The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
We are nearing the end of April, and June is coming closer and closer. Any day now, the Court could decide California v. Texas, the ACA case. After the case is decided, the press will immediately declare a single winner or loser. But the elements of the case are far more complicated. Here I would like to offer a range of possible outcomes for the case.
- Option 1.a: Neither the individual plaintiffs nor the states have standing. The case is dismissed.
- Option 1.b: The individual plaintiffs have standing, but the states do not have standing. The case proceeds.
- Option 1.c: The individual plaintiffs lack standing, but the states do have standing. The case proceeds.
- Option 1.d: Both the individual plaintiffs and the state have standing. The case proceeds.
- Option 2.a: The "mandate" is still constitutional. The case is dismissed.
- Option 2.b: The "mandate" can no longer be saved by the NFIB saving construction, but is constitutional for some other reason Chief Justice Roberts cooks up. The case is dismissed.
- Option 2.c: The "mandate" is no longer constitutional. The case proceeds.
- Option 3.a: The "mandate" can be severed from the rest of the ACA.
- Option 3.b: The "mandate" cannot be severed from the ACA's guaranteed issue and community rating provisions.
- Option 3.c: If the "mandate" is unconstitutional, then the District Court can also enjoin the other elements of the law that injured the Plaintiffs with standing. (Here the differences between Options 1.b, 1.c, and 1.d become important).
- Option 3.d: If the "mandate" is unconstitutional, then the "major" provisions of the ACA are unconstitutional.
- Option 3.e: If the "mandate" is unconstitutional, then the entire ACA is unconstitutional.
The Cato Brief selected Options 1.b, 2.c, and 3.c. If the Court agrees with us on 1.b and 2.c, I'll declare victory. That holding would reaffirms the core of our argument: the ACA still imposes an unconstitutional mandate to purchase insurance, separate from the penalty. And between friends, I suspect the Plaintiffs will be happy with that outcome as well. I've always been less certain about severability, in large part because the Court is very fractured on that issue. If we get more than two votes on 3.c, I'll consider it a bonus.
Alas, if history is any guide, this Obamacare cases may once again throw us for a loop.