Affordable Care Act

ACA: The Lay of the Land

Where things stand after oral argument.


The oral argument transcript in California v. Texas (the ACA case) makes for interesting reading. Here's my sense of where things stand—not a prediction of how the Justices will vote, but how I'd evaluate the arguments at this point.

TL;DR: The plaintiffs have standing, but only under their 'bank-shot' theory of inseverability. Because they lose on severability, the Court shouldn't even get to the merits.


Direct standing. The plaintiffs' 'direct' standing theories—the ones citing injuries following directly from the mandate—are pretty thin gruel. The individuals say they're injured by the mandate itself: they don't want to comply and buy health insurance, but they also don't want to shirk their legal duties. The states claim a different kind of direct injury: the more people who feel compelled to buy insurance under the ACA, the more money they'll have to spend for various other reasons.

Neither claim seems right. Imagine that Congress passed the following statute:

§ 1. The Church of Jesus Christ of Latter-day Saints is the established church of the United States, and all citizens shall comply with its tenets.

If anything violates the Establishment Clause, that does. But can anyone go to court over it? Like the ACA, this statute has no enforcement mechanism, so there's no one to sue: the plaintiff's quarrel is with the statute book, not with any particular defendant. As Justice Barrett noted, you can't sue Congress to make them repeal a law; and in any case, courts don't issue "writs of erasure," stripping pages out of the Statutes at Large.

This may seem kind of crazy, that a literal establishment of religion could go without challenge. But a core lesson of standing doctrine is that a law can be unconstitutional—even wildly unconstitutional—and yet no single plaintiff might have standing to challenge it. That's why standing is separate from the merits: because courts have to wait for a certain kind of case to weigh in, even if what they're waiting to say is true. (I have other reservations about modern standing doctrine, but that part seems right to me.)

In this hypo, even if an individual plaintiff objects to the new legal duty, there's no defendant to whom that injury is traceable; there's no one for a court to enjoin, much less to award damages against. And, as Justice Gorsuch noted, you can't get declaratory relief just to answer an abstract question; you need the possibility of some other kind of relief in some other kind of suit. (Maybe the establishment could be challenged in private lawsuits—say, if LDS tenets rendered alcohol contracts among private persons void as against public policy. But you'd still need an actual defendant.)

The Texas SG noted that the United States is a defendant in the ACA case (as has Josh Blackman in a previous post). Maybe our hypothetical objector could sue the U.S. too, assuming an appropriate waiver of sovereign immunity. But this may not help. If the U.S. can sue private citizens in equity, obtaining injunctions to force them to adhere to the new religion (as Justice Gorsuch suggested with respect to 26 U.S.C. § 7402(a)), then sure, an individual defendant could invoke the Establishment Clause in defense. Maybe that individual could also, as plaintiff, race to the courthouse for an anti-suit injunction, or else for some kind of declaratory judgment establishing their rights and liabilities relative to the United States. But the former requires some real threat of enforcement, and the latter a "case of actual controversy." If the United States agrees that the law is unconstitutional, and if no one is going after you, then what are the plaintiffs worried about?

The ACA plaintiffs seem to be assuming that unconstitutional statutes really do impose legal obligations, until a court officially announces that they don't. But that's not how it works. "[A]n act of the legislature, repugnant to the constitution, is void," even before any court says so. A void statute imposes no obligations whatsoever: that's why a court must refuse to apply it when the statute is invoked. If a government officer were to come and throw you in jail for not buying health insurance, then yes, you could challenge that detention in court; and if they were going to throw you in jail, then you might get pre-enforcement relief to stop them. But nothing is actually going to happen to the individual plaintiffs, other than the fact that they think Congress passed a void mandate, which falsely purports to impose on them an unenforceable legal obligation. The injury is just in their heads. The correct response to a law that's both void and incapable of enforcement is to ignore it, not to seek Supreme Court review because you lack the courage of your convictions.

(The same goes for the states. Suppose that the more people who adhere to LDS tenets, including their 10% tithing requirement, the more tax revenue the states will lose in charitable deductions. That still doesn't give the state anyone to sue: the problem isn't that the United States government is doing anything to them, but that their residents mistakenly think that they're bound by a void statute. Imagine that another version of the statute, properly construed, actually imposed no statutory obligation to adopt LDS tenets at all, but that lots of ordinary people nonetheless misread it and thought that it did. Could a state run to court to get a declaratory judgment, to save it from the costs of its citizens' interpretive errors? If most people don't check PACER, would a final judgment from a district court be of any help? Can my Civ Pro students run to court for some declaratory judgments, if they'll be injured by their own misreadings when they take my final exam? Etc.)


Bank-shot standing. A second theory of standing works better. The individual and state plaintiffs are unambiguously injured by the defendants' conduct under other parts of the ACA. Federal officials, right now, are preventing the individuals from buying cheaper kinds of health plans, and they're also imposing a variety of obligations on the states. If the mandate is unconstitutional, and if everything else in the ACA is inseverable, then the rest of the law is inoperative (the bank shot), and these officers' actions may properly be enjoined.

