NFIB v. Sebelius Already Addressed the "Injury in Fact" Question in Texas v. U.S.

An important element of standing has already been decided by the Court


[Note: This post was coauthored with Professor Josh Blackman.] In an earlier post, Josh noted that Texas v. U.S. reminded him of the film Groundhog Day: "the same script repeats itself over and over again, in slightly different contexts." Indeed, questions Chief Justice Roberts and Justice Kagan asked in 2012 augured, with a remarkable degree of clarity, two issues presented in Texas v. U.S.  First, is the mandate separate from the penalty? Second, would someone who is subject to the mandate, but not the penalty, have standing? Josh covered the arguments about these issues on pp. 176-184 of his 2012 book, Unprecedented. Read those pages first, then come back to this post. Still didn't click? Then-Judge Kavanaugh makes a cameo. Go on, click. We'll wait. 

Welcome back. On Monday, March 26, 2012, Greg Katsas (now a judge on the D.C. Circuit) argued before the Supreme Court on behalf of NFIB concerning the Anti-Injunction Act question presented. Most people focused on the second day, which considered the constitutional basis of the mandate. However, the first day proved to be the most pivotal for the saving construction. More importantly, for our purposes, it was also a critical day for the issue of standing.

Justice Kagan raised this issue during oral argument in a way that affects the standing issue in Texas. She asked:

Justice Kagan: Mr. Katsas, do you think a person who is subject to the mandate but not subject to the penalty would have standing? 

This question, with precision, addresses the facts presented in Texas: the private plaintiffs are subject to the mandate, but do not have to pay a penalty for going uninsured. But, as Justice Kagan's question shows, this dynamic is not new. Indeed, even in 2012, there were some people who were subject to the mandate, but were statutorily exempt from having to pay the penalty: (1) individuals who could not afford coverage, (2) taxpayers with income below the filing threshold, (3) members of Indian tribes, (4) people with short gaps in coverage, and (5) those who have "suffered a hardship" as defined by the Secretary.

Katsas answered that for such people, the mandate standing by itself still causes an injury-in-fact. 

Mr. Katsas: Yes, I think that person would, because that person is injured by compliance with the mandate. 

Justice Kagan: What would that look like? What would the argument be as to what the injury was? 

Mr. Katsas: The injury—when that person is subject to the mandate, that person is required to purchase health insurance. That is a forced acquisition of an unwanted good. It's a classic pocketbook injury. 

Consider the declarations of the two private plaintiffs from NFIB, Mary Brown and Kaj Ahlburg. Mary Brown, for example, wrote that she "will be harmed if I am required to obtain and maintain such insurance, which I neither need nor want, or to pay the prescribed penalties for non-compliance." Starting in 2014, the payment of the penalty could have caused a separate Article III injury. 

But when the case was being litigated, the penalty had not yet been assessed. Rather, standing was premised on the mandate. Brown wrote, "to comply with the individual insurance mandate, and well in advance of 2014, I must now investigate whether and how to rearrange my personal finance affairs." She added, "in order to comply with the individual mandate I believe that I would have to plan and take appropriate action before 2014 so as to meet its requirements if I am to avoid being penalized for not comply when this requirement becomes effective." 

As a general matter, a Plaintiff only has standing to challenge a specific provision of law that provision injures her. The overbreadth doctrine in the First Amendment context serves as an exception to this general rule. It allows persons whose speech may constitutionally be restricted by a statute, and who therefore are not injured, to challenge the statute on the ground that it also reaches the protected speech of others. Ordinarily, however, if you are not injured by a particular provision, you lack standing to challenge it.

