The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I am asked with increasing frequency about the status of Texas v. United States, the latest effort to have the Affordable Care Act struck down in federal court. In this case, a coalition of states filed suit alleging that the individual mandate is unconstitutional because it may no longer be construed as an exercise of the federal taxing power, and therefore the entire ACA must be invalidated. A district court bought this argument, and on July 9, the U.S. Court of Appeals for the Fifth Circuit heard the appeal. (For more background, see my round-up of posts on the case at the end of this post.)
Many commentators predicted the opinion would be released this fall. After all, the Fifth Circuit's website notes the court tries to issue opinions within 60 days of oral argument. Texas v. US was argued over five months ago, so where is the decision? There are several possibilities.
First, Texas v. United States is a complex case, and certainly more complex than the average case heard on the Fifth Circuit. Insofar as the average opinion is issued more rapidly, that is mostly because the average opinion involves less complicated issues. Judges are typically working on and considering multiple opinions in multiple cases at any given time, and it's not always easy to resolve every case as quickly as advocates would like, particularly when cases are complex.
Second, it's likely the three judges on the panel do not fully agree on the disposition. Not only does the case involve multiple issues that could divide the judges, including standing and severability, but the judicial philosophies of the judges vary. It takes time for the judges to work through the issues and, insofar as they disagree, time may be spent as draft opinions go back and forth amongst the judges before they are all willing to sign off.
These are fairly standard reasons why some appellate decisions take a long time to issue. There are other factors that could influence the decision in this particular case, however.
Some commentators think courts time their opinions to maximize (or minimize) the amount of attention they receive. So, for instance, it may seem a disproportionate share of controversial decisions get released on Friday afternoons. This may well happen, but I am not aware of any instance in which judges manipulated the timing of an opinion in this way, so I would not endorse such speculation.
In this particular case, some speculate that the judges may have sought to delay the issuance of an opinion until after the end of open enrollment. If that's the case here, we would expect an opinion any day, as open enrollment ended December 15. Yet if the opinion does issue this week, I would be hesitant to ascribe the timing to anything other than coincidence.
It is also possible that the judges realized they had to recalibrate their thinking on certain issues due to legal developments since oral argument. One possibility here is the Fifth Circuit's en banc decision in Collins v Mnuchin, in which the court held that the structure of the Federal Housing Finance Agency (FHFA) is unconstitutional due to limitations on the President's ability to remove the agency's director
The reason Collins is relevant for the Texas ACA case is that one issue that split the en banc court was severability. Having concluded that the FHFA's director was unconstitutionally insulated from removal, the question became what the court should do about it, and this raised the question of severability.
In Collins, a majority of the en banc court concluded that courts should adopt a particularly restrained approach to severability and invalidate as little of a statute as possible. In Collins this meant that the court need not do any more than declare unconstitutional the provisions limiting removal of the FHFA's director. This was enough to eliminate the constitutional violation, even if it was significantly less than the plaintiffs wanted.
Two of the judges on the panel in Texas v. ACA dissented in Collins, but they are bound by the en banc court's judgment. Insofar as the cases are distinguishible -- and they certainly are -- it actually cuts further against the plaintiff states' claims in Texas v. US.
Several judges in Collins argued that the court should invalidate as much of a statute as is necessary to redress the plaintiffs' injury. In Collins this counseled for invalidating more than the for-cause removal provision, as it was not merely the removal provision that harmed the plaintiffs in that case. In Texas v. US, however, this approach requires invalidating nothing more than the individual mandate itself, for insofar as the individual mandate is a source of injury to the plaintiff states, invalidating the mandate completely redresses that injury, and there is nothing more for the court to do. That other parts of the statute may have other effect on the plaintiff states is irrelevant, as those other injuries are not the basis for the plaintiff states' standing, and they are not alleged to be unconstitutional in themselves.
I have no inside knowledge about the handling of either case, so this is speculation on my part, but I would not be surprised if the Collins decision forced one or more of the judges here to recalibrate their opinion(s) in the case. In any event, it will be interested to see how the Fifth Circuit panel handles Collins when it finally issues the opinion in this case.
UPDATE: I am reminded that co-blogger Josh Blackman discussed Collins and its potential implications for Texas v. U.S. in this post. Josh's post focuses heavily on the separate dissent by Judges Oldham and Ho arguing for a more originalist approach to severability. I agree with Josh that this separate opinion is quite interesting, but I don't think it gives much indication of where the Texas v. U.S. panel is heading. Among other things, neither Judge Elrod nor Judge Englehardt joined that separate opinion. I'd also argue that the Oldham-Ho approach - fashion the remedy to redress the plaintiffs' injury, but no more or no less - would counsel declaring the mandate unconstitutional and unenforceable, and calling it a day. Of course we'll see whether that is what the Fifth Circuit does.