This argument is controversial, but it seems plainly correct to me. Consider two more provisions of our imaginary statute:

§ 2. Any person who drives over 55 mph in the District of Columbia is guilty of a felony and shall be imprisoned for not more than two years.

§ 3. Sections 1 and 2 of this Act are inseverable; if either is unconstitutional, the other is wholly inoperative.

Say that someone in D.C. is pulled over for driving 56 mph. As Justice Alito suggested, and as Josh argued in a prior post, surely the defendant could invoke inseverability in his defense at trial: either driving 56 mph in D.C. is either a felony or not, and we have to answer the severability question to find out. The California SG conceded as much, and that concession strikes me as fatal. There's definitely an injury-in-fact here: the defendant is going to jail (!), and he's contesting the legal status of the very provision applied against him. True, his constitutional concern involves some other provision; but that's a necessary premise of his statutory argument for why the criminal prohibition applied to him lacks force. And if you can raise a defense of inseverability in the criminal proceeding, even though no court has ruled on the religious establishment yet (and you have no problem with it yourself), then assuming you've checked the other necessary boxes, you might qualify for pre-enforcement relief.

Some Justices reacted quite negatively to this idea, because it puts severability, a seemingly back-end concern, at the front of the train. The reason may be a disagreement about the nature of inseverability. Consider the following two versions of Section 3:

§ 3. Sections 1 and 2 of this Act are inseverable; if either is unconstitutional, the other is wholly inoperative.

§ 3*. Sections 1 and 2 of this Act are inseverable; if either is ever held unconstitutional by the final judgment of a court of competent jurisdiction, the other is from that date on, and not until then, inoperative.

Strange as it may seem, many inseverability clauses are written explicitly along the lines of § 3*: they depend, not on another provision being unconstitutional, but on its being held unconstitutional by a court. These kinds of clauses represent time-limited legislation, sunsetting one provision once a court holds another invalid. Under a statute like that, a defendant who's prosecuted under Section 2 has no defense regarding Section 1; on the date of his offense, Section 2 hadn't sunset yet, and it was fully in force (and stays in force for him under the general savings statute). If the criminal defendant can't raise the argument, then it makes sense that someone seeking pre-enforcement review can't either: allowing a suit for the sole purpose of triggering the sunset would be letting the plaintiffs pull themselves up by their own bootstraps.

Applying all this to the ACA is pretty confusing, because (as discussed below) the ACA doesn't even have an inseverability clause. But whether there's some invisible-ink inseverability there—and, if so, of what kind—is a question of statutory construction, not of standing.

This brings us to the other critique of bank-shot standing: that it would open the floodgates to unrelated claims. Right now, if some plaintiff wants to argue that, say, fossil fuel subsidies are unconstitutional, standing makes it harder for a court to hear it. In particular, Steel Co. v. Citizens for Better Environment requires that a court address jurisdiction before the merits. But if the plaintiff is headed to prison for an unrelated arson conviction, and if he wants to claim that 18 U.S.C. § 81 is somehow inseverable from the government's subsidies for fossil fuels ("I just burned down some houses, but they're burning down the planet!"), then his injury-in-fact is already present; he's going to jail, and he has a legal theory for why he shouldn't. Steel Co. doesn't prescribe any order of battle here; a friendly Ninth Circuit panel could theoretically reach the merits, hold fossil fuel subsidies unconstitutional, and then conclude that they're nonetheless severable from the arson prohibition, denying the plaintiff any relief while keeping the merits holding on the books (and, indeed, insulating the decision from cert review).

But if this is really an order-of-battle problem, then (per Acting SG Wall) it has an order-of-battle solution. Current doctrine already holds that frivolous claims don't support federal-question jurisdiction. If a plaintiff's pre-enforcement challenge rests on a frivolous severability argument, that would have to be addressed first. Or, if the severability argument is nonfrivolous, the proper use of judicial discretion would still be to address it first. In cases like these, inseverability arguments are ultimately arguments of statutory construction; under Ashwander, statutory arguments get resolved before the constitutional ones. Resolving the severability argument first means that courts couldn't run off to address constitutional challenges unless the merits of those challenges really do affect the plaintiff's entitlement to relief for actual injuries. So it seems doubtful that allowing bank-shot standing would open the floodgates to speculative constitutional claims; and it seems quite certain, by contrast, that at least some bank-shot claims deserve their day in court.


Severability. If the Court does turn to severability first, it should find the ACA severable and send the plaintiffs home. This issue has been discussed pretty exhaustively by others, so I'll add only a few thoughts here. As Kevin Walsh has argued, the original approach to severability was to recognize that both the statute and the Constitution are law, but that the Constitution is superior law; whenever a statute commands what the Constitution forbids, the court must give effect to the Constitution, which means failing to give inconsistent effect to the statute. ("It is not the terms of the law, but its effect, that is inhibited by the constitution.") But if the statute has other effects, not inconsistent with the Constitution, those the Court must respect.

