Affordable Care Act

The ACA Cases Continue (Updated)

The U.S. Court of Appeals for the Fifth Circuit hears oral argument in Texas v. US on July 9, and SCOTUS will revisit the ACA next term.

|The Volokh Conspiracy |

On July 9, at 1pm Central time, the U.S. Court of Appeals for the Fifth Circuit will hear oral argument in Texas v. United States, the latest effort to have the Affordable Care Act struck down in federal court. The panel hearing the case (announced this morning) consists of Senior Judge Carolyn Dineen King, Judge Jennifer Walker Elrod, and Judge Kurt D. Englehardt. Audio of the oral argument should be posted later that afternoon.

Many commentators have evaluated this case through a partisan prism, assuming that the best way to predict the outcome is simply by looking at the partisan affiliation of the Presidents who nominated the judges. I think this is mistaken for multiple reasons.

First, unlike the prior ACA cases to reach the Supreme Court, the underlying arguments advanced by the plaintiffs are not well grounded in conservative jurisprudential principles. Whereas the arguments in NFIB and King were rooted in aggressive enumerated powers and textualist jurisprudence, the arguments here actually cut against traditional conservative approaches to justiciability (standing in particular) and severability. As a consequence, there is less fertile ground in which the case can take root.

Second (and somewhat related), the arguments advanced by the red-state plaintiffs have not garnered support within the conservative legal or political establishment. Conspicuously absent from the filings before the Fifth Circuit are briefs from Republican lawmakers or the conservative legal intelligensia. Even more conspicuously, prominent conservative political and legal figures—including Michael McConnell and Ohio AG Dave Yost—have filed briefs on the other side. At the same time, noted ACA critics, such as the Cato Institute's Michael Cannon, have also been quite critical of the red-state arguments. This is further evidence of the weak and unorthodox nature of the plaintiffs' arguments, and this fact is unlikely to be lost on the judges hearing the case. What this means is that Texas v. US is more like the Origination Clause challenge to the ACA than it is like NFIB or King.

As regular VC readers know, I've blogged on this litigation extensively and contributed to amicus briefs before the district and circuit courts. Here's a listing of my prior posts on this litigation:

I've also co-authored two New York Times op-eds on the case with Abbe Gluck, available here and here.

[UPDATE: On July 1, the plaintiff states (Texas, et al.) requested an extension  to file supplemental briefs on the issues raised in the Fifth Circuit's June 26 order, including whether the Justice Department's change of position in the case deprived the Fifth Circuit of appellate jurisdiction, and asked for a delay in oral argument to accommodate the need for such additional briefing.  It was, shall we say, an audacious request. The intervenors opposed the motion. On July 2, the Fifth Circuit extended the deadline for supplemental briefing from July 3 to July 5, and denied the request to reschedule the oral argument.]

Texas v. US is not the only ACA case in town. While folks were focused on the Census, redistricting, and cross cases, the Supreme Court accepted certiorari in a trio of cases concerning whether the federal government owes health insurance companies risk corridor subsidy payments. The ACA declares that insurance companies are entitled to such money, but Congress pointedly refused to appropriate the money, and adopted an appropriations rider saying no money could be spent to fulfill this obligation. A divided U.S. Court of Appeals for the Federal Circuit rejected the insurance companies' claims. At stake is a good bit of money—$12 billion—in addition to broader principles about appropriations law, and the ability of Congress to use appropriations riders to alter legal or financial obligations contained in previously enacted statutes.

Nicholas Bagley has more background on these cases here.

 

 

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  1. “the arguments advanced by the red-state plaintiffs have not garnered support within the conservative legal or political establishment.”

    Whatever would we do without the establishment? They’ve done so well for us, and now they’re getting left behind!

    1. Yes, shooting from the hip is ever superior to a well coordinated message when you’re advocating for something.

      1. The Establishment has made it peace with Obamacare, just like it will with “medicare for all” it that ever passes.

        The Conservative establishment has conserved very little.

        1. Obamacare is the only thing standing between us and Medicare for All! Obama looks like Ronald Reagan compared to these nuts running for the Democrat nomination!?! If you want to refute these current Democrats just use quotes from Obama.

        2. Pish tosh. The conservative establishment is still dead-set against the ACA. Hence the continued lack of medicaid expansions.

          Prof. Somin is no fan of the ACA. There are lots of other cases going on as well.

          But don’t let me stop you from shooting yourself in the foot and deciding that was your slower foot anyhow.

          1. Not a Somin post.

            Rhetorical opposition only. If they really wanted to kill it, they could have in 2017.

            Action speak louder than words.

            As for this case, you never know when a long shot will pay off.

            You miss 100% of the shots you never take. [attributed to Wayne Gretzky]

            1. Why not, Bob?

              After all, Trump is just waiting with a better, cheaper, more sensible plan that covers way more people.

              Isn’t he?

        3. “The Establishment has made it peace with Obamacare, just like it will with “medicare for all” it that ever passes.”

          You forgot to mention Social Security, gay marriage, interracial marriage, desegregated schools, literacy test bans, poll tax bans, the franchise for women . . .