The sole basis for Brown's Article III injury was the mandate–not the penalty. Indeed, the government's motion to dismiss in NFIB argued that the private Plaintiffs lacked standing because "the minimum coverage provision . . . will not take effect until 2014 [4 years later] and it is entirely speculative whether the individual plaintiffs will be injured" (page 22) by "the provision." DOJ did not mention in its discussion of standing the role that the penalty, which also would not be collected until 2014, played in the standing analysis. The District Court agreed with the Plaintiffs' arguments. Judge Vinson ruled that Brown and Ahlburg showed they had an injury "because of the financial expense [they would] definitively incur under the Act in 2014," and they needed "to take investigatory steps and make financial arrangements now to ensure compliance then." Once again, there was no discussion of the penalty.

The private plaintiffs maintained this posture throughout the litigation. Their Supreme Court brief explained: "Here, likewise, Private Respondents are not preemptively defending against the 'penalty' that § 5000A(b) would impose [in 2014] if they were to violate the mandate, but instead are attacking § 5000A(a)'s unconditional legal "[r]equirement" to purchase insurance in the first place." 

Indeed, the penalty could not provide the injury-in-fact because the Plaintiffs never planned to pay the penalty. Why? Brown and Ahlburg were "law-abiding citizens who intend to comply with the mandate unless it is invalidated." That is why they challenged the mandate–the penalty could never injure them! 

Earlier in the argument, Greg Katsas elaborated on this theme in a colloquy with Chief Justice Roberts:

Chief Justice Roberts, Jr.:  Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing. 

Critics of the Texas litigation likewise routinely describe the mandate as "toothless." Katsas replied in much the same way that the Texas plaintiffs respond. 

Mr. Katsas: Because Congress reasonably could think that at least some people will follow the law precisely because it is the law.

Indeed, in support of this claim, the NFIB brief cited the 2008 Congressional Budget Office report, which found that "many individuals . . . would comply with a mandate, even in the absence of penalties, because they believe in abiding by the nation's laws." (Josh discussed that CBO report here.) The brief added, "That finding readily confirms the common-sense proposition that the interest of law-abiding citizens [like Brown and Ahlburg] in challenging burdensome legal requirements exists independently of the sanction that would be imposed for non-compliance." (This argument is precisely the same argument that the Texas plaintiffs advance.)

Some critics, both then and now, think that Katsas's argument was wrong–maybe even silly. During oral argument, Chief Justice Roberts seemed genuinely skeptical. But in his written opinion, Roberts put his skepticism aside. Though he did not directly address the standing question, he had to accept NFIB's position to reach the merits of the challenge to § 5000A(a). Otherwise, the Plaintiffs would have lacked standing to challenge the mandate, and only the mandate in 2010 when the case was filed.  But he did not dismiss the case due to a lack of standing. Part III.A of his opinion is necessarily premised on the fact that people are injured by a purchase mandate that has no collateral consequences. 

In Part III.A, Chief Justice Roberts concluded that the mandate to purchase insurance cannot be supported by Congress's powers under the Commerce and Necessary and Proper Clauses. That is, he rejected the government's argument that "Congress may order individuals to buy health insurance because the failure to do so affects interstate commerce, and could undercut the Affordable Care Act's other reforms." 

However, in this section–which stretches nearly ten pages in length–Chief Justice Roberts makes no mention whatsoever of the penalty. He also does not discuss what would be the crux of Part III.C: that there were no "no legal consequences" for going uninsured. In Part III.A, Roberts necessarily assumes–contrary to the Solicitor General's representation–that under the natural reading of the statute, it is  unlawful to go uninsured, even if there are no collateral consequences for doing so other than being a law breaker. 

Greg Katsas, arguing on behalf of NIFB, operated on the presumption that this mandate would induce some people to purchase insurance. We read Part III.A of the Chief Justice's opinion as consistent with Katsas's legal argument in NFIB: the mandate and the penalty are separate legal provisions. That is, the mandate stands alone as a command to buy insurance–not having insurance would be unlawful–regardless of whatever collateral legal consequences may follow from engaging in this unlawful (in)activity. And that mandate, by virtue of its enactment, is unconstitutional. 