Modern courts approach severability very differently, of course; and legislatures can always provide their own instructions for deeming portions of their laws inoperative. But the 2010 Congress doesn't seem to have done this. The primary provision cited by the plaintiffs, now codified at 42 U.S.C. § 18091(2)(I), is as follows:

* * * [I]f there were no requirement, many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.

The 2017 Congress didn't repeal this finding, but it didn't have to: as an inoperative provision, it reports the view of the 2010 Congress that compliance with the mandate was very important. The 2017 Congress zeroed out the penalty, which suggests a view that compliance with the mandate isn't very important after all. In any case, we don't need to identify "what Congress really thought" to conclude, as the Chief Justice and Justice Kavanaugh suggested, that this particular statutory finding shouldn't be read as a mandatory inseverability clause.

If the rest of the law is severable, it remains in effect regardless of whether or not the mandate is valid. That being so, the plaintiffs have no good argument that their injuries—the real ones, the bank-shot ones—are being unlawfully inflicted. To determine whether these plaintiffs get any relief, it's unnecessary to decide whether 26 U.S.C. § 5000A now imposes a $0 tax or a bare legal duty to buy insurance—and, in the latter case, whether that duty may constitutionally be imposed. The Court can stop there, and it should.

NEXT: Today in Supreme Court History: November 13, 1856

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  1. Hm … then under the Thomas / Gorsuch theory of severability, what might happen? Thomas doesn’t really care what modern severability precedent says.

    1. Well, that really should be the majority view. Severability violates the constitution pretty clearly.

        1. Presumably the part that says Congress passes the law, the president vetos or signs it, and that’s that. No branch may make unilateral changes to it, including the judicial, who can find it unconstitutional or not.

          I think severability is fine, but if not, blame it on gigantic omnibus bills and Congress.

          1. By this logic, though, there’s no mention of the judicial power to invalidate laws at all. So you could take the (extreme) view that there Constitution doesn’t provide for judicial review of laws at all, but there doesn’t seem to be anything that supports the notion that severability is unconstitutional.

        2. The presentment clause.

          A partially invalidated law is not a law that has been passed by both houses of Congress and signed into law by the President.

  2. The 2017 Congress didn’t repeal this finding, but it didn’t have to: as an inoperative provision, it reports the view of the 2010 Congress that compliance with the mandate was very important. The 2017 Congress zeroed out the penalty, which suggests a view that compliance with the mandate isn’t very important after all.

    This does not seem to be logical, Captain.

    (1) everyone insists, for years on end, that that three legged stool cannot stand if one leg is chopped off, and
    (2) then someone chops one of the legs off
    (3a) we are supposed to assume that the someone has concluded that the stool will stand up fine with only two legs ?

    And not :

    (3b) that the someone intended to wreck the stool ?

    Next week :

    Officer : “Why did you chop your wife’s head off with an axe ?”
    Husband* : “I thought it would be a sharp reminder to keep the house tidier.”
    Officer : “How can she keep the house tidy when she’s dead ?”
    Husband : “I wasn’t expecting her to die, I just thought she’d shape up.”
    Officer : “You cut her head off with an axe, and you didn’t expect her to die ?”
    Husband : “No, officer. Many people did warn me that that would happen, and for many years I thought that too, but I changed my mind. I never expected her to die – it came as a real shock.”
    Officer : “OK, that makes sense. You’re free to go. Looks like you’ve got some extra tidying up to do.”

    *PS – this example is just for fun. In reality you should never ever ever ever talk to the police without your lawyer present. Or with your lawyer present, either.

    1. Could you snswer Justice Alito’s wuestion? What if the stool sctually stays standing?

      1. What does that have to do with the intentions of the guy with the saw ?

        1. What it has to do with it is that, contrary to expectation, the stool in fact did not collapse. It turned out that, apparently, not as many people as expected try to game the system.

          It’s as if the wife just picked up her head, taped it back on, and went about her business.

          1. I appreciate that, but Prof Sachs didn’t say :

            The 2017 Congress zeroed out the penalty, which suggests that compliance with the mandate isn’t very important after all

            which we could certainly justify by reference to the ex post facto discovery that the stool did not collapse and the wife got by after taping her head back on.

            But what he actually said was :

            The 2017 Congress zeroed out the penalty, which suggests a view that compliance with the mandate isn’t very important after all.

            Which is about the view of the 2017 Congress, when it enacted the law. Which, as I understand it is, inter alia, what we are trying to discern. Did Congress intend the stool to collapse, as all had prophesied, or not ?

