The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I am happy to announce that my fourth article in the Cato Supreme Court review will be published on Constitution Day. And, if all goes to plan, I will make my first trip to Washington D.C. since early 2020.
Here is the abstract of Unreviewable: The Final Installment of the "Epic" Obamacare Trilogy:
Over the past decade, Obamacare has faced three existential legal challenges. And in each "installment [of the] epic Affordable Care Act trilogy," the Supreme Court rebuffed those attacks. First, NFIB v. Sebelius saved the ACA's individual mandate as an exercise of Congress's taxing power. Second, King v. Burwell held that the ACA, which subsidizes only health care exchanges "established by the State," also subsidizes the federal exchange. And this past term, California v. Texas held that the latest challenge to Obamacare was unreviewable. After three rounds, Obamacare remains undefeated before the Supreme Court.
And the vote wasn't even close. Seven members of the Court found that plaintiffs lacked standing. Justice Samuel Alito dissented with Justice Neil Gorsuch. They found that the state plaintiffs had standing, the mandate was unconstitutional, and certain portions of the ACA that injure the states should be enjoined. However, the majority and dissent did not address my preferred theory of standing-through-inseverability, which was also advanced by the solicitor general. This article for the Cato Supreme Court Review—my fourth—considers the legal arguments that California v. Texas declined to reach.
In the end, the ACA survived once again. Justice Alito wrote that "in all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue." He lamented, "once again the Court has found a way to protect the ACA." Justice Alito predicted, "[o]ur Affordable Care Act epic may go on." Soon enough, the trilogy will become a quadrilogy. You can check out of the Hotel California v. Texas any time you like. But I can never leave.
If you read the first page, you'll see a preview of the title of my next book.