Simply stated, in Part III.A of the controlling opinion, the only possible basis for the private plaintiffs' standing was the injury caused by the mandate, and the mandate alone–that is, by making it unlawful to be uninsured. In Part III.A, the plaintiffs' standing to challenge the requirement was not made to turn on any injury inflicted by the penalty. 

Indeed, because the provisions were separate, standing to challenge § 5000A(b) would not have enabled the plaintiffs to piggyback a challenge § 5000A(a). Parties need an independent basis to challenge distinct portions of the law. It was the legal requirement or duty to have insurance, not the penalty for failing to insure, that imposed a burden in the business owners represented by NFIB. 

Stated differently, standing to challenge the penalty would not have allowed the plaintiffs to challenge the mandate as a separate legal requirement. Part III.A of Roberts's opinion only works if Katsas was correct, and the "forced acquisition of an unwanted good," in the absence of a penalty, was an injury in fact. Roberts, implicitly at least, adopted NFIB's theory of standing: the mandate cause an injury in fact. 

How does this history affect the current litigation? The private plaintiffs in NFIB and the private plaintiffs in Texas assert the same injury. The first Texas plaintiff, John Nantz, declared, "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." The second plaintiff, Neill Hurley, added, "I continue to maintain minimum essential health coverage because I am obligated to comply with the [ACA's] individual mandate." 

The Texas plaintiffs suffer an injury-in-fact for the same reason that the NFIB plaintiffs suffered an injury-in-fact: the mandate imposes a legal obligation to purchase insurance, without regard to any collateral legal consequences. Indeed, the Texas plaintiffs have a far more imminent injury in fact: they need to maintain insurance now, whereas the NFIB plaintiffs had to make financial arrangements in the present to purchase insurance in the future. 

Chief Justice Roberts's recent decision in the census case may also bear on this analysis. A recent 28(j) letter by the private plaintiffs in Texas explains why:

But the Court held that plaintiff states had "met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully." Slip op. 10. Similarly, here, Individual Plaintiffs' purchase of minimum essential coverage is a likely and predictable reaction to 26 U.S.C. § 5000A(a)'s legal command. Indeed, if the "predictable effect of Government action" (slip op. 11) on private decisionmakers is sufficient to establish traceability for standing even when those decisions are unlawful, the Individual Plaintiffs' lawful decisions to comply with the individual mandate are an even more likely and predictable reaction. The Court relied on evidence introduced at trial that "noncitizen households have historically responded to the census at lower rates than other groups." Slip op. 10. Likewise, plaintiffs' briefs point to similarly objective evidence in the form of two CBO reports (from 2008 and 2017) concluding that some individuals will comply with the mandate absent penalties.

We recognize that the other elements of the standing inquiry may be different in Texas, but Part III.A of NFIB resolved the injury-in-fact question for Nantz and Hurley. 

The penalty, however, was important for two other aspects of NFIB. First, if the penalty was in fact a tax, then the Anti-Injunction Act (AIA) provided a statutory bar: suits to enjoin the collection of that revenue could not be filed until the tax was assessed in 2014. The Court agreed with the Solicitor General, and ruled that the penalty, at least for purposes of the AIA, was not a tax. Yet, once the Court cleared the AIA's statutory jurisdictional hurdle, the Plaintiffs would still need to prove that they suffered an injury-in-fact. In 2012, the only possible injury was preparing to comply with the mandate. 

Of course, as we discussed in our previous post, the penalty played a second important role in the so-called saving construction.  Specifically, in Part III.B of NFIB, Chief Justice Roberts turned to the government's alternate argument based on the taxing power: "Instead, the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product." Chief Justice Roberts concluded that "[t]he most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals 'shall' maintain health insurance." However–and this is a huge however–the mandate can be read "as imposing a tax . . .  for the reasons set forth below" in Part III.C. 