            I confess my memory is not what it once was. And even when it was, it wasn’t that great, IIRC. But I don’t recall a lot of GOP Congresscritturs saying, at the time – don’t worry it’ll all be fine, this two legged stool will stand. Maybe they did and I missed it. Mostly I remember them going “nah nah nah nah nah – you see we can do budget reconciiation tricks too !”

            1. The short and simple is that Congress could have repealed the ACA, or they could have repealed only the mandate. By repealing only the mandate, they chose to not repeal the entire ACA. That was Congress’s choice. It was a new 2017 choice, not the original 2010 choice. Why should teh court now tell Congress their 2010 choice cannot be overridden by the 2017 choice?

              1. The fact that I saw a leg of a three legged stool, and do not burn it, does not imply that I wish the stool to remain usable. Maybe I just don’t have a can of gas and a match handy.

                1. If you saw a leg off a stool, regardless of how many legs it has, instead of not throwing it out, the only reasonable choices are:
                  * You are a lazy bastard and want someone else to throw it out.
                  * You think the stool is useful without that leg, and do not want it thrown out.

                  And in this case, Congress had 7 years to read what was in the bill they had passed, and decided it was worth keeping without the apparently useless leg.

                  1. Nope. If I throw it away, it can always be brought back from the trash heap. With a law, you can’t just throw it away, you have to do something to the law itself – whether that’s amending or repealing.

                    The fair comparison was mine – saw the leg off the stool, or burn it.
                    And sawing the leg off the stool is a perfectly reasonable choice, if I have a saw, but no gas and no matches.

                    and decided it was worth keeping without the apparently useless leg

                    You are assuming your conclusion.

                    1. What if the 2017 congress observed that the 3rd leg didn’t actually reach all the way to the floor, so they cut it off?

    2. As I understand it, the question is not whether the stool stays standing after one leg is cut off, but that the owner could have, but intentionally did not, throw the stool in the trash heap, but merely cut off one leg.

      Your choice now is: the owner was an ass and wanted to destroy the stool so someone else would find it useless and throw it out; or the owner thought a two-legged stool was still useful and wanted to keep it.

      Or as I would rephrase it: the owner originally thought he was buying a three legged stool and insisted it had to have three legs; that if it only had two legs, it would be worthless and might as well have never bought it (“We had to pass the bill to know what was in it”). Then it turned out the owner received a five legged stool, later cut off one leg, and the four remaining legs still hold it up without wobbling. Thus the provision of throwing it out for lacking one leg no longer holds.

      1. But when the owner cut the leg of the stool, did he think it was a five legged stool or a three legged stool ?

        1. Stupid question. As I said:

          Then it turned out the owner received a five legged stool, later cut off one leg

          And by obvious inference, that if the owner had wanted to throw out the entire stool, they would have done so rather than mutilate it so someone else would throw it out.

          1. Yeah, you’re assuming that the owner discovered that it was a five legged stool before he cut a leg off.

            So, show us some evidence that before cutting the leg off, the GOP majority had concluded that the stool would be fine without it.

      2. Or, alternatively, found a good non-stool use for what remained after one leg was sawed off.

        It’s hardly impossible that Congress actually liked some of the other provisions. Even ACA opponents go on about protecting people with pre-existing conditions and whatnot.

        1. Keep in mind many always believed the individual mandate was unnecessary and they simply tacked it on in order to game the CBO enrollment numbers. So in that instance the rhetoric surrounding the individual mandate is similar to Trump’s rhetoric about his Muslim travel ban.

        2. Sure, all sorts of possibilities exist. Including sawing off a leg to get the Dems to compromise on some of those other provisions. Or not being sure the stool would collapse, but being indifferent.

          I am not insisting that the collapse of the stool is the only conceivable inference you could draw as to the 2017 Congress’s intentions; merely that the Sachsian and Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf- ian position that the 2017 Congress must have intended the stool’s survival as a working seat, rather than its collapse, assumes the conclusion.

          Much the most likely answer, IMHO, was that different members of the majority had different opinions, and so discerning an “intention of Congress” from mere silence is an exercise in finding what you wish to find.

          1. Okay, so then who cares? Standard severability doctrine is that you just remove the part that’s unconstitutional and leaves the rest standing.

    3. Congress zeroed it out but did not repeal it. For better or for worse, Congress is fine with it hobbling along like this. Ergo there isn’t even anything to sever here.

      If you feel put upon, send the government a check for $0 and enjoy being in compliance with the law.

    4. But what if the murdering husband is a hopeless incompetent. He intends to cut his wife’s head off but he fails and neuters himself instead. What should be done? Do you bury the wife in an unmarked grave because of the husband’s intent?

      If congress passes a law with the purpose of rendering a pre-existing perfectly fine and constituional law unconstitutional, what should be done? Overturn the law that congress was aiming at or impound the cleaver? Why is it that the ACA falls and not the 2017 legislatiion?

