On the Eve of Argument in California v. Texas

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Tuesday morning the Supreme Court will hear oral argument in California v. Texas, the seventh* Affordable Care Act case to reach the Supreme Court. This case, like the first one (NFIB v. Sebelius) focuses on the individual mandate, but also seeks to invalidate as much of the law as possible. Specifically, the plaintiffs claim that Congress’ decision to zero out the tax penalty for failing to obtain qualifying health insurance has rendered the individual mandate unconstitutional, and that the entire ACA must be invalidated because the rest of the law is inseverable from the mandate. As regular VC readers know, I think much less of this case than prior challenges to the ACA or its implementation (my prior posts are linked below). In this post, I want to highlight some things to pay attention for in the oral argument.

The California v. Texas argument, like all Supreme Court arguments these days, will be telephonic. The advocates and justices will not be in the courtroom at One First Street. Instead, they will be on the phone. One consequence of this is that the justices will question the advocates seriatim, with each justice having an opportunity to question each attorney. This allows for more thorough questioning, but comes at the expense of the give-and-take that occurs at traditional arguments. It also means that it can be harder to gauge the views of individual justices based upon where they focus their questions.

The order in which the attorneys will argue also means that the most important exchanges may happen at the end of the argument. First up will be the ACA’s defenders, the intervenor states (California, et al.) and the House of Representatives, followed by the Solicitor General and the plaintiffs. This means that we might not know whether the justices are concerned about issues like standing until an hour or more in.

Speaking of standing, whether any of the justices see an Article III standing problem is definitely worth paying attention to. As I noted in this post, it is not clear how anyone has standing to challenge an unenforced and unenforceable statutory provision. Contrary to standard practice, the Department of Justice ignored the standing problems, and the lower courts offered cursory and unconvincing arguments in support of standing.

Concluding that the plaintiffs lack standing would be a relatively easy way for the justices to dispatch of this case. It also might provide the Chief Justice with an opportunity to recalibrate, and narrow, the law of standing, perhaps even curtailing the doctrine of “special solicitude” for state standing claims. On the Seventh Circuit, Justice Barrett showed some interest in standing too, so we may get a glimpse whether she shares her mentor, the late Justice Scalia’s concern about the need to police the bounds of Article III.

Another issue to pay attention to is how the justices characterize the mandate itself. If the Court concludes the plaintiffs have standing, the next question is whether the ACA still imposes any obligation to purchase qualifying health insurance on anyone, now that Congress has zeroed out the penalty for noncompliance. In NFIB v. Sebelius, the Chief Justice infamously concluded that the minimum coverage requirement was written as a mandate but operated as a tax. Now that there is no financial penalty, it no longer operates as a tax. So does this mean its a mandate? Or is it nullity? Or is it a tax for which the required payment is zero? Insofar as the justices ask about the mandate itself, pay attention to how they characterize the relevant ACA provision, and the implications of NFIB for the law today. Along these lines, do not be surprised if some of the justices challenge the intervenor states for (in effect) arguing that a mandate to purchase health insurance is constitutional notwithstanding NFIB — and don’t read too much into any such questioning, as resolution of this question need not have much bearing on the ultimate outcome of the case.

If the Court concludes plaintiffs have standing and the mandate, such as it remains, is unconstitutional, the justices will have to decide whether the rest of the ACA is severable from the mandate. Along with Abbe Gluck, Nicholas Bagley and Ilya Somin, I submitted a “strange bedfellows” amicus brief arguing that the mandate is severable from the rest of the Act under existing standing doctrine and plausible alternatives. We argue that this is the case whether one looks at what Congress would have intended or whether the ACA can operate without a mandate, as well as under a more minimalist or originalist approach to severability.

I would be quite surprised if a majority of the Court thinks the severability question is particularly difficult in this case, but it will be interesting to see whether any of the justices evince any sympathy for the plaintiffs’ severability arguments nonetheless. It will also be interesting to see whether any of the justices signal their dissatisfaction with current severability doctrine. Justices Thomas and Gorsuch have expressed an interest in returning to first principles in this area, so pay attention to whether they express such views at argument. If so, do not be surprised if someone notes that in Marbury v. Madison, the Court held the offending portion of the Judiciary Act was not judicially enforceable, and did not even consider whether any other part of the Act needed to fall.

Another issue to look out for is the question of statutory jurisdiction flagged in this amicus brief by co-blogger Sam Bray, occasional VC guest poster Michael McConnell, and Kevin Walsh. While their argument has not been embraced by any of the parties, It does provide an alternative jurisdictional off-ramp should the justices wish to take it.

The case will formally be submitted at the close of argument. The justices will cast their initial votes, and opinions will be assigned, at Friday’s conference. An opinion can be expected no later than June of 2021, but do not be at all surprised if we see something sooner. It’s quite common for cases argued in November to be released in February or March, particularly if (as I suspect will be the case here) the Court is not closely divided.

I will post during or shortly after the argument’s conclusion. In the meantime, for those interested in my prior commentary on this case, here is a list of my prior VC posts on the case, and a few NYT op-eds with Abbe Gluck.

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* For those keeping track, the prior cases are NFIB v. Sebelius, King v. Burwell, the three contraception mandate cases (Hobby Lobby, Zubik, & Little Sisters) and the risk corridor case (Maine Community Health Options v. United States). Thus, California v. Texas is the seventh ACA case to reach the High Court, and it will not be the last.


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