Why is this framing of the alternate argument so critical? Because if the reasons "set forth in" Part III.C no longer hold, then the saving construction supported there is now inapplicable. And indeed, Josh explained here why the saving construction no longer holds. This conclusion is both obvious and well nigh undeniable: (a) a $0 mandate cannot raise revenue, so (b) the "penalty" cannot be upheld as a tax," therefore (c) Chief Justice Roberts's analysis in Part IIIA now applies full force. Namely, his acceptance of NFIB's argument that the standalone mandate is unconstitutional, regardless of the penalty. And the basis for standing in that portion of the opinion is the mandate, and the mandate alone. 

Stated simply, Roberts's skeptical questions for Katsas in oral argument, which formed the basis of his saving construction in Part III.C, did not impact, in the least, his Commerce and Necessary and Proper Clause analysis in Part III.A (which we discussed in our previous post). This subtle point–which affects both the standing and merits question–has been lost in virtually all of the discourse about NFIB, and Texas

This conclusion brings us to Judge O'Connor's analysis. He wrote:

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"). 

Judge O'Connor accurately restated Judge Katsas's argument on behalf of NFIB. Although Chief Justice Roberts asked questions about this position during oral argument, in Part IIIA of his written opinion, he assumed that Katsas's analysis was valid. Judge O'Connor continues:

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." . . .  But the fact that many individuals will no longer feel bound by the Individual Mandate does not change either that some individuals will feel so bound—such as the Individual Plaintiffs here—or that the Individual Mandate is still law.

Judge O'Connor's ruling, on both injury-in-fact and the constitutionality of the mandate, is completely consistent with NFIB. Indeed, these topics are closely related. If the mandate does create a legal requirement, then it also creates an injury-in-fact. Under Part III.A of NFIB, the mandate performed both functions in 2012, and still performs both functions today. 

Let's sum up this series of blog posts. Texas v. U.S. raises three challenges to the ACA:

  1. the constitutionality of the individual insurance "requirement" or mandate, after the "penalty" cum tax has been set at $0; 
  2. whether the mandate, without a penalty, creates an injury-in-fact; and 
  3. whether the "requirement," if now unconstitutional, is severable from the rest of the ACA. 

In these blog posts we have defended the correctness–or at minimum the reasonableness–of Judge O'Connor's rulings on the first two of these issues: after passage of the TCJA, the individual insurance requirement or mandate is unconstitutional, and in NFIB the Court assumed that the mandate, standing by itself, imposes an Article III injury-in-fact. The third issue is distinct from these two questions.

Of course, we can be completely right about the first two of these questions, and the remainder of ACA would still be constitutional if the individual insurance mandate can be severed from the rest of the Act. But the severability question is only reached and answered correctly if the first two questions are correctly resolved first.

NEXT: Texas v. U.S.: Why the Individual Mandate is Still Unconstitutional

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  1. An interesting point has just occurred to me: Isn’t it true that, so long as the consequence for not complying with the mandate is construed by the courts to be a “tax”, not a penalty, the ex post facto clause doesn’t apply?

    This means that failing to comply with the mandate may carry no cost in the present moment, but still creates the potential for future cost, should Congress decided to restore the penaltytax to some non-zero number, because Congress could do so retroactively!

    Surely this has some bearing on the question of standing?

    1. God damn, you’re a moron.

      1. Your brilliant reasoning leaves me in awe. But, since I’m a moron, perhaps you could explain in more excruciating detail?

        1. No excruciating detail is required to rebut the fart-musings of a total moron.

          It’s simple: possible future statutes passed by Congress do not create standing.

          1. I understand the reasoning here, and had considered it.

            In light of of the fact that the penaltytax is still in the statute, we’re talking about a present statute.

            The argument is that the mandate is already defunct, because the penaltytax is set to zero, and people can just ignore it.

            But they can’t just ignore it given that the penaltytax is subject to being retroactively restored. So the mandate isn’t defunct.

            I’ll agree the Supreme court justices were (charitably…) morons when they decided Calder v. Bull.

            1. I understand the reasoning here, and had considered it.

              Evidently not.

              In light of of the fact that the tax is still in the statute, we’re talking about a present statute.

