The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
It also highlights some key weaknesses of this particular lawsuit — weaknesses that led many people who supported previous legal challenges to Obamacare to oppose this one. I fall into that category myself…
Somewhat surprisingly, Thursday's ruling did not directly address the merits of the case. Instead, it dismissed the states' lawsuit because the plaintiffs don't have "standing" — namely, they didn't suffer a concrete injury caused by the action they claim is illegal….
The states argued that the mandate imposes expenses on them by incentivizing some citizens to enroll in state-run health-care programs. But those burdens weren't caused by the individual mandate, Justice Stephen G. Breyer argued for the majority. As Breyer points out, "the States have not demonstrated that an unenforceable mandate will cause their residents to enroll in valuable benefits programs that they would otherwise forgo…"
Issues of standing aside, the court's emphasis on the lack of connection between the now-toothless mandate and other parts of the ACA highlights the weaknesses of the substantive argument at the heart of the plaintiffs' case. It is hard to claim that the mandate is inseverable from the rest of Obamacare if it has little or no practical effect. I would have preferred that the court simply decide the case on the merits entirely, rather than dismiss based on standing. But the two are interconnected….
All but two justices joined the majority — which is good news for observers worried that the two wings of the court always vote along partisan lines. Four conservatives voted with the three liberals…. It's yet more evidence — along with rulings such as the 2020 election case and Trump-era litigation over sanctuary cities — that conservative judges are not simply Republican politicians in robes.
For technical reasons, today's decision may not put a final end to the severability challenge to the ACA. But after today, it is hard to see how a majority would ever be willing to rule that the residual mandate is essential to the law as a whole. If the ill-conceived severability argument is not completely dead, it is at least on life support. That's good news for those who value the rule of law, including those of us who aren't fans of the Affordable Care Act.
NOTE: I joined an amicus brief on the severability issue in this case, along with co-blogger Jonathan Adler and several other legal scholars who were on different sides in previous ACA-related cases.