  3. On standing, hortatory laws have been common in recent history. Statutory penalties are not enough. Courts repeatedly refused to hear challenges against various morals laws because, while they had substantial penalties, there was no evidence the named defendants were engaging in any enforcement action against the named defendants. After Poe v. Ullman, there were multiple cases in which circuit courts found lack of standing for various fornication, adultery, and sodomy laws.

    1. I get a bit peeved how the courts continuously use convoluted interpretations of standing to avoid ruling. The CO2 tailoring rule was the worst, as they concluded effectively that no one could have standing unless they thought it was too light, since the regulated community was “helped” by the rule

    2. Whatever happened to “We have never held a law constitutional merely because the government said they’d use it wisely”?

  4. On severability, Mesa v. Hernandez opens the door for the Supreme Court to consider statutory interpretation remedy matters without deciding otherwise antecedent constitutional questions. Severability is a question of statutory interpretation and is a remedy question.

    Following Mesa, if any justices find standing, they could simply assume without deciding that the statute is unconstitutional and conclude that if so, the provision could be severed as a statutory matter, and do so without actually deciding the constitutional question.

    And when this route is taken, the constitutional question really remains open. Shortly after Mesa, the Court decided the question of whether extraterritorial aliens have constitutional rights oppositely to the way Mesa had assumed.

  5. Sorry, but I read the title as “AOC: The Lay of the Land”, and thought it was going to be about, “…from each according to their ability”.

    1. That implies that someone else has the need. [citation needed]

      1. You haven’t seen statements like, “Fuck AOC”? Seems many folks would want her services.

    2. If you look, you can find (mind you I’m not saying that you should look) internet discussions about what sex work will be like under true communism.

  6. Seems to me that Sachs has it about right.

    What I’m scratching my head over is why it was granted cert in the first place.

    1. Presumably if cert was not granted, we’d be left with the opinion of the 5th Circuit ?

      1. I think it’s a candidate for summary reversal myself.

  7. On your example of a state’s fisc being affected by the misreading of citizens…I wish we could firmly say there’s no standing there, but I’m not so sure.

    First, I think the whole state fisc standing (from the DAPA case that got affirmed 4-4 in Texas v. US) is bunk.

    But more on point, in the Census case, I think SCOTUS /did/ endorse the “standing” theory you dismiss:

    “But we are satisfied that, in these circumstances, respondents have met their burden of showing that third
    parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite
    the requirement that the Government keep individual
    answers confidential. ”

    If it were /predictable/ that people would act in a way that caused the state an injury, that seems good enough, even if it was /unreasonable/.

    1. If you are going to argue that something damages the state’s finances, it seems to me you should have to prove it.

      Even if the short run effect hurts the treasury, that hardly means that there can’t be a longer term benefit.

      Who knows, maybe the improved wellbeing of of all those extra Medicaid beneficiaries will lead to enough economic activity and employment that the revenue gain will outweigh the cost.

      I’m not claiming it will, but should the court accept a simple assertion that it won’t?

  8. Mmmm. I appreciate the thoughtful post, but I have to disagree. In two parts. The first is more of a general grievance (ahem), so for the more substantive response, go to the second part.

    “I have other reservations about modern standing doctrine”

    You don’t say! This is something that continues to bug me. Look, I can (and do) make fun of results-oriented jurisprudence all the time, but the sudden desire of so-called conservatives to re-examine one of their greatest victories is mind-boggling to me.

    There are two things that, partisan differences aside, matter a great deal to people that actually practice law in federal courts, and that I would say have been great victories for the conservative movement. Once lamented by the “liberals” as part of the whole “closing of the courthouse doors,” the twin revolutions of standing and heightened pleading standards have done more to promote judicial and litigant economy than all the bleating about tort reform for the past century has done.

    In a nutshell, because of a few ideologically charged cases, the hoi polloi (the Trumpist know nothings who are migrating to NewsMax and Parler) want there to be no standing rules because they want anyone to be able to bring a lawsuit. Great! But the worrying thing is that members of the academy (who, ahem, aren’t exactly practicing attorneys …. yeah, I went there) tend to support them as well.

    Strictly enforced standing rules are what keep officious busybodies out of court. Just because you’re drinking your Coors in a trailer park in Alabama, and you see something on the TeeVee that gets you all riled up about something in Alaska … doesn’t mean you have standing. It doesn’t matter whether that’s the oppression of Christians in Alaska, or the oppression of otters. Standing serves to protect us all – governments, corporations, and PEOPLE from nuisance lawsuits. And really, the standards are so easy to meet! Injury (in fact), causation, redressability. Literally, all you have to ALLEGE (remember, it’s at the pleading stage) is that you have been injured (or are about to be), that your injury can be traced to the conduct alleged, and that the Court can do something about it. That’s it! If you can’t meet that, you don’t have a case or controversy, and why the heck or you in Court?

