Affordable Care Act

BREAKING: SCOTUS Holds 7-2 Texas Lacks Standing to Press Obamacare Claim (Updated)

The Supreme Court properly concludes that there is no standing to challenge a legal provision that has no effect.


As expected, the Supreme Court rejected Texas' latest challenge to the Affordable Care Act in California v. Texas. Perhaps surprisingly, the Court held 7-2 that the plaintiffs lacked standing to challenge the constitutionality of the individual mandate now that there is no consequence from violating it. Perhaps even more surprisingly, the opinion was written by Justice Breyer. This was surprising on two grounds: 1) Most assumed the Chief Justice would keep the opinion for himself, and 2) Justice Breyer is something of a dove on standing, and has never been particularly aggressive about enforcing the limits of Article III jurisdiciton.

Justice Breyer's opinion was joined by the Chief Justice and Justices Sotomayor, Kagan, Kavanaugh, and Barrett. Justice Thomas filed a concurring opinion. Justice Alito dissented, joined by Justice Gorsuch.

I argued in multiple posts on this blog that the plaintiffs lacked standing to pursue their claim, but I confess I did not expect this position to get five votes. (My prior posts on this case are indexed at the end of this post.) While I thought a standing ruling would appeal to the Chief, I thought he'd have a hard time building a majority for that position. I was wrong.

I was not wrong, however, in claiming that Justice Barrett's confirmation would have no outcome on the case. It may have been useful to claim otherwise for purposes of fundraising and political campaigns, but it was always clear this would not be a 5-4 decision (and there were reasons to suspect Justice Barrett would be sympathetic to the standing claim).

Justice Breyer's opinion for the Court begins with this summary:

As originally enacted in 2010, the Patient Protection and Affordable Care Act required most Americans to obtain minimum essential health insurance coverage. The Act also imposed a monetary penalty, scaled according to income, upon individuals who failed  to do so. In 2017, Congress effectively nullified the penalty by setting its amount at $0. See Tax Cuts and Jobs Act of 2017, Pub. L. 115–97, §11081, 131 Stat. 2092 (codified in 26 U. S. C. §5000A(c)).

Texas and 17 other States brought this lawsuit against the United States and federal officials. They were later joined by two individuals (Neill Hurley and John Nantz). The plaintiffs claim that without the penalty the Act's  minimum essential coverage requirement is unconstitutional. Specifically, they say neither the Commerce Clause nor the Tax Clause (nor any other enumerated power) grants Congress the power to enact it. See U. S. Const., Art. I, §8. They also argue that the minimum essential coverage requirement is not severable from the rest of the Act. Hence, they believe the Act as a whole is invalid. We do not reach these questions of the Act's validity, however, for Texas and the other plaintiffs in this suit lack the  standing necessary to raise them.

Here is how Justice Breyer summarizes the holding in his conclusion:

we conclude that the plaintiffs in this suit failed to show a concrete, particularized injury fairly traceable to the defendants' conduct in enforcing the specific statutory provision they attack as unconstitutional. They have failed to show that they have standing to attack as unconstitutional the Act's minimum essential coverage provision. Therefore, we reverse the Fifth Circuit's judgment in respect to standing, vacate the judgment, and remand the case with instructions to dismiss.

Justice Thomas wrote a concurrence sharing the frustration many of us have had with the Court's prior ACA opinions. His opinion begins:

There is much to commend JUSTICE ALITO's account of "our epic Affordable Care Act trilogy." Post, at 1 (dissenting opinion). This Court has gone to great lengths to rescue the Act from its own text. Post, at 1–2. So have the Act's defenders, who argued in first instance that the individual coverage mandate is the Act's linchpin, yet now, in an about-face, contend that it is just a throwaway sentence.

But, whatever the Act's dubious history in this Court, we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in  attacking the Act—they have not identified any unlawful action that has injured them. Ante, at 5, 11, 14–16. Today's result is thus not the consequence of the Court once again rescuing the Act, but rather of us adjudicating the particular claims the plaintiffs chose to bring.

He repeats this theme in his opinion's conclusion:

The plaintiffs failed to demonstrate that the harm they suffered is traceable to unlawful conduct. Although this Court has erred twice before in cases involving the Affordable  Care Act, it does not err today.

Precisely so.

Justice Alito's dissent, joined by Justice Gorsuch, concludes the plaintiffs have standing, the mandate is unconstitutional, and those provisions of the ACA that burden states are unenforceable. His opinion begins:

Today's decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two. In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue. , , ,

In this suit, as I will explain, Texas and the other state plaintiffs have standing, and now that the "tax" imposed by the individual mandate is set at $0, the mandate cannot be sustained under the taxing power. As a result, it is clearly unconstitutional, and to the extent that the provisions of the ACA that burden the States are inextricably linked to the individual mandate, they too are unenforceable.

Justice Alito correctly notes that the Court has been unduly solicitous of state standing claims in recent cases. He is wrong to urge the Court to compound the error by finding standing here, however. Insofar as the majority opinion puts the brakes on overly aggressive state standing claims, that is all to the good.