              No, you’re talking about a possible harm caused by the “retroactive restoration” of a tax that does not now exist, which would only be possible via new legislation. The possibility that Congress may, in the future, pass some legislation, does not provide a sufficient basis for standing.

              I’ll agree the Supreme court justices were (charitably…) morons when they decided Calder v. Bull.

              Yes, keep citing irrelevant doctrine and case law, it makes you look like you know what you’re talking about.

              1. Wait, Calder v. Bull is somehow irrelevant to the question of the scope of the ex post facto clause?

                1. The scope of the ex post facto clause is irrelevant to the question of whether a possible future congressional enactment can create standing. And so, case law construing it is also irrelevant.

                  1. Standing is irrelevant.

                    Brett is right. You are wrong.

    2. Maybe you and SimonP have some kind of history on here? It’s clear he doesn’t understand your point.

      I think Barnett’s argument is sufficient as far as standing is concerned but your point illuminates how a mandate does not pose merely an illusory, or self-inflicted, injury. It has real legal significance.

      As you say, taxes are generally exempt from the ex post facto prohibition. There are due process concerns, particularly where there is no notice that one might be taxed. The existence of the mandate appears to solve that notice issue. A later Congress could re-impose the tax, effective retroactively, and the argument would be that the mandate clearly required people to have insurance dealing a major blow against the due process argument.

      The fact that one could be taxed down the road does not establish standing (see Barnett’s argument) but I think it’s an astute observation concerning why a mandate is meaningful as a legal matter.

      1. Huh?

        What if Congress had simply deleted the mandate? Then would I have standing because they might reinstate it?

        These arguments get weirder and weirder. It is de facto non-existent. Only legal pettifoggers like Barnett and right-wing judges could possibly think this argument makes sense.

        People are going to “abide by the law” and buy insurance even though they would rather not? That’s ridiculous. You abide by the law by either buying insurance or paying the zero penalty.

        That the plaintiffs don’t understand the law’s requirements does not mean they are injured by it.

        1. That’s different. Clearly.

  2. I implore you to please bear with my ignorance. I have no legal training & struggle to understand these things, using only what common sense I have been fortunate enough to be endowed with.

    Re: the provision establishing the tax/penalty. As BB says at 9:52 am, that it raises no revenue presently does not eliminate its potential to raise revenue later: its powers remain, no matter that they are not presently being exercised.
    Thinking of the tax/penalty provisions as a bucket, at any particular time that bucket may be full, it may be some lesser degree of full, or it may be empty, but it remains a bucket, with all of a bucket’s potential to be filled – thus fulfilling its design purpose.
    To truly and completely remove the bucket’s potentialities, the bucket must be removed, no?

    1. In my experience, common sense is actually an obstacle to understanding the law. You’d be better off reading Alice in Wonderland, to put yourself in the right mindset.

  3. It seems that you’re willing to rely on III.A only as and when convenient to your argument.

    On the one hand, you describe III.A as announcing the “decision” and “holding” of a majority of the Court (despite this being a deliberate falsification), essentially holding that the individual mandate was deemed unconstitutional in NFIB, thereby compelling O’Connor to hold as much. But if NFIB actually invalidated the mandate qua mandate, as you’ve previously asserted, then I don’t see how you can make a “standing” argument premised upon its still being valid. That is, if NFIB saved the mandate only by construing it as a “tax,” wouldn’t the injury in fact, post-NFIB, have to be “tax”-related?

    The mandate-creating-standing argument might have worked prior to NFIB, and I would personally argue that it would continue to work now, since NFIB didn’t actually invalidate the mandate (since III.A was dicta). But you can’t argue that III.A is binding law and that you can generate standing by the fact that an invalidated portion of the ACA would require you to do something, if it were valid.

    1. It was my view that the Court held it unconstitutional – which, as you say, would appear to foreclose the claims of injury now. Yet whether the mandate qua mandate is valid or not is disputable as a result of the way the decision was cobbled together.

