The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On November 10, the Supreme Court will hear oral argument in California v. Texas and Texas v. California, the latest Affordable Care Act case to reach the High Court. In this case, a group of states led by Texas is arguing that Congress rendered the individual mandate unconstitutional by zeroing out the tax penalty for failing to purchase qualifying health insurance, and that this legal infirmity requires invalidation of the entire ACA. The Department of Justice is largely supporting this position, while another group of states and the House of Representatives are suing to defend the law.
In an order issued today, the Supreme Court expanded oral argument in order to allow both the Solicitor General and House of Representatives time to present their arguments. Under this order, the oral argument will proceed as follows:
- 30 minutes for California, et al. (the states defending the ACA)
- 10 minutes for the House of Representatives
- 20 minutes for the Solicitor General
- 20 minutes for Texas, et al. (the states and individuals challenging the ACA)
Although another group of states—Ohio and Montana—sought argument time too, this request was denied. These two states filed one of the over 40 amicus briefs filed in this case (all of which may be found on SCOTUSBlog here).
Three amicus briefs feature contributions from VC bloggers:
- An academic amicus brief of Nicholas Bagley, Abbe Gluck, Ilya Somin and yours truly, arguing that the individual mandate is completely severable from the rest of the ACA.
- A second academic amicus brief by Samuel Bray, Michael McConnell and Kevin Walsh arguing the courts lack statutory subject-matter jurisdiction to hear the case.
- An amicus brief from the Cato Institute authored by Josh Blackman supporting the individual plaintiffs.
California v. Texas will be the seventh ACA case to reach the Supreme Court, but it is unlikely to be the last. The ACA's history and structure created a perfect storm for ongoing litigation, for reasons I explained in this little paper from a few years back. If anything, the factors encouraging ongoing litigation have only multiplied. Litigation continues in lower courts over a range of questions, most concerning the law's implementation, and some of these cases will likely end up at One First Street.
For those interested in more on the latest case, here is a list of my prior VC posts on the case, and a few NYT op-eds.
- The Clever Red State Lawsuit Against the Individual Mandate, and the Justice Department's Disappointing Response—6/11/18
- Strange Bedfellows Join on Severability in the Latest ACA Case—6/14/18
- How Do the States Have Standing to Challenge an Unenforced and Unenforceable Mandate?—6/15/18
- An Obamacare Case So Wrong It Has Provoked a Bipartisan Outcry (w/ Abbe Gluck), New York Times, 6/19/18
- Meanwhile, in a Texas Courtroom, Is the ACA in Trouble?—9/6/18
- BREAKING: District Court Judge in Texas Holds ACA Is Unlawful—12/14/18
- What the Lawless Obamacare Ruling Means (w/ Abbe Gluck), New York Times, 12/15/18
- Understanding Why Judge O'Connor Was Wrong to Conclude Plaintiffs Had Standing to Challenge the Penalty-Less Individual Mandate—12/21/18
- Court Stays Ruling Invalidating the Affordable Care Act Pending Appeal—12/31/18
- Justice Department Revises Its Position in Texas ACA Case—3/25/19
- Does Anyone Support DOJ's Position in the Texas ACA Case?—3/29/19
- Another Round of Strange Bedfellows on Severability in Texas v. U.S.—4/1/19
- Fifth Circuit Adds New Wrinkle to Texas ACA Case—6/26/19
- The ACA Cases Continue—7/1/19
- On the Eve of Oral Argument in Texas v. U.S.—7/8/19
- Where Is the Fifth Circuit's Opinion in the Texas ACA Case? [Updated]—12/16/19
- BREAKING: Fifth Circuit Declares Individual Mandate Unconstitutional, Punts on Whether Rest of ACA Must Fall (Updated)—12/18/19
- Can Courts Consider Severability Before Other Questions?—1/22/20
- Red State Challenge to Affordable Care Act Goes to SCOTUS (But the Arguments Remain Incredibly Weak) (Updated)—3/2/20
- Will the Trump Administration Finally Abandon Its Bizarre Position in the Texas ACA Case? (Update: No)–5/5/20
- The Penalty-less Individual Mandate Is Severable from the Rest of the ACA No Matter How You Look at It.–5/14/20
I'll have more to say about the merits and some of the briefs in the days to come.