          1. Don’t forget eugenics, which the American establishment was fine with until some Austrian jerk ruined it for everyone.

            1. There’s actually a lot to be said for Eugenics. Or rather, a lot to be said against its absence.
              Take a look at any IQ map of the world and try to argue that there’s no hereditary component to intelligence – or civilization for that matter.

              1. It’s weird that you believe that eugenics is a good idea just because intelligence is heritable.

          2. I haven’t personally made peace with Social Security. No matter how often it’s patched up, it’s still a Ponzi scheme waiting to collapse.

            As for interracial marriage, desegregated schools, literacy test bans, poll tax bans, the franchise for women — I’m glad to see that Democrats have gradually made peace with all those things…..although I really wish they’d stop trying to make us slaves of the State. (They still haven’t been able to let go of that desire, even despite losing that one war they started when a Republican they didn’t like became President.)

  2. I don’t think the Moops case was grounded in any real jurisprudential principles either. No serious legsl thinker believes “Congress made a drafting error, ergo everyone is screwed”.

  3. “Congress pointedly refused to appropriate the money, and adopted an appropriations rider saying no money could be spent to fulfill this obligation.”

    A reversal by John Roberts would mean the end of 500 years of Anglo-American history where the legislature controls the purse.

    It would be a judicial power grab, so its likely to happen,

    1. Is it also part of that history that private parties are entitled to rely on the promises of the legislature?

      1. Promises? Funny.

        “No man’s life, liberty or property are safe while the Legislature is in session.” [Gideon John Tucker]

    2. But funding the wall over Congress’ objection is just normal Presidentin’?

      1. Congress passed emergency declaration laws. It shouldn’t be a surprise that presidents will try to use them

        1. Congress has also passed appropriations for money to be paid for losing a law suit. If under the law the government is require to pay then they win the lawsuit and are awarded damages to be paid from that fund.

  4. To be fair, the “conservative legal establishment” has also argued that (a) states experiencing a real injury because of the ACA do not have standing; (b) the Federal Government cannot refuse to appeal a case; (c) States have the right to intervene to defend a case that the Federal Government believes to be unconstitutional; (d) a penalty is not a tax unless it needs to be; and (e) if provisional X saves a law from being declared unconstitutional, Congress subsequently repealing provision X doesn’t make the law unconstitutional.

    Unfortunately, Trump Law continues to displace the traditional Common Law.

    1. “(e) if provisional X saves a law from being declared unconstitutional, Congress subsequently repealing provision X doesn’t make the law unconstitutional.”

      X was the thing that allegedly made it unconstitutional in the first place, too. If you remove the mandate, there’s no economic inactivity that is being mandated, and hence no commerce clause issue in the first place.

      1. You don’t believe in phantom mandates?

        1. No, of course not, they introduced the insufferable Jar-Jar character.

    2. (d) a penalty is not a tax unless it needs to be

      If you have to pay money to government because your heart is beating, it is a tax

  5. I have a sneaking suspicion that the Supreme Court will decide this case at the same time as one of the sex-discrimination-includes-sexual-orientation-discrimination cases to hold that, right or left, you have to interpret statutes based on what Congress said, and not based on what you think they should have said, really intended to say but couldn’t get the votes, etc.

    The “Congress” the courts have to deal with is the entire body acting as a body, not just the reasonable people or the obviously right opinion within in it.

  6. As they should continue. The “conservative legal establishment” is not behind this because it hits on past failures of courts to do their jobs.

    This ACA case is actually easy (just like the last two to hit the SC): strike it down. Problem solved.

    1. Indeed. The Supreme Court should have put a stake through ACA’s heart the first time it came before Congress.

      Heck, that should have happened merely because it introduced a tax, but originated in the Senate (despite gutting a completely unrelated House bill just so that they could claim it came from the House).

  7. […] But here we are. For those of you looking to come up to speed, I’ve pulled together my writings on the case since it was first filed. (Jonathan Adler, who’s also written extensively about the case, has pulled together a similar compilation.) […]

  8. […] against the Affordable Care Act. The lawsuit’s argument has been denounced as profoundly absurd even by opponents of the law, but a Texas judge ruled against the ACA, and the appeal will be heard this […]

  9. […] against the Affordable Care Act. The lawsuit’s argument has been denounced as profoundly absurd even by opponents of the law, but a Texas judge ruled against the ACA, and the appeal will be heard this […]

  10. […] against the Affordable Care Act. The lawsuit’s argument has been denounced as profoundly absurd even by opponents of the law, but a Texas judge ruled against the ACA, and the appeal will be heard this […]

  11. […] against the Affordable Care Act. The lawsuit’s argument has been denounced as profoundly absurd even by opponents of the law, but a Texas judge ruled against the ACA, and the appeal will be heard this […]

  12. […] Supreme Court, and it very well might again. Despite the fact that this current case is so specious even opponents of the law call it ridiculous, it’s made it to a federal circuit court, one step away from the Supreme […]

  13. […] Supreme Court, and it very well might again. Despite the fact that this current case is so specious even opponents of the law call it ridiculous, it’s made it to a federal circuit court, one step away from the Supreme […]

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