      The liberal justices took Roberts to task for appearing to address a constitutional issue not necessary to resolving the case and they appeared to be of the mind that Robert’s discussion of the mandate was essentially dicta. Yet there were 5 votes for holding the mandate qua mandate unconstitutional. But the mandate was merely read differently, not struck down. And the intervening act of Congress rendered a law that might probably be unconstitutional per NFIB, but was it undeniably resolved by NFIB? I see and like the argument that it was held unconstitutional but I think it depends on one’s persuasion. One could make a plausible argument that NFIB didn’t finally resolve the mandate at issue now.

      The fact that there is inconsistency may be more a function of applying a terribly flawed set of opinions to a changed law, than dishonesty. Those of us who think the mandate unconstitutional want NFIB to read for that proposition. Accordingly, Barnett and others hope for such clarity to come from this case. And they harness their favored reading of NFIB in recognition of a contrary legal argument that lurks in the shadows. There would be something foolish in proceeding mechanically where one recognizes the legal terrain is not quite so certain.

  4. […] two previous posts here and here, Josh Blackman and I contended that Judge O’Connor’s conclusion that the individual […]

  5. To say that people are not injured because they can simply disobey the law with impunity is to endorse the idea that laws are meaningless and have no authority in and of themselves — that it is only the punishment that gives them weight.

    Is the Supreme Court going to endorse that idea? No. Maybe the liberal justices won’t even sign on to that — the ends justify the means only goes so far.

    Think of all the laws you could pass that would otherwise be obviously unconstitutional, but if congress provides no penalty, no one would ever have standing to challenge them. And then think about how you will be reporting whether you complied with these laws on your tax returns, so governments will know whether you obey them or not. And it will all be ok and impossible to challenge, regardless of how intrusive, because no penalty.

    1. think about how you will be reporting whether you complied with these laws on your tax returns, so governments will know whether you obey them or not.

      Yeah, that’s the ticket – I always put any jaywalks I got away with on my taxes!

      Look at what happens when you decriminalize marijuana. Maybe not so ridiculous that laws without effect don’t cause society to crumble.

      1. You have to report on your taxes whether you obeyed the ACA coverage mandate.

        It seems fairly clear that lacking a penalty won’t be allowed to make laws (like the ACA, but not limited to the ACA — any law congress wants to write, no matter how unconstitutional) impossible to challenge due to standing.

        1. How does it seem fairly clear to you? As I noted below, it’s not clear to me.
          It’s not even clear to me that the question will appear of future tax forms.

          1. I guess you’re saying Congress can mandate the attendance at religious ceremonies as long as there’s no penalty for skipping it?

            It would be totally unconstitutional, of course, but no one would have standing to challenge it. Unless no penalty doesn’t work that way and plaintiffs have standing to challenge unconstitutional legal requirements that don’t carry a penalty.

            1. Weird you have to bring the establishment clause and it’s endorsement test into this to make your point.

              There is no endorsement test here.

              It’s very clear why the penalty no longer exists; it’s lack of existence not undermining the validity of laws generally. Your grand principle doesn’t seem to be nearly as sweeping as you think.

              1. Establishment and endorsement are irrelevant. All tests are irrelevant. No one would have standing to challenge the law.

                1. Look up how standing works in Establishment Clause cases.

                  1. Pick any other obviously unconstitutional prohibition or mandate then. I don’t think the court will issue congress a blank check to pass no penalty unconstitutional laws.

                    1. That’s exactly what joint resolutions are.

    2. Except the Supreme Court made it clear it’s not a mandate compelling you to do anything. It’s a choice to pay more in taxes or pay more in insurance. If it had been phrased as a tax deduction, your argument would be obviously absurd. Am I violating the mandate to have a child when I don’t have any deductions for dependents?

      I mean, now it’s the Cake or Death choice of a tax of zero dollars vs. having insurance coverage so the choice is presumably obvious, but the Supreme Court ruled it’s a choice because it doesn’t rise to the level of being coercive or in having criminal sanctions.

