The Volokh Conspiracy

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Affordable Care Act

Red State Challenge to Affordable Care Act Goes to SCOTUS (But the Arguments Remain Incredibly Weak) (Updated)

Today's cert grant is based on the importance of the case, not the quality of the arguments


This morning, the Supreme Court granted certiorari in Texas v. United States, the ambitious red state lawsuit trying to tear down the entire Affordable Care Act because Congress zeroed out the tax penalty for failing to purchase qualifying insurance. As Josh notes below, the case will be heard on the Fall (though whether before or after the election remains to be determined).

The reason for the cert grant is understandable: A lower federal court invalidated a provision of federal law, with potentially significant implications. This is often reason enough to grant certiorari. Of note, the Court accepted both the petition filed by the blue states challenging the Fifth Circuit's decision, as well as the cross-petition filed by the red states seeking to ensure that severability is among the questions presented to the Court. [Update: Though as Josh notes, the Court did grant the petition for certiorari filed by the House, either because granting the petition was superfluous or, as Josh suggests, because not even four justices believe the House has standing.)

As readers know, I believe this is a dog of a case. The argument that any of the plaintiffs have standing is quite weak, and the ultimate severability arguments are unmoored from existing doctrine as well as the original understanding of the Article III judicial power.

I critiqued the Fifth Circuit's opinion here. Most of my other prior posts on this case are listed in this post (except for this one).