A Mandate or a Choice?
NFIB v. Sebelius is more than eight years old. To this day, a disagreement exists over what precisely the case held. Did NFIB hold that the ACA provides people with a lawful “choice” to purchase insurance or pay a tax? Or did NFIB hold that the ACA imposes an unconstitutional mandate that could be saved by reading the statute as giving people a lawful “choice” to purchase insurance or pay a tax? During oral argument in California v. Texas, Justice Kagan took the former view. And Texas Solicitor General Kyle Hawkins took the latter view.
Consider this colloquy:
JUSTICE KAGAN: Yes, Mr. Hawkins, continuing on, on the merits, I –I’m not sure I understand the position. In NFIB, we held that the ACA –that the ACA was not an unconstitutional command. So I would think that that has to be the starting point. Now, since then, there has been the change –this change, and –and –and –and in this change where Congress reduces the penalty to zero, Congress has made the law less coercive. So how does it m
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