What Happens After the Remand in California v. Texas?

The Supreme Court "remand[ed] the case with instructions to dismiss." But the District Court never ruled on the Plaintiffs' request for injunctive relief.

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.

Comments

[Sebastian Cremmington]

The justices don’t want to embarrass the lower court judges and the Republican AGs by stating the obvious—the zeroing out of the mandate isn’t part of the ACA but the Trump Tax Cut!!

[Brett Bellmore]

The problem, of course, is that, in a constitutional game of chicken with the Court, Congress had deliberately omitted a severability clause. So you weren’t going to get 7 votes saying it was severable.

[David Nieporent]

That’s not how severability analysis works.

[Chernobog]

Note how Josh doesn’t even begin to argue that the plaintiffs’ standing for injunctive relief is any different than their standing for declaratory relief. Because it isn’t. Let it go, dude.

[Shadowy Agent]

I know if you don’t have standing you cant ask for injunctive relief. Plus without a “tax” what is it that the states are complaining about.

[John F. Carr]

The mandate rule would seem to apply. “Remand the case with instructions to dismiss” means the case is over whether or not the court overlooked a live claim.

[Brett Bellmore]

That occurred to me. Dismiss means dismiss. It’s over, what part of that doesn’t Josh understand?

[ReaderY]

Standing 101:

No standing, no jurisdiction.
No jurisdiction, no authority to issue an email injunction.
It doesn’t matter if the injunction request somehow lay outside the certiarari petition for some sort of technical procedural reasons.
If there’s no jurisdiction over the case, there’s no authority to issue an injunction.

End of story.

[David Nieporent]

Prof Blackman is a relentless self-promoter and an irresponsible speculator, but now he has crossed the line to making legally frivolous arguments.

It is true that one can lack standing to bring one claim but have standing to bring another. But regardless of the styling of subject headers in this particular complaint, an injunction is not a cause of action. It is a remedy. If they didn’t have standing to bring the claims, then there is no issue for which they can seek an injunction. They lack standing on that basis as well.

[Earnest]

Sometimes I feel like JB just posts for the sake of taking up space. This is such a post, and JB wouldn’t have posted it if he paused for 2 seconds to consider. 1. Appellate courts don’t dismiss claims; 2. count 5 is just a claim for relief and an injunction is not a cause of action; 3. What happened at OA is irrelevant, what matter is what’s in the opinion/order. A “remand with instructions to dismiss” = CA5 will just send it back to the district court to dismiss for lack of standing.

[whey_standard]

***COUNT FIVE
Injunctive Relief Against Federal Officials from Implementing, Regulating, or Otherwise Enforcing the ACA

76. Plaintiffs incorporate the allegations contained in paragraphs 1 through 75 as if fully set forth herein.

77. 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.***

How exactly do you proceed on just that, Josh?

[Kords]

One usually needs standing to pursue injunctive relief, no? Come on.

[Formerly Known as Stash]

Since it is my area, bit of a nitpick here. “A False Claims Act case would suffice.” Nope. I don’t see how a False Claims Act action could turn on the constitutionality of the ACA, i.e. that its unconstitutionality could be a defense. All that is needed is a false claim. Let’s say an insurance company falsely claims too big a subsidy by providing false cost information. I don’t see how it matters one bit that the subsidy was unconstitutional to start with. The gist of the action is getting the government to pay money based on a false statement. I don’t see how the fact that the insurance company could not have been constitutionally paid in the first place lets it avoid liability for money fraudulently obtained. Sounds like the guy who murdered his parents asking for mercy because he’s an orphan. The payout is still corruptly obtained, and would not have been paid absent the fraud. The invalidity of the law is irrelevant to the offense.

Okay then. What about a “reverse false claim”? That is where a false statement is made to conceal an obligation to pay the government. Maybe I am not familiar enough with the ACA, but isn’t it funded by taxpayers? Seems to me such an obligation would be concealment of an obligation to refund an over-payment of some kind, and the same logic above would apply.

Alright then, what about a false certification of compliance with the law or regulations (that are invalid)? Well, that certification is still false (and maybe more blameworthy because you didn’t even have to comply) and, again, it caused payment of money that would not have occurred but for the false statement.

By way of example, let’s say a defendant sends an entirely fictitious invoice under an unenforceable contract that nevertheless gets paid. Defendant can’t say “well, the contract was invalid, so I can’t be liable for my ill-gotten gains.” Defendant is excused from any “breach,” but not the fraud.

This doesn’t even get into the question of whether one should be estopped from claiming the statute invalid after one sought, received and accepted benefits under it.

In short, notwithstanding Prof. Blackman’s offhand and apparently ill-considered suggestion that the ACA’s putative unconstitutionality could be asserted in a False Claims Act case, do NOT commit fraud against the United States in order to gain standing to challenge the ACA. It would not end well.

[Brett Bellmore]

I think the best case for standing against the zeroed out mandate, would be somebody who was under a legal obligation to affirmatively follow the law regardless of any lack of penalty. Perhaps they’re on parole, or in a job with a ‘good character’ requirement.

When they zeroed out the penalty, they didn’t remove the language mandating compliance, or describing failure to insure as unlawful. So you ARE actually acting unlawfully by not getting the insurance, even if the penalty is $0.

[whey_standard]

Do you have an example of a parole condition or government job requirement that imposes a duty to abide by all unenforceable federal statutes?

[Chernobog]

Why would invalidating the ACA be an appropriate remedy in that hypothetical, as opposed to modifying the parole condition?

[Brett Bellmore]

Why would a law making it illegal to not do X invalidate a parole condition that one refrain from law breaking or go back to jail? All the parole condition does here is establish harm, and so standing.

[Sarcastr0]

Good luck finding a vehicle for that as-applied challenge.

[Shadowy Agent]

Not to mention that other than free speech cases a statute must be enforced to actually be challenged. Has a parolee been charged for not having insurance? There are many statutes on the books that are unconstitutional but are simply not enforced.

[MonitorsMost]

What happens on remand? The case gets dismissed.

Even to the extent that we would accept Hawkins’ response to the question as correct (which I don’t think it is), that would be how do you fix redressability. The court kicked it on traceability. There’s no surviving claim (or more accurately, a remedy) for a permanent injunction following the Court’s ruling.

I wasn’t even going to bother until I heard Advisory Opinions uncritically reference this nonsense post. Please don’t make people stupider about the law.

[MonitorsMost]

Breaking news: Generalissimo Franco is still dead.