      1. The court should be regretting their let’s pretend it’s a tax nonsense from back then. It’s no longer a tax, so they can no longer pretend it is. Now it’s a requirement with no penalty.

        Can congress mandate attendance at religious services by saying they will tax you for not going, but the tax amount is zero? Does the court really want to build that back door for congress to pass whatever obviously unconstitutional requirements they want as long as the penalty for disobeying them is zero? Why would the court want that? I don’t think the liberals on the court will even go along with that.

      2. “Except the Supreme Court made it clear it’s not a mandate compelling you to do anything. It’s a choice to pay more in taxes or pay more in insurance. ”

        “Asserted in direct defiance of the statutory language” DNE “made it clear”.

        1. Take that up with John Roberts. The Supreme Court interpreted the statute’s language. Lower courts can’t go back to the statutory text without also considering how binding precedent has interpreted that language.

          1. I routinely attack his reasoning in this regard. It’s one thing to say, as the Court did in upholding the NFA, that a 20,000% tax isn’t a penalty because it might produce some revenue, and Congress does call it a tax.

            It’s another thing to say that a penalty isn’t a penalty, even when Congress comes right out and calls it that.

            That’s not deference to Congress, it’s calling them liars in order to uphold the law.

            1. The fact that you’re not accepting of the Court’s reasoning makes it hard to believe you’re attempting to actually follow it as precedent in determining the law in this case. A District Court can’t overturn the Supreme Court.

    3. To say that people are not injured because they can simply disobey the law with impunity is to endorse the idea that laws are meaningless and have no authority in and of themselves — that it is only the punishment that gives them weight.

      It is not disobeying the law to pay the tax. It never was.

  6. This is not very convincing to me – it looks like your argument boils down to ‘the litigants insisted they had standing regardless of the penalty, and the Supreme Court didn’t address the question, therefore we must assume the Supreme Court silently accepted that framing.’

    Which is not how Court opinions work. Your inability to cite actual precedent via text in an opinion is telling.

  7. I disagree with the whole premise that there is still a mandate. There were 5 votes saying that congress didn’t have the power to mandate insurance coverage. There were 5 votes saying that the penalty was actually a tax that was assessed if you didn’t have ACA compliant insurance. Setting the tax to zero doesn’t revive the mandate.

    So if there is no mandate I don’t see how there can be any standing. Nor do I see why if the ACA was severable when there was a tax, but no mandate, how it’s suddenly in unseverable now that there is no tax, and still no mandate.

    1. Because the actual ruling was that the mandate was unconstitutional if it was interpreted to be a “mandate”, but could be saved if it was interpreted as nothing but a “get out of paying a tax” card.

      Get rid of the tax, and you lose that saving interpretation.

      Mind, as I keep saying, even if the reasoning is valid, it’s irrelevant, because the only real question here is whether Roberts still intends to do whatever legal gymnastics are necessary to save the ACA. And I’m guessing the answer to that is “yes”.

      The Right really needs to buy a section of DC, and build a sort of “conservative town”, with trendy restaurants and theaters that kick you out of you’re liberal, so that conservatives in DC no longer have to turn to the dark side in order to have a nice social life.

      1. So a one-cent penalty would save the law, in your opinion, but a zero penalty kills it.

        Do your absurdities have no limit?

    2. I disagree with the whole premise that there is still a mandate.

      So does Randy. Different part of the argument, though.

      There were 5 votes saying that congress didn’t have the power to mandate insurance coverage.

      Five votes, but four in dissent, so not in support of the holding of the Court.

      I do not understand the intellectually dishonest habit of describing NFIB this way. Anyone who went to law school knows that you can’t tally votes from the opinion of the Court and the dissent to come up with some argument that binding law somehow embraces both sides. That’s part of the consequence of voting to join the dissent instead of the opinion of the Court. Those four conservative justices could have bitten the bullet and made Roberts’ opinion on the CC/N&P clause binding law, but they explicitly chose not to do so.

