How Will the SCOTUS Reject the Challenge to Obamacare?
by Michael C. Dorf
With the caveat that one can never say with 100% confidence how Justices will rule on a case based on their questions and comments at oral argument, I count at least five votes to reject the argument by Texas and the Trump administration for invalidating the entire Affordable Care Act. Chief Justice Roberts and Justice Kavanaugh very clearly signaled that they disagree with the claim that the individual mandate cannot be severed from the balance of the Act, while Justices Breyer, Sotomayor, and Kagan seemed inclined to rule against the challengers on multiple grounds. In addition, Justices Thomas and Barrett were skeptical of some of the arguments for standing. Accordingly, I'm going to assume for purposes of this essay that the challenge will be rejected and game out how the opinion(s) might be written.
Spoiler Alert: I predict the case will be decided on standing grounds and that the Chief will write the opinion.
As most readers are likely aware, the law's challengers need to prevail on all of three issues to win what they're seeking: invalidation of the entire Affordable Care Act (ACA). The issues are: (1) standing; (2) the merits; and (3) severability. My Verdict column published this morning explains why I think the plaintiffs should lose on all three before discussing the potential impact of the case on the Georgia Senate runoff elections. In addition, Marty Lederman and I filed a brief on point (2)--arguing that the whole premise of the challengers' argument is wrong. The 2012 decision in NFIB v. Sebelius did not rest on the taxing power as such; it rested on the notion that Congress gave individuals a choice to buy health insurance or do something else Congress could tell them to do, pay a tax; that's still true, because Congress doesn't need any affirmative power to ask people to do nothing.
Nonetheless, the Court's conservative Justices seemed somewhat sympathetic to the plaintiffs/respondents (i.e., Texas and the SG) on the substantive point. CJ Roberts suggested that a "mow your lawn" mandate without a penalty would be a mandate. Justice Thomas said the same about a mask mandate without a penalty. Another Justice imagined a law requiring flag displays without penalty. But it was not entirely clear to me from the oral argument whether these examples were meant to show that the mandate without a penalty causes injury--and thus gives rise to standing--or whether they were to show that the mandate is still a mandate and wasn't de facto repealed. In any event, my best reading of the argument is that Texas will most likely lose either on standing or severability grounds.
It is relatively easy to imagine five Justices (the Chief plus Breyer, Sotomayor, Kagan, and Kavanaugh) writing or joining an opinion that assumes arguendo that the plaintiffs have standing, that the mandate exists, and that it's unconstitutional, but that it is nonetheless severable. I could even imagine such an opinion being unanimous (although if I had to bet I'd say that at least Justice Alito votes for the challengers one way or another).
But I think it's likely that an opinion decided on standing grounds would garner more votes, because, as even Justice Kagan pointed out, the plaintiffs' theory of standing is very broad--and in general liberals like while conservatives dislike broad standing. The Texas theory relies on what various justices termed standing-by-nonseverability. The core idea is that if Plaintiff alleges that a law contains any invalid part that might be non-severable from the part of the law that applies validly to the Plaintiff, the Plaintiff has standing because invalidation of the inapplicable part carries the consequence of invalidating the part applicable to the Plaintiff. As various Justices pointed out, with omnibus legislation of the sort Congress typically passes these days, that could give virtually anyone affected by any part of a law standing to challenge the part that affects them.
Such standing-by-nonseverability is thus probably better understood as third-party standing, and the Court's cases typically disallow third-party claims. Acting SG Jeffrey Wall tried to head off this worry by arguing that in the vast majority of cases there will not be a plausible claim of non-severability. The problem with that argument, however, is that in this very case it appears that a majority of the Justices seem to think that the law is severable. And as Justice Thomas points out, severability analysis typically comes after a determination of constitutionality, not at the standing threshold.
Moreover, standing is technically a jurisdictional question, which should be decided before the merits or the remedy. I think the Court ought to be able to say that even assuming standing and unconstitutionality, plaintiffs lose on severability. However, the Court's cases appear to reject "hypothetical jurisdiction," so that path might not be available.
Accordingly, if I had to bet I'd say that an opinion rejecting standing would have the best chance of garnering a broad majority. There's even an outside chance of unanimity.