SCOTUSblog by Josh Blackman and Ilya Shapiro 11/5/2020
Symposium: The individual plaintiffs in California v. Texas suffer a greater Article III injury than did the individual plaintiffs in NFIB v. Sebelius
This article is part of a symposium previewing California v. Texas.Josh Blackman is a professor of law at South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the author of two (and soon three) books on Obamacare’s legal controversies. Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. Together they filed an amicus brief on Cato’s behalf supporting respondents Neill Hurley and John Nantz.
Obamacare is back at the Supreme Court, again. This time, the justices will be called upon to decide the constitutionality of the individual mandate and, if necessary, how much of the rest of the Affordable Care Act has to fall.
But wait, didn’t the world-historical litigation culminating in National Federation of Independent Business v. Sebelius settle those questions in 2012? Remember, Chief Justice John Roberts changed his vote and transmogrified the penalty for not complying with the mandate to purchase health insurance into a tax? Well yes, but since Congress zeroed out that tax-penalty in 2017, we have to replay this script all over again.
In short, the case now oddly known as California v. Texas — isn’t the ACA a federal program? — presents three questions. First, does the ACA’s individual mandate inflict an injury sufficient to give the plaintiffs standing under Article III of the Constitution? Second, can Section 5000A of the ACA still be construed as a constitutional tax after the penalty was reduced to $0? Third, can the individual mandate be severed from the remainder of the ACA?
Our amicus brief on behalf of the Cato Institute ties these three issues together. We contend that the individual plaintiffs have standing and Section 5000A can no longer be saved. And in our view, the remedy is dictated by the standing analysis, which is the focus of this symposium essay. The court need only declare unconstitutional the parts of the ACA that injure those individual plaintiffs. We’ll put our bottom line up front: People who like Obamacare can keep Obamacare. And those who object to being forced to purchase unwanted policies will have other options off the ACA exchanges. This remedy would be consistent with the limits imposed by Article III and would thread the needle through the court’s fragmented severability jurisprudence.
Our analysis begins, as it must, with the text and structure of the ACA. Section 5000A(a) of the law created a “[r]equirement to maintain minimum essential coverage,†which, NFIB explained, has been “commonly referred to as the individual mandate.†And Section 5000A(b) codified the shared responsibility payment, which is also known as the “penalty†for not complying with the individual mandate. Congress structured the individual mandate and the shared responsibility payment as separate provisions; some people were subject to the mandate but were exempt from the penalty.
More:
https://www.scotusblog.com/2020/11/symposium-the-individual-plaintiffs-in-california-v-texas-suffer-a-greater-article-iii-injury-than-did-the-individual-plaintiffs-in-nfib-v-sebelius/#more-297534