    But because some people now want a Council of Guardians that will determine what is best for us in all situations, they are trying to get rid of the single best thing that Scalia (and the Rehnquist Court) ever set in motion. And this will have deleterious effects not just on those politically charged cases, but all the way down. Because the vast majority of standing cases aren’t the ones you hear about, but are, instead, routine dismissals of nuisance actions. Not to mention (given the readership of the VC!) the sea-change in environmental actions … the trees do have standing,. AMIRITE?

    Seriously. I feel like there is now a movement to go back to Conley notice pleading just because Regent and Liberty are churning out attorneys that can’t draft a decent complaint, so might as well. Who cares if this would have a deleterious effect on regular people and businesses and incentivize terrible lawsuits?

    Missing the forest for the trees.

    (Okay, going on to part 2 ….)

  9. “But if this is really an order-of-battle problem, then (per Acting SG Wall) it has an order-of-battle solution. Current doctrine already holds that frivolous claims don’t support federal-question jurisdiction.”

    Arghhhh! No. Look, if you don’t agree with “modern standing doctrine,” that fine. But reducing it (as you are doing here) to a merely order of operations? Standing happens to reduce frivolous lawsuits, but not because they are frivolous. Because (all together now) standing goes to the Court’s Article III jurisdiction. Which means that if there is no standing, there is no juridiction.

    ….which means that the Court doesn’t have jurisdiction to entertain the claims. That’s why the Court was concerned. And this gets to the issue with your analogies and hypos. Look-

    Ҥ 1. The Church of Jesus Christ of Latter-day Saints is the established church of the United States, and all citizens shall comply with its tenets.

    § 2. Any person who drives over 55 mph in the District of Columbia is guilty of a felony and shall be imprisoned for not more than two years.

    § 3. Sections 1 and 2 of this Act are inseverable; if either is unconstitutional, the other is wholly inoperative.

    Say that someone in D.C. is pulled over for driving 56 mph.”

    Say that someone is pulled over. Guess what? THAT IS THE INJURY-IN FACT! They have standing!

    But here’s the issue. Imagine someone is never, ever, ever pulled over for driving 56mph and committing the felony. So they bring a declaratory action about their rights under § 1, which they have no standing to challenge, because they really want to challenge section 2. Which they can’t. And also, there is no Section 3.

    Wait, what? Exactly.

    None of these examples make any sense. The Court must assume that there is harm from other provisions because the Court must assume that the other provisions are inseverable, because a provision that is not causing an injury … might be unconstitutional.


    The bald assertion that this novel “bankshot” theory would not affect other cases is risible. Having dealt with the U.S.C., I can assure you that there are, in fact, other laws that have more than one part, and other laws with precatory and hortatory language. If there is a poorly worded definition somewhere, and no severability section, does everything fall?

    I appreciate that, in the end, Sachs does not agree (as no sane person should) that this is a valid challenge. But I cannot comprehend this. I mean, quite literally I have trouble comprehending this. If standing is jurisdictional (it is) then that has to be determined at the outset. The Court has an ongoing obligation to see if there is standing. So … I think that, at best, we should stick with the regular procedure. Courts can (and do) take some evidence when it comes to issues of standing (see 12b1, cf 12b6), and so to the extent you are going with the bankshot theory (you shouldn’t) then you would simply resolve severability FIRST as a jurisdictional issue before looking at constitutionality (you could assume unconstitutionality for purposes of the standing/jx analysis), since the onus is on the Plaintiff to allege jurisdiction. And the Court needs to have jurisdiction prior to merits.

    Or, in the alternative, get rid of this stupid theory, on the grounds that it is stupid. ¯\_(ツ)_/¯

    1. Excellent analysis, loki.

    2. Ok, but would you be willing to say, apply first amendment chilling doctrine to other areas of law as well? And that chilling effect is appropriate to demonstrate standing? Because that has always been my issue with the doctrine … if the government holds a gun to your head and promises not to shoot, that ought to be actionable if not a direct injury. That is already the case for the first amendment (and abortion, apparently, see Whole Women’s Heath) but nowhere else and I think that’s somewhat problematic.

      Now if the gun does not have a trigger, as here, well, then it should not matter, you don’t have standing.

      I am also curious as to your dismissal of the insevitability argument. I thought that was a fairly standard argument … isnt it similar to equal protection cases? In Barr vs. AAPC, AAPC was challenging the government debt exception, not the infringement on their rights. And I know equal protection is special in terms of defining the injury, but … it isn’t a leap, is it?

      1. “I am also curious as to your dismissal of the insevitability argument. I thought that was a fairly standard argument … isnt it similar to equal protection cases? In Barr vs. AAPC, AAPC was challenging the government debt exception, not the infringement on their rights. And I know equal protection is special in terms of defining the injury, but … it isn’t a leap, is it?”

        Not following you at all. Barr v. AAPC had Kavanaugh (majority opinion) recall some basic issues regarding standing and severability- specifically, that just because a party might have standing to challenge one part of a law, doesn’t mean that they have standing to challenge OTHER provisions of the law.

