Footnote 3 of Texas v. U.S. should be removed from the final published opinion
Last night, I wrote a three-part series on the Fifth Circuit’s ACA decision. I agree with much of the opinion. But on further reflection, I agree with a criticism from co-blogger Steve Sachs and Nick Bagley: Footnote 3 is inappropriate.
Some opponents of the ACA assert that the goal was not to lower health insurance costs, but that the entire law was enacted as part of a fraud on the American people, designed to ultimately lead to a federal, single-payer healthcare system. In a hearing before the House Committee on Oversight and Government Reform, for example, Representative Kerry Bentivolio suggested that Jonathan Gruber, who assisted in crafting the legislation, had “help[ed] the administration deceive the American people on this healthcare act or [told] the truth in [a] video . . . about how [the Act] was a fraud upon the American people.” Examining Obamacare Transparency Failures: Hearing Before the H. Comm. on Oversight and Government Reform, 113th Cong. 83 (2014) (statement of Rep. Kerry Bentivolio).
The footnote accurately quotes a Committee Report about Obamacare. But there is no reason to include this passage, or to explain what “some opponents of the ACA” thought. This footnote–an unforced errror–takes away from the otherwise sober approach of the decision.
Recently, another member of the Fifth Circuit, Judge Don Willett, reconsidered his opinion in an important First Amendment case. The majority here should remove Footnote 3 from the final published opinion.
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