      1. Arguably, though, it’s a valid way of predicting what the Court might do if revisiting the issue.

      2. It is enough to say where someone is incorrect or mistaken rather than intellectually dishonest or stupid. People are wrong (or have different views) for lots of reasons.

        I’m not convinced that the label on an opinion is so significant. Normally this is not an issue since Justices label their opinions in a way that accords with what they write! That didn’t happen here as it is bleedingly obvious the dissenting Justices concur with Roberts on the mandate-qua-mandate.

        There were five votes against the mandate, as we all recognize, but it was obviously not the holding as the mandate was upheld under a saving construction. A great wrinkle is that the holding only ostensibly exists as a function of Roberts’ view that the mandate qua mandate is unconstitutional. I don’t think that can be simply set aside as it is pivotal to the holding.

        If the relevant holding of NFIB is that a mandate is constitutional if it can be fairly read as a tax, does it necessarily follow that a mandate which can’t be so read is unconstitutional? That’s the heavy implication and was insisted upon by Roberts (and the dissenters). Yet, one can argue, as you do, that the holding doesn’t say as much as it appears to say. There’s no escaping some kind incoherence in this case.

  8. […] (all but one with Josh Blackman) expressing a slightly different view of the case. (See here, here, here, and here.) As I’ve already blogged on many of the issues raised in these posts, I’ll […]

  9. I do hope right wingers succeed in abolishing Obamacare by judicial fiat. I never liked Obamacare’s sub-optimal design, and especially objected to its supine approach to constraining healthcare costs. If Republicans could get rid of Obamacare by opportunistic court action, that would further three objectives I prefer:

    1. It would add more paving stones along the way toward either serious judicial reform, or, less desirably, toward Democratic Party court manipulations framed as partisan retaliation to punish illegitimate judicial appointments shenanigans. I don’t like that second alternative near so well as I like the first. But on the supreme court appointments question, the political status quo has got to go.

    2. It would notably hinder Republican Party political chances for at least as many election cycles as the new insurance mess lasted.

    3. It would clear out a good deal of persistent political underbrush which still entangles the march toward single payer health care.

    Alas, I suspect Roberts of subtle political insight sufficient to prevent those three reverses for Republicans. Not for the first time, Roberts will step in if he has to, to save the Republican Party from itself—while catching hell from right wing fools who have no clue that they are watching a masterful political operative work the court on their behalf.

  10. […] I explained that NFIB v. Sebelius already resolved two of the most important questions in Texas. First, Chief Justice Roberts’s NFIB decision already held that the individual mandate, standing by […]

  11. […] I explained that NFIB v. Sebelius already resolved two of the most important questions in Texas. First, Chief Justice Roberts’s NFIB decision already held that the individual mandate, standing by […]

  12. […] I explained that NFIB v. Sebelius already resolved two of the most important questions in Texas. First, Chief Justice Roberts’s NFIB decision already held that the individual mandate, standing by […]

  13. […] I explained that NFIB v. Sebelius already resolved two of the most important questions in Texas. First, Chief Justice Roberts’s NFIB decision already held that the individual mandate, standing by […]

  14. Regarding the OP’s the last paragraph. Since the amendments to PPACA did not remove the offending Mandate (they only reduced the penalty to zero) PPACA remains constitutionally defective.

    The attorney general recently argued that the penalty is severable which means that Roberts’ saving construction was not in fact needed, which explains Roberts being pissed off at the “bait and switch.”

    However Congress has not amended the Mandate and in NFIB Roberts rejected the constitutionality of the mandate under the commerce clause.

    The attorney general is left to argue that the mandate is also severable (despite it not being removed by Congress). This puts the Chief Justice is in a tight spot. Will he find another saving construction despite the bait and switch? Will he adhere to the old adage: Fool me once, shame on you. Fool me twice, shame on me? Or will he take the easy way out and dismiss for lack of standing despite his earlier views?

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