        This is one of the (many) cases that cause my confusion. The “bankshot” theory is, quite literally, the opposite of what the law, as recently as, oh, a 2020 opinion, just said.

  10. Aren’t there numerous examples of laws being nullified by eliminating the penalties without removing the whole law from the books?

    Things like notifying cops you have a gun, etc?

    Wouldn’t this analysis be better informed by the observation that there are tax items that are reportable, but not taxable?

    “One of the mistakes that taxpayers make is conflating a zero percent rate with being exempt from tax: it is not the same thing. In some instances, if you are exempt from tax (or a specific kind of tax), you don’t have to file a tax return at all. Examples include taxpayers who do not earn enough income during the year to be subject to meet the income requirements for filing a return (read more about whether you need to file in 2017 here).

    That’s not necessarily the same as being taxed at a zero percent rate. You may receive income that is taxed at zero percent but is still reportable. A good example is the zero percent tax rate on long-term capital gains. It’s not an exemption: long term capital gains are taxed at zero percent for taxpayers in the 15% marginal tax rate or below (you can find the tax rate tables for 2016 here). If you are required to file a tax return, those transactions are still reportable even if they are not taxable.”

  11. A difficulty with the court’s standing doctrine is thst it imhas regularly bent it when it wants to reach the merits.

    A classic example is the idea that non-profits are harmed, and hence have standing, when they divert resources from other matters. Nothing forces a non-profit to address a particular issue. It is the non-profit’s choice. Indeed, it is hard to see how a non-profit, considered in its own right, is harmed when it diverts resources from other non-profit orojects to pursue a non-profit opportunity thet it considere ideologically more relevant. We wouldn’t say a for-profit business is harmed when it diverts resources from other projects to pursue a business opportunity it considers a better business fit.

    Having an ideologically meaningful project to pursue attracts funds and helps the non-profit grow. If there was nothing to pursue, would the non-profit exist?

    Twisted conceptions of standing for ideologically sympathetic cases give ideologues hope that since they really care about the issue, surely the justices will. And after all, there’s a long line of precedents for bending rules for issues the justices care about.

    One is reminded of Justice Douglas’ declaration that trees ought to have standing. Or the line of cases with atheists suing over religious symbols in monuments and such. Feel really strongly about the issue, and surely there must be harm.

  12. Standing doctrine comes from the fact that, according to the constitution, the judiciary cannot issue advisory opinions. Even that isn’t all that clear, but let’s assume for the moment that, as most legal people agree, is a valid proposition.

    In this case, suppose the judiciary issues an injunction against a piece of legislation that has no enforcement, and explicitly does not give a way to enforce it. As here. (Note, if it wasn’t a tax, it is possible to say otherwise, but as it stands it is a tax with zero penalty.) If the court says, this is unenforceable, and it is alteady unenforceable, well, that’s a truism. The court isn’t really doing anything but stating the fact. You can’t simply demand the court do that. The point on writ of erasure is sound. This seems to be a clear case where standing doctrine forbids the case.

    The establishment clause is somewhat different as that targets the “establishment” of religion, and the court is issuing an injunction against that establishment. If you have a piece of law saying “Catholics is the national religion” a court can issue an injunction saying “no it isnt”. Even a law saying “you must have health care” might trigger something (not under current precedent, but hypothetically) but a law saying “the tax penalty for not having health care is $0” … there is effectively no law here. The court cannot issue an injunction because the law effectively does not exist and there is no standing. And the latter is the reading NFIB (incorrectly imo) adopted.

    In my opinion, the extensions of standing doctrine, such as the notion of having to prove an injury, is kinda dumb. There are cases where if a law has not been enforced for a while you don’t have standing. Well, just because a law hasn’t been enforced doesn’t mean it can’t be, and are you really encouraging people to violate enforceable laws? For example, suppose some business is outlawed, but that provision hasn’t been enforced. You are in the business seeking a loan, but the banks won’t lend to you because of that provision.

    That should be an injury. And it isnt an advisory opinion because the person is actually challenging the law. Modern precedent says it isnt (with the exception of abortion and free speech, because of course those are exceptions.) but I think that is wrong. Nonetheless, if that controls, there is worse of a case here.

    1. No. No offense, but what you are writing isn’t quite right. It’s a facile understanding of a few concepts. I’m not being harsh- as ReaderY (correctly) points out, standing can be twisty, it is difficult, and it often gets violated by people who really, really just want the court to issue an advisory opinion.

      But you need to start by understanding where you first went wrong. Standing doesn’t just exist in Federal Courts- it exists in state courts, too. It’s just not constitutional because, um, duh. And it’s not just about advisory opinions, nor is that where the doctrine comes from.

