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Affordable Care Act

My Washington Post Op Ed on Today's Supreme Court Obamacare Decision

The article explains the Court's ruling, and why the plaintiff states deserved to lose on the main issue.

|The Volokh Conspiracy |


The Washington Post just published my op ed on today's Supreme Court ruling in California v. Texas, the Obamacare severability case. Here is an excerpt:

On Thursday, the Supreme Court rejected, in California v. Texas, a challenge to the Affordable Care Act brought by a coalition of Republican-controlled state governments. The 7-to-2 decision is a notable setback for Obamacare opponents, and another indication that several of the Supreme Court's conservative justices are willing to rule against conservative Republican causes.

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.

I offered additional thoughts on today's ruling here. My post on the November oral argument in the case includes links to various of previous writings on the subject.

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.