The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I wrote a post about the importance of the first sentence in California v. Texas. This post will focus on the last sentence in the opinion:
Therefore, we reverse the Fifth Circuit's judgment in respect to standing, vacate the judgment, and remand the case with instructions to dismiss.
Justice Breyer's majority opinion did not recount the case's procedural posture. But here, the District Court ruled on a motion for partial summary judgment. When the Supreme Court gives "instructions to dismiss," the Fifth Circuit can only dismiss the claims that were before it. The District Court had not yet resolved Count 5 of the Amended Complaint. It provided:
Plaintiffs are entitled to a permanent injunction against Defendants from implementing, regulating, or otherwise enforcing any part of the ACA because its requirements are unlawful and not severable from the unconstitutional individual mandate.
Count 5 seems consistent with the Federal Government's theory of the case: an injunction to block the inseverable portions of the unconstitutional mandate. And it applies to both the state plaintiffs and the individual plaintiffs. (Sorry Justice Breyer, there was no waiver.) During oral argument, Justice Gorsuch asked Texas Solicitor General Kyle Hawkins about what sort of injunction his clients sought. Hawkins replied with--you guessed it--Count 5:
Justice Gorsuch: What do we do about the fact that usually judgments in aid of preexisting remedial jurisdiction, we'd normally require some proof that we can remedy a plaintiff's injury more concretely than just a mere declaratory judgment? . . . You'd have to show that there would be an injunction that would be available and then this is essentially an anticipatory action.
General Hawkins: So two things, Justice Gorsuch. Number 1, the United States in district court insisted that an injunction would not be necessary and that it would treat the declaration as an injunction. And we took them at their word. Second, if that's not good enough, Count 5 in our complaint is still pending in district court. And that is our request for injunctive relief. And that still a live issue before the district court. And we can pursue that remedy, if necessary.
Now, it is necessary for Texas to pursue that remedy. The Fifth Circuit cannot dismiss Count 5. And, after the remand, the Plaintiffs can proceed with Count 5 before the District Court.
Plus, someone, somewhere, will contest the ACA is unconstitutional in a defensive posture, where standing is not at issue. I raised this possibility in November. A False Claims Act case would suffice. Justice Alito teased the possibilities in Footnote 9 of his dissent:
And in any event, many other parties will have standing to bring such a claim based on a variety of the ACA's substantive provisions that are arguably inseverable from the mandate. Our Affordable Care Act epic may go on.
Yes, the epic will go on. I really hope I don't have to write a fourth book.
I recognize that the Court likely wanted to get rid of this case as painlessly as possible. But this punt on traceability was short-sighted. The Court should have bitten the bullet and held that the mandate was unconstitutional, but severable. That hold would have settled the issue for good. The price of a 7-2 opinion was not worth it.