How Judge Barrett Ruled in the Texas ACA Case (Updated)

Judge Amy Coney Barrett participated in a moot court of Texas v. California, and it did not go well for the challengers.

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There is no inconsistency between believing that the individual mandate, as originally enacted, exceeded the scope of Congress' power to regulate commerce among the states and that the text Affordable Care Act did not authorize tax credits for the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).

Comments

[Longtobefree]

I am too lazy to look up the final ACA text, and too old to fully trust my memory, but wasn't there considerable debate about including a severability clause when the law was enacted? And wasn't a severability clause left out on purpose because the law cannot operate without the mandate and associated revenue from the penalty?
If that is true, how can a court claim severability exists when it was specifically rejected?

[Armchair Lawyer]

There was. However....

The mandate has been effectively severed for years, since the penalty was lowered to zero. And it hasn't fallen apart. So, I think a rational justice would conclude that it could be severed just fine.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Results over the law as written. Good. Let's have more of this and get back to having kings instead of lawyers running this country.

[Bubba Jones]

It's simpler than that.

You can interpret it as the later congress having chosen to sever the mandate.

Or, the mandate is still there. It's inseverable, and the fact that the tax is currently 0 doesn't change the prior ruling that it was a tax. Congress can and does update tax rates. They didn't eliminate the tax, they set the current tax to 0.

If the Fed sets an interest rate to 0, that doesn't mean there isn't an interest rate.

[Brett Bellmore]

I think it was left out more as a matter of playing chicken with the Court, and Roberts blinked.

[rsteinmetz]

It was more a tactic by Democrats to scare voters and demonize Republicans for electoral advantage.

Looks at the number of prominent Democrats who have positively stated that Barrett will strike down the ACA, with little or no proof.

The Democrats are also touting popular features of the ACA whihc likely could have been passed as a huge bi-partisan majority if presents as as separate bill, but Democrats generally refused to support such a bill to avoid losing talking points for something like the ACA.

If The Republicans want to blunt this the Senate could simply put up a clean "Patient Bill of Rights" that would guarantee coverage for pre-existing conditions keep the marketplaces in operation and some of the other popular features of the ACA.

[bernard11]

Would your proposal include guaranteed issue and community rating?

[jb]

"The Democrats are also touting popular features of the ACA whihc likely could have been passed as a huge bi-partisan majority if presents as as separate bill, but Democrats generally refused to support such a bill to avoid losing talking points for something like the ACA."

People say stuff like this, but then you ask what the Republican plan for preexisting conditions is, and you stuff like Trump's executive order that doesn't actually do anything other than affirm that yes indeed we want to make sure that people with preexisting conditions can have health care. For all its warts, the ACA actually did deal with preexisting conditions so it's reasonable to say that people with no alternative plan that want to repeal the ACA effectively want to get rid of protections for people with preexisting conditions.

[bernard11]

Right.

Claims about the Republican policy on health insurance are totally meaningless at this point.

They started the whole "repeal and replace" business what, six or seven years ago, and have offered nothing since. And it's not as if this issue just came into public awareness with Obamacare. It's been discussed forever.

And now Trump periodically promises a wonderful plan, cheap, coverage of pre-existing conditions, etc. any day now. Most recently he promised one in two weeks back in mid-August, and when the WH gets asked it's "putting the finishing touches on."

Sure. There is no GOP plan, no policy. They just want to attack Obamacare, mostly because, as some admitted way back during the Clinton years, letting Democrats pass a successful health care plan would be very bad fro Republicans in the long term.

[Michael P]

My recollection matches yours.

The argument for separability is probably that the law as it currently stands is not the same one that 2010's Congress explicitly decided to make inseparable: A later Congress determined that its elements are separable, and in fact separated them, so courts may now treat the law in the same fashion. (I personally do not know enough to guess whether this is a winning argument.)

[jb]

Yes, you are correctly summarizing the argument for severability. Who cares what the 2010 Congress thought since the 2017 Congress clearly thought that the mandate wasn't necessary for the rest of the law to operate. It is easy to confirm this because they zeroed out the mandate but left the rest of the law.

[Toranth]

That's one of the things I've never quite understood about "severability".
The law was passed in one vote, and signed once by the President. If the courts can then pick and choose which elements are separate, why can't the President through a line-item veto?

It seems to me that if the Congress passed it all at once, through agreements and favor-trading or whatever, then the courts would need to respect that legislative process.

[Brett Bellmore]

Because the courts don't actually repeal the parts of laws that they 'strike down'. They simply declare that they're not going to enforce them because they weren't enacted "pursuant to the Constitution".

Similarly, Presidents can declare they're not going to enforce parts of laws for exactly the same reason, and that doesn't repeal them, either.

I do agree that, as a rule, severability should be very strongly disfavored, unless specifically provided for in the law.

[jb]

Some of our friendly Conspirators have conspired to answer your question:

https://www.supremecourt.gov/DocketPDF/19/19-840/143417/20200513125326824_Adler%20et%20al.%20Amicus%20Brief%20ISO%20Petitioners%205.13.2020.pdf

[Toranth]

That is an interesting brief, and directly on target for the current ACA case here. Thank you for linking it.

Unfortunately, it doesn't actually address my concern. It nicely explains how the severability as applied in current law relates to thee ACA, but it doesn't justify the concept in general in terms of terms of legislative tradition or constitutional powers.

