The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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As originally enacted in 2010, the Patient Protection and Affordable Care Act required most Americans to obtain minimum essential health insurance coverage.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.
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.