The Volokh Conspiracy
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Two weeks before President Trump nominated Judge Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, Judge Barrett participated in a moot court of Texas v. California at the William and Mary Institute of Bill of Rights Law's 2020 Supreme Court Preview. As the Los Angeles Times reports, the moot did not go well for the plaintiffs.
[Judge Barrett] was part of an eight-judge panel that heard the mock arguments, conducted at William & Mary Law School.
None of the judges ruled in favor of the administration and Republican states' request to strike down the law.
Five of the judges ruled that one part of the law — the so-called individual mandate, which Congress has already effectively nullified — was unconstitutional, but that the rest of the healthcare law could stay in place. The other three judges would have thrown out the case, arguing that the conservative states challenging the law did not have standing to bring the suit.
It's not known which side Barrett was on because the participants' votes were not revealed, according to a person who viewed the session and declined to be identified.
This should not be a surprise. Contrary to the impression provided by some press reports, Judge Barrett's prior comments (as a law professor) on the statutory interpretation issues in NFIB v. Sebelius and King v. Burwell tell us nothing about how she might rule in Texas v. California. None. Nada. Zilch.
There is no inconsistency between believing that the individual mandate, as originally enacted, exceeded the scope of Congress' power to regulate commerce among the states and that the text Affordable Care Act did not authorize tax credits for the purchase of insurance in exchanges established by the federal government, on the one hand, and believing that the plaintiffs' case in Texas v. California must fail, on either standing grounds or severability (if not both). Indeed, quite a few of us who supported the plaintiffs' claims in NFIB and King believe the plaintiffs' case in Texas v. California lacks merit.
Both prior cases were grounded in conservative jurisprudence. The claims in NFIB were based on the principle that Congress has limited and enumerated powers, and that the judiciary must enforce such limits. The claim in King was based on a commitment to textualism, and the notion that the law is what Congress actually enacts, not what some members of Congress may have wanted in retrospect. In both cases, the justices who adhered to such principles voted in favor of the plaintiffs' claims.
The pivotal claims in Texas v. California, on the other hand, would require conservative jurists to abandon a narrow view of Article III standing and abandon traditional approaches to severability. A commitment to conservative judicial principles does not require ruling for the plaintiffs. If anything, it would require voting the other way, which would help explain why none of the moot court judges at William & Mary voted in support of striking down any operational part of the ACA. (The LA Times report does not list who else participated in the moot court, but other judges participating in the conference included Stephanos Bibas of the U.S. Court of the Third Circuit, Pamela Harris of the U.S. Court of Appeals for the Fourth Circuit, and Kevin Newsom of the U.S. Court of Appeals for the Eleventh Circuit.)
The Supreme Court will hear oral argument in Texas v. California (combined with California v. Texas) on November 10. My prior posts on this case are indexed here.
UPDATE: The William & Mary Institute for Bill of Rights Law provides greater detail on the mock argument:
Advocates Erin Murphy (Kirkland & Ellis) and Pratik Shah (Akin Gump) argued before Professor Larsen (acting as Chief) and Justices Amy Barrett (U.S. Court of Appeals, 7th Circuit), Kevin Newsom (U.S. Court of Appeals, 11th Circuit), Stephanos Bibas (U.S. Court of Appeals, 3rd Circuit), Adam Unikowsky (Jenner & Block), Neal Devins (W&M Law), Katherine Crocker (W&M Law), and Joan Biskupic (CNN).
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