Justice Alito's dissent concludes:

No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats. A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. So a tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation's history. Fans of judicial inventiveness will applaud once again.

But I must respectfully dissent.

I will have more to say on the Court's ruling in subsequent posts, as I suspect my co-bloggers will too.

NEXT: The Real Enemies of Democracy

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  1. Just like the APA (see yesterday’s post about oil and gas leases), standing is a double-edged sword…

  2. Not surprising. I’m guessing a Roberts opinion.

    1. Breyer, actually. Thomas wrote a concurrence that boils down to “I hate this ACA and want to burn it to the ground, but come one, this is ridiculous.”

      1. So I was wrong. It happens.

  3. The Supreme Court properly concludes that …..

    Always amuses me to see that agreeable decisions are proper, and disagreeable ones are improper. There’s so much hand waving and politics in Supreme Court decisions that the very concept of “proper” is just another political aspect.

    1. You object to the use of adverbs to signal that the author agrees with something?

      1. I find it amusing when the author won’t come out and admit he likes the outcome for personal ideological reasons, but has to hide behind “proper” and other euphemisms.

        I also find it amusing when other commenters similarly hide behind faux-outrage when this is pointed out.

        1. It seems to me that you’re struggling with the English language. Writing “properly” exactly doesn’t signify that the author “the outcome for personal ideological reasons”, but rather that the author thinks the issue is correctly decided. That is, the author agrees with the outcome as a legal matter.

          1. What a cop-out! “You don’t agree with me, therefore you must not be speaking your native language very well.”

            Fits my two comments to a T.

        2. If I’m not mistaken, this particular author played an important role in advancing a previous challenge to the ACA that was rejected by the Supreme Court. I don’t think Adler’s position here has anything to do with his ideological support for the ACA.

        3. What word would you use to describe the author stating that the decision is correct on grounds irrelevant to the author’s personal ideology? As an example, suppose my daughter adds 2 + 2 and then says it equals 4. I think she’s right. How should I describe her conclusion, in your view?

    2. What would you have used? Correctly?

  4. As the Court has gotten more conservative, the number of votes to uphold Obamacare has increased. 5-4, to 6-3, now 7-2.

    Conservatives won’t stop filing Obamacare challenges until they lose one 9-0!

    1. I suspect that is a good prediction.

    2. Not even then, Dilan.

      As long as there are RW lawyers or politicians trying to make a reputation there will be those ready to tread the path from Texas to the 5th Circuit and SCOTUS with whatever spurious argument they can gin up.

  5. It is interesting that SCOTUS is rejecting many cases on standing. Suggests to me that the Robert’s court will be know for stepping back and not jumping into every fray. If you want the court to decide you are going to first need a good argument, starting with standing. I don’t see this as bad and hopefully it will force more decisions from Congress.

    1. Being tough on standing is a long-standing (no pun intended) conservative shibboleth, their way of pushing back against judicial activism. But sometimes it gets you non-conservative outcomes.

    2. It’s definitely bad. Court is failing to do its job. Standing as a principle needs to be banned.

      1. Like I said in the first comment above, standing is a double-edged sword. One day it’s a reason not to have to decide something about the environment, the next day it’s a reason to uphold ACA.

      2. Take a minute to think about what you just said.

        If standing were ended people could sue anybody for anything. There has to be a framework for lawsuits or else there is chaos. What the Roberts Court is saying is we will be tougher in what we will decide upon. Conservative have always wanted the court to be more restrained in its action and that is preciously what SCOTUS is now doing.

      3. Standing is a constitutional requirement.

    3. What is the legal impact of vacate/remand with instructions to dismiss vs. actually “dismissing” the case at SCOTUS level??

      1. As far as I know it is pure formality. That’s the way things are done in our system. The case belongs to the trial court and the higher courts only borrow it. If we had a system with a de novo trial in a higher court then the higher court could dismiss the case.

  6. Another step along the path toward universal health care in America.

    1. Before you go down that path, with the unspoken power grab of universal, single payer status, bringing development of new drugs out of the yicky world of for profit into the wonderful, productive world of government command and control, may I make a suggestion?

      Instead of starting with a life vital realm like medicine, first test it out on fluff.

      Have the government take over video games or iPhone sales and development in an identical single-payer scenario. Outlaw companies doing this for profit, instead having to go before a board to bend the knee and ask for an approved profit.

      I’m sure the number and quality of new games will go up rather than down, and the number of features in the new iPhones go up rather than down.

      Only when proven to improve the quality and rate of unimportant fluff like new phones and games, should it be rolled out to vital stuff like medicine.

      We like science!

      1. Except that fluff and necessities aren’t even remotely comparable. Nobody is going to die if they can’t get a video game. They might if they can’t get necessary health care.

        And, while I believe in a more expansive government than many here, I don’t believe in using it on fluff. I’m fine with private companies mowing my lawn, cleaning my swimming pool and detailing my car.

        1. I think his point is that if the number of video games would go down under a publicly run system, the same is true in health care, in which event more people are “going to die” under a public system.

