Supreme Court rejects GOP challenge to Affordable Care Act
The issue of severability didn't even come up, as the justices found the Republican-led states questioning the law do not have the right to challenge it.
The U.S. Supreme Court on Thursday rejected a Republican-led attempt to dismantle the entire Affordable Care Act, which provides health insurance coverage for more than 30 million Americans.
The court, voting 7-2, ruled that the challengers to the health insurance law do not have “standing”—the right to sue—because they failed to show the required past or future injury from enforcement of the act’s so-called individual mandate to purchase insurance. That penalty for lacking insurance was eliminated by Congress in 2017.
Related: ACA’s Supreme Court hearing: Were states actually harmed?
“The Constitution gives federal courts the power to adjudicate only genuine ‘Cases’ and ‘Controversies,’” Justice Stephen Breyer wrote for the majority. “That power includes the requirement that litigants have standing. Neither the individual nor the state plaintiffs have shown that the injury they will suffer or have suffered is ‘fairly traceable’ to the ‘allegedly unlawful conduct’ of which they complain.”
By ruling that the challengers lacked the proper standing, the majority said it was not necessary to decide whether the individual mandate, and thus the entire law, was constitutional.
Justice Samuel Alito Jr., joined by Justice Neil Gorsuch, dissented, writing: “Today’s decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two. In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.”
Instead of defending the constitutionality of the mandate, Alito added, “the Court simply ducks the issue and holds that none of the Act’s challengers, including the 18 States that think the Act saddles them with huge financial costs, is entitled to sue.”
Justice Clarence Thomas, in a concurring opinion, said there was “much to commend” in Alito’s dissent, but “there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the Act—they have not identified any unlawful action that has injured them. Today’s result is thus not the consequence of the Court once again rescuing the Act, but rather of us adjudicating the particular claims the plaintiffs chose to bring.”
In February, the Biden administration informed the court that it did not support the former Trump administration’s position that the act should be struck down.
The justices first upheld the insurance mandate in 2012 in a 5-4 ruling in which Chief Justice John Roberts Jr. joined with the court’s four liberal members. They ruled that the mandate was constitutional under Congress’s taxing power.
The question before the justices this time was whether the now-unenforceable mandate was an unconstitutional command to insure, as the Republican states argued, or a constitutional choice—buy insurance or don’t—as California and its Democratic-led coalition of states and the U.S. House of Representatives argued.
Following Congress’s action in 2017, a coalition of Republican state attorneys general, led by Texas, and two individuals brought a legal challenge claiming that eliminating the tax penalty undermined the Supreme Court’s 2012 decision upholding the mandate’s constitutionality under Congress’s taxing power. The Trump administration joined in the attack on the act. California and a coalition of Democratic-led states and the U.S. House of Representatives defended the law.
A federal district court and the U.S. Court of Appeals for the Fifth Circuit agreed with the GOP states.
During arguments in November in the cases California v. Texas and Texas v. California, the justices appeared closely divided on whether the challengers had offered sufficient evidence that, for standing purposes, they had suffered a concrete injury from Congress’s 2017 action.
Roberts and Justice Elena Kagan strongly challenged the standing theory offered by then-acting U.S. Solicitor General Jeffrey Wall on behalf of the Trump Administration, which had declined to defend the law. Wall and the Republican states argued they had standing based on provisions surrounding the mandate but not directly tied to it.
Kagan said the government’s theory threatened to “explode standing doctrine” and allow individuals to hunt through legislation which often is more than a thousand pages for one provision to claim injury. “This theory is new to me and I think would be new to many people,” she said.
Justice Amy Coney Barrett also focused on standing, which, if a majority had found did not exist for the challengers, would have ended the case at the outset. Her vote was thought to be determinative on the issue, given comments by other conservative justices. Senate Democratic members of the Judiciary Committee had made the legal threat to the ACA a central focus of their opposition to Barrett’s nomination.
Roberts and Justice Brett Kavanaugh, along with their three liberal colleagues, also signaled that if the individual mandate were no longer constitutional, a doctrine known as severability would allow the court to eliminate the mandate but keep the rest of the law in place.
“It’s hard for you to argue that Congress intended the entire act to fall when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told then-Texas Solicitor General Kyle Hawkins during arguments. “I think they wanted the court to do that but it’s not our job.”
On the severability question, Roberts added, “We ask whether Congress would want the rest of the law to survive. Here Congress left the rest of the law intact. That seems to be compelling evidence.”
Kavanaugh said that if the individual mandate can’t be justified, “It does seem fairly clear the proper remedy would be to sever it. Inseverability clauses usually are very clear. Congress knows how to write them and that is not the language they chose here [in the act].”
A second issue also consumed the more than two hours of arguments: whether the Republican states and individuals had standing to challenge the health insurance act.
The justices also examined whether the mandate was constitutional without the penalty and, in some ways, the arguments sounded much like they did when the court first faced the mandate in 2012. This time, however, hypotheticals included one about a mandate to wear masks, a reference to the ongoing pandemic, and even a reference to a mandate to eat broccoli, which had first surfaced during earlier arguments over the health law at the high court.
“Eight years ago, in defending the mandate, you emphasized it was key to the whole act,” Roberts told Munger, Tolles & Olson partner Donald Verrilli Jr., representing the U.S. House. “Now your representation is that everything is fine without it. Why the bait and switch? We spent all that time talking about broccoli for nothing.”
Verrilli, who successfully defended the act in 2012 as solicitor general in the Obama administration, answered, “In 2010, Congress adopted a carrot and stick approach—and lots of carrots but also a stick. The 2010 Congress thought that stick was important. But it turned out the carrots worked without a stick. Congress is allowed to learn from experiences in the world and that’s what happened here.”
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