[jb]

I do think the rationale is in the brief. Specifically:

“the ‘normal rule’ is ‘that partial, rather than facial, invalidation is the required course.’ ”. Courts must “try not to nullify more of a legislature’s work than is necessary” because “ ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’ ” “ ‘[W]hen confronting a constitutional faw in a statute,’ ” courts thus must “ ‘try to limit the solution to the problem,’ severing any ‘problematic portions while leaving the remainder intact.’ ”

So the idea is actually deference to the legislature and the work they've put into creating the law. As Brett points out, what the Court is really doing is just saying that a certain part of the law isn't enforceable but the rest is, just as often happens when two parties have a contract that contains an unenforceable position--you don't necessarily throw out the whole contract, but often will try to enforce the majority of it.

[Toranth]

Yeah, I saw the places where this brief quoted from recent court cases upholding the recent practices of severability. The problem is that, in at least the two referenced cases I checked, those didn't justify the modern practice either.

It's nice of those judges to write their judicial philosophies for all to read... but that's not a reference to the authority for them to perform that way. As far as I can tell, the best reason is that it was tradition predating the US, and so the judges just assumed the continuation would be proper.

[bernard11]

How can it not be severable?

The whole argument is a complete joke.

[loki13]

It's always been a joke. Legally, as Prof. Adler correctly notes, this case would have to not only abandon all prior jurisprudence regarding severability and replace it with, "Because we really want it!" but more importantly would stand as the greatest conservative retrenchment on standing; something that would probably make Scalia turn in grave.

Truly, it would be the conservative equivalent of Douglas's "Trees have standing."

[ReaderY]

Trees. But not fetuses.

[loki13]

Thank you for your completely pointless aside that has absolutely nothing to do with the topic.

[bernard11]

Actually, I think the whole NFIB argument was a joke.

It's plain as day that Congress can provide a credit for doing certain things, so why not a penalty for not doing some things? They are equivalent.

[Brett Bellmore]

Not legally, they're not.

I can just walk up to you and give you $10 if you shine my shoes. Does that imply I can legally demand you give ME $10 if you refuse to shine my shoes?

[Sarcastr0]

As Roberts noted, the government has the power to require money from citizens.

[Charles Epperson]

Yes he did, as a tax... But is it actually a tax. I say it is not it is a civil penalty.

If I take what you stated at full value that government could just seize any and all money with no compensation as they can require "money from citizens" for any reason or no reason. To me that is why the whole penalty as tax is idiotic and against the spirit and text of the Constitution and affront on freedom.

[bernard11]

could just seize any and all money with no compensation as they can require “money from citizens” for any reason or no reason.

And politics is what is supposed to prevent this.

[Sarcastr0]

And if they don't call it a tax, is this suddenly unconstitutional? Do you need the magic words?

Do you think a 90% tax rate would be unconstitutional? A wealth tax? Tax credits, as bernard notes below?

The taxing power has more flexibility than the soundbyte crowd gives it credit for.

[Bubba Jones]

It's a monetary penalty collected by the IRS through the annual tax filing.

That is TOTALLY DIFFERENT from a tax.

[bernard11]

I can just walk up to you and give you $10 if you shine my shoes. Does that imply I can legally demand you give ME $10 if you refuse to shine my shoes?

You can't. The government can.

Look. There is, for example, a tax credit for R&D. If a company does a certain amount of R&D they pay less tax than if they don't. That looks to me as if it could be characterized as a credit, as it is, or a penalty for not doing the specified amount of R&D.

There is no difference in substance.

[Rev. Arthur L. Kirkland]

The increasingly likelihood of a Democratic Congress and president should diminish interest in the ACA's fate and direct attention toward the prospects and nature of a single-payer system.

At 538, Biden is a 4 of 5 favorite, with an 8.3 national lead, and Democrats are a 2-1 favorite for Senate control. The Republican chance to take the House hovers near two percent.

[Bored Lawyer]

I doubt that how someone judge's a moot court competition sheds any light on how he or she would vote on a real world case.

In the former, it is the skill of the competitors that is paramount. A good competitor, like a good lawyer, should be able to argue both sides of almost anything.

In the real world, the litigants, and in cases like the ACA cases, the general public, have to live with the results. So there a just and proper result is more important than advocacy skill.

[Random]

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Hear, hear!

I'm posting a similar content to much the same effect, with a twist.
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[David Cary Hart]

I have to wonder if Mr. Adler would agree that the state has a compelling interest in the mandate. If so, then how might that affect the case?

It is unreasonable (and unrealistic) to expect underwriters to cover pre-existing conditions without the mandate. The purpose of the mandate was always to allow pre-existing condition coverage. I wonder how this has affected premiums.

[jb]

The analyses I've seen is that the mandate hasn't really affected the rate that people are getting insurance, so the theoretical risk of adverse selection hasn't really shown up.

This is surprising to me as well, but it seems to be what the data is saying:

https://www.kff.org/private-insurance/issue-brief/individual-insurance-market-performance-in-2019/

[Moderation4ever]

I have noted that when the discussion of the ACA lawsuit comes up the idea of a complete repeal on the basis of the mandate penalty get little support from the legal scholars. I suspect this will also be the case for the justices in November with or without Barret. While it was Justice Roberts who saved the ACA in 2014 it remains to be seen if he just took one for the team and thus allowed other conservatives justices to rule against.

[Beldar]

Fascinating post, Prof. Adler. Thank you for it.

[Random]

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The LA Times (and W&MU) also say

"Moot courts are meant to be educational role-playing exercises; few who engage in such sessions would suggest that Barrett’s vote telegraphed how she would vote in the actual case. William & Mary law professor Allison Orr Larsen told attendees, 'You should not take the questions we ask or the arguments we make as personal endorsements,' according to a post on the school’s website."

It is entirely plausible that Judge Barrett was being the devil's advocate, putting forth opinions that were not her own and making arguments in which she placed no credence.

Perhaps as an intellectual exercise, or maybe she was playing possum for Democratic Senators?
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