        2. Nobody is going to die if they can’t get a video game.

          My 10-y.o. would disagree with you.

      2. “bringing development of new drugs out of the yicky world of for profit into the wonderful, productive world of government command and control”

        This is dumb. Lots of drugs are developed by private companies in countries that have universal health care. Not a surprising observation, since basically every other developed country has universal health care. Also there’s plenty of ways to provide universal health care other than single payer.

      3. Single-payer does not necessarily mean the government takes over health care (as in the UK, nordic countries, etc.). Some single-payer systems (like Canada) purchase healthcare from private organizations. That’s also how Medicare works here, too.

    2. I disagree. Had the ACA been overturned I think there would have been a push for Medicare for All as the only alternative. Upholding the ACA means that market based health care will be the rule for the foreseeable future.

  7. SCOTUS has abdicated standing in general.

  8. Note that Alito’s dissent in Nestle v. Doe was essentially standing by another name. He criticised the others for essentially giving an advisory opinion.

  9. Standing – getting courts out of doing their job since 1787.

    The court continues to make ridiculous rulings on the ACA. It really is amazing. Alito and Gorsuch’s dissent is the proper decision.

    1. The job that the courts have was decided in Article III of the Constitution. Standing is a component of Article III. If they issued advisory opinions outside the context of a case or controversy, that would be unconstitutional.

  10. Quite a day for Alito. He authored a dissent (ACA) and an angry concurrence in the judgment (Fulton) that were both much longer than the opinion of the Court.

    1. I read Alioto’s decision and think, “Christ what an asshole.”

      1. That’s my reaction to most Alito opinions. On extremely rare occasions it’s “Heartbreaking: The Worst Person You Know Just Made A Great Point.”

    2. It’s pretty clear that Alito is physically incapable of voting for any decision that is contrary to Republican orthodoxy. Apparently he’s mad that the other conservative justices actually pay attention to the law/Constitution and aren’t just political hacks as well.

      1. My direct experiences with Justice Alito persuade me to believe that he genuinely swallows Republican-conservative orthodoxy as ‘the one true way.’ He is not merely reading from and following a political-religious playbook; he is a true believer with respect to all of it.

        His beliefs have become more severe over time. But I do not believe it is political hackery. He is a grievance-saturated, disaffected, obsolete man to the core.

  11. The Barrett scaremongering was ridiculous considering that she had already said the plaintiffs lacked standing. If Democrats had honestly believed she was a threat to the ACA they would have moved to recuse her based on her prior expressed opinion.

    1. Most of the Barrett scaremongering I saw was about abortion.

      Which…we shall see.

      Also, you can’t move to recuse a Justice.

      1. There was a widely publicized case where Scalia denied a motion to recuse him.

        1. I mean, anyone can say anything, but it has zero effect.

  12. For the record, Justice Thomas joined the majority opinion AND authored a concurrence. You forgot to list him among those that joined with Justice Breyer.

  13. The plaintiffs’ best argument – in my view not a very good one – wasn’t considered because it was never raised in the cert perition. That was the argument that the law was inseverable. Inseverability might potentially permit injuries caused by constitutional provisions to provide standing to challenge a different provision that didn’t itself cause the injuries.

    What’s interesting here is that the majority opinion simply assumed severability in deciding standing, or at least implicitly held that unless inseverability is expressly raised, severability will be presumed. Justice Thomas’ concurrence discussed the issue and said that standing always assumes severability; inseverability is a merits/remdies issue that can’t be raised until the standing bar is passed.

    1. Except the severability applies to the Trump Tax Cut not the ACA legislation.

  14. Conservatives suddenly discovering they hate standing is a tell.

  15. If the penalty has no penalty then it is no need of a savings interpretation as a tax, and so the fact that it is no longer a tax either is the same reason why it is no longer a penalty. In which event there’s no longer any constitutional infirmity, either. What a waste of time.

    It was an idiotic challenge and would have lost even if not championed by a professional idiot like Ken Paxton.

    1. The individual argument for standing was even worse. “I want to obey the law even though there’s no penalty if I don’t, so I have standing to challenge it.”

      1. The existence of a law should provide a person standing to challenge it. I suspect you’d be singing a different tune if Congress passed a law requiring federal buildings to put up flags denouncing homosexuality. You’d say that homosexuals walking by would have standing due to their feelings being hurt.

        1. Ah, The love that dare not speak speaketh its name. Those were the days.

        2. “The existence of a law should provide a person standing to challenge it.”

          That may be how it works in Nigeria, but that’s now how we do things in America.

    2. ” by a professional idiot like Ken Paxton ”

      Could we agree on ‘semi-professional?’

      If only because he seems destined to lose his professional license?

  16. What I found most interesting about the dissent was not the use of legislative history – although that ought to be anathema to a textualist like Gorsuch at least – but the fact that Alito so clearly missed the real import of the legislative history: the fact that every single Republican who supported the zeroing-out of the tax – including of course President Trump, who signed it into law – and who spoke on the subject said explicitly that they were doing away with the mandate.

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