      At the core, standing is a very simple proposition; contra Elton John (I’m still standing!) it’s about making sure you have an actual case or controversy (sound familiar?) before the court. In other words, the right litigants. People with adverse interests. Who have a stake in the matter. In a matter that is ripe. That won’t result in just an advisory opinion. About something the court can do.

      So that’s why you get all of these related issues that get tossed into standing (ripeness, advisory opinions, political questions, yada yada yada). Yet another big part of is that the Court wants facts- a record. They aren’t supposed to pontificating about stuff in general and fevered hypothetical; you are supposed to bring them, you know, things that actually happened!

      So sure, you have the weird-o exceptions that were on the way out (taxpayer standing … Flast … but see Valley Forge, etc.). But other parts of this analysis (and your note, supra) are just incorrect. The First Amendment, and chilling, isn’t an exception to standing; instead, it just goes to show how EASY standing is to allege. From Laird on, you can’t just allege that you think your speech would be chilled (the “subjective” allegations); you have to allege that your speech was chilled, with facts and stuff – and there’s an objective component. Otherwise … think of all the BS cases that would be allowed….. (“Yer honor, I know that nothing has changed, but someday I might want to say something, maybe, that might be changed, perhaps, but for the existence of this law!”).


      The worst of this, of course, is that everyone runs and thinks of terrible constitutional violations. NEWS FLASH! That isn’t what is happening in the courts. What is happening is that real attorneys who defend people, businesses, and local governments (which, again, are your tax dollars) from bogus law suits from officious busybodies …. we get these cases tossed out. Not because a terrible violation of the law is occurring, but because these nuisance lawsuits are a massive drain on everyone.

      Again, it’s the difference between actual practice and theory. Between the cases that are litigated day-in, day-out, and the handful that make for blog entries and OUTRAGE.

      1. And in actual practice, the SCOTUS said “we don’t care that this law is unconstitutional, and that if it were enforced you would be harmed. The state of Utah has said they aren’t currently going after your family with it’s draconic, unconstitutional, blatantly rights-violating ‘cohabitation’ law, so we’re not going to bother ruling.”

        And then the family said “fine, we’re leaving Utah, because we don’t want a sword of Damocles hanging over our head”.

        The fact is, SCOTUS (and all courts) hide behind standing to avoid doing the right thing, just because it’s a hard thing. There’s no merit in that.

  13. As usual, the conservative justices will wrestle with all this stuff, while the liberals just say “we like Obamacare, and we’re not going to rule against it”.

    Which is why the liberals have a natural advantage.

    1. You know I was gonna disagree, but there is something to that, right?

      I think part of that is that conservatives control the judiciary but liberals control the academy. Therefore, it is easy for liberal arguments to gain widespread acceptance. It is difficult for conservatives to do that without confronting the issues at hand. This is annoying for conservatives, expecially when it happens to be conservative rulings on standing that have made it difficult here.

      But isn’t that a good thing? Just because bad liberal arguments are widely accepted doesn’t make them good, and even when they do get through court they are eventually unworkable and ignored (see: Abood, Williamson County, even Roe). Whereas a lot of conservative rulings are pretty solid arguments, because the barrier to entry is higher.

      And conservativie arguments are more likely to be accepted at court. It also means that liberals can be dismissive of really strong arguments that do have an impact. For example, few people thought that Hans v. Louisiana was right and it was plainly ignored, until conservatives revived soverign immunity doctrine and developed it into a strong foundation. But those arguments were dismissed dispite their validity and now you have for example 9-0 in Allen v. Cooper.

      And losing high profile cases but winning everything else (stuff that matters to lawyers in particular) because of strong arguments and a favorable judiciary is not the worst tradeoff.

    2. Given that the decisions in the lower courts are clear examples of conservative judges twisting long-standing principles of law to get to the interpretation they want, this is a pretty hilarious take.

  14. Can’t believe this is still being litigated. What a joke the ACA is. Total junk from start to finish.

    1. Come off it, ML. Litigation being ongoing has nothing to do with the merits of the law, and everything to do with GOP performative partisanship.

      You certainly realize that.

      And yet you posted this.

      You are getting emotional and self indulgent in your old age.

  15. I noted the discussion on standing and wonder why there is not standing for being PO’d that the other side got something passed. Would it not be better and more honest for some of the state AG’s to say that we oppose the ACA because we don’t like President Obama. It may not be a compelling argument but it has the virtue of honesty.

  16. Well, I’m convinced.

    The courts are super-fucked if they will straight-faced say “you can’t sue the US for imposing a state religion”.

    Further, if courts were willing to say “well, there’s no possible relief, but we’re going to go ahead and assess on the merits so that said merits (and possibly ruling of something as unconstitutional) can become part of the record and set precedent” then we wouldn’t have the rampant “qualified immunity” abuses.

    So… yeah. You’ve convinced me the courts fucked themselves with a rusty rake, and the rest of us are left trying to figure out how to get justice out of this broken system.

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