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Volokh Conspiracy

SCOTUS Expands Texas ACA Case Oral Argument (Updated)

Two sets of states, the House of Representatives and Solicitor General all get argument time.


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:

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. (Updated to keep the list more current.)

I'll have more to say about the merits and some of the briefs in the days to come.