How should California v. Texas be decided?

Great Debates
1

The case is docketed as No. 19-840. From the petition for a writ of certiorati:

QUESTIONS PRESENTED

As part of the Patient Protection and Affordable Care Act (ACA), Congress adopted 26 U.S.C. § 5000A. Section 5000A provided that "applicable individual[s] shall" ensure that they are "covered under minimum essential coverage," 26 U.S.C. § 5000A(a); required any "taxpayer" who did not obtain such coverage to make a "[s]hared responsibility payment," id. § 5000A(b); and set the amount of that payment, id. § 5000A(c). In National Federation of Independent Business v. Sebelius, 567 U.S. 519, 574 (2012), this Court held that Congress lacked the power to impose a standalone command to purchase health insurance but upheld Section 5000A as a whole as an exercise of Congress’s taxing power, concluding that it affords individuals a "lawful choice" between buying health insurance or paying a tax in the amount specified in Section 5000A(c). In 2017, Congress set that amount at zero but retained the remaining provisions of the ACA. The questions presented are:

  1. Whether the individual and state plaintiffs in this case have established Article III standing to challenge the minimum coverage provision in Section 5000A(a).
  2. Whether reducing the amount specified in Section 5000A(c) to zero rendered the minimum coverage provision unconstitutional.
  3. If so, whether the minimum coverage provision is severable from the rest of the ACA.

PARTIES TO THE PROCEEDING

Petitioners the States of California, Connecticut, Delaware, Hawaii, Illinois, Massachusetts, Minnesota (by and through its Department of Commerce), New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and Washington, Andy Beshear, the Governor of Kentucky, and the District of Columbia are intervenor-defendants in the district court and appellants in the court of appeals. Petition-ers the States of Colorado, Iowa, Michigan, and Ne-vada intervened as defendants in the court of appeals.

The United States House of Representatives intervened as a defendant in the court of appeals and will be concurrently filing its own petition for a writ of cer-tiorari.

Respondents the United States of America, the United States Department of Health and Human Services, Alex Azar II, Secretary of the U.S. Depart-ment of Health and Human Services, the United States Internal Revenue Service, and Charles P. Retting, the Commissioner of the Internal RevenueService, are defendants in the district court and filed a notice of appeal. They remained appellants in the court of appeals, but ultimately filed their appellate brief on the appellees’ schedule and defended the district court’s judgment.

Respondents the States of Texas, Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi by and through Governor Phil Bryant, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, and West Virginia, and individuals Neill Hurley and John Nantz, are plaintiffs in the district court and appellees in the court of appeals.

RELATED PROCEEDINGS

U.S. Court of Appeals for the Fifth Circuit:

Texas, et al. v. United States, et al., No. 19-10011 (Dec. 18, 2019) (affirming in part and vacating in part the district court’s grant of partial final judgment)

U.S. District Court for the Northern District of Texas:

Texas, et al. v. United States, et al., No. 4:18-cv-167-O (Dec. 30, 2018) (granting partial final judgment on Count I of plaintiffs’ amended complaint)

Arguments are set for next Tuesday, November 10. The question for this topic, however, is "how should this case be decided?"

If the wall of text did not give it away, I hope to start a more legal-minded debate.

~Max

2

I am not a lawyer, but from what I have heard, the answer to 3. should be a clear yes. The usual test for whether a clause is severable is whether Congress would have passed the law without that clause, had they known that the clause would be ruled unconstitutional. However, this is not a case where a clause was ruled unconstitutional, Congress removed that clause. The answer to whether Congress would pass the law if they knew that clause would be taken out is an unambiguous yes, since they literally already did that.

3

The dissent on page 63 here lays a similar argument from an actual judge, and presumably the majority’s arguments are also presented http://www.ca5.uscourts.gov/opinions/pub/19/19-10011-CV0.pdf?fbclid=IwAR1PT4dVd9imsDFkYQxQj5g7Kdt29O0SMuolSbwEOo4vGJqWekj209xEwdk

Edit: it appears that the majority did not want to answer the severability question.

4

I don’t know what the legal opinion will be but I am certain it will be struck down. Not because of any legal verbiage but because RBG has been replaced by ACB. Who I think is on record as having said the original decision was wrong. They will give some legal sounding opinion, but basically at least 5 justices don’t believe that the government has any business insuring the general welfare. I think it notable that they waited till after the election to hear the case. I conjecture that that is because they were afraid that their negative view of the matter might hurt the Rs.

Watch for Medicare next. Then social security.

5

Whoa. Justice Thomas asked a question.

~Max

6

" I think it notable that they waited till after the election to hear the case." It’s not notable, it’s part of their normal scheduling process. They agreed to hear the case, i.e., granted cert, back in March, and the hearing was scheduled for today.

Likewise in yesterday’s case in Brownback v. King, cert was granted in March, and the hearing was in November.

7
Justice Thomas's Question to Attorney General Mongan of California

THOMAS: Uh, thank you Mr. Chief Justice. Uh, General Mongan, if- uh, if, putting it, uh, the Chief Justice's question in today's terms, um, I assume that in most places there is no penalty for wearing a uh face mask - or a mask - during COVID. But there is some degree of opprobrium if someone does not wear it in certain settings. Um, what if someone violates that command? Let's say in similar terms to uh the uh mandate here, but no penalty. Would they have standing to uh challenge the uh mandate to wear a mask?

MONGAN: Well your honor, I- I- I think u- under this court's cases, the question comes down to whether there is a real threat of enforcement. If it's just a bare command, I don't think that would be consistent with cases like Poe and Holder that have looked not just to the question of whether it's a command but to whether there is a threat or possibility of enforcement. Now perhaps-

THOMAS: Is that - Is that consistent with some of our, for example, our first amendment jurisprudence where, uh, without - even without a penalty you could have a chilling effect?

MONGAN: Your honor I think that there may be other legally cognizable theories of injury beyond the type articulated by the plaintiff here, which is strictly focused on 'I'm complying with this command in a way that harms me". And in this case, you know we're not in the first amendment realm, but the states have suggested that there might be some theory of harm from the effects of third-party conduct. That might have been a viable theory but their problem is that they have not established with evidence that's required on summary judgement that the amended 5000A, which is entirely toothless, actually does inflict such a harm on them.

THOMAS: Uh the, the parties here, the respondents here, really they're arguing that uh, as we had in the first ACA case, they're arguing that, uh this uh, the mandate in combination with the other provisions, really caused their injuries. Uh, the, what is curious here is, we have become accustomed to deciding this at the standing stage, uh and this looks somewhat like uh a- a- statutory, the severability issue looks like a statutory construction uh matter. So, could you explain to me why we would determine severability at the standing stage?

MONGAN: Well your honor, I- I don't know that the court normally does determine severability at the standing stage. I suppose it could do that, um, in the process of evaluating the federal government's theory of standing by severability. We don't think that that's a theory that's ever been endorsed by this court and it seems like it would create some serious tension with this court's article III precedent. Um, but typically severability would be analyzed after ruling on the legality of the provision.

THOMAS: So, t-the, how would you say y-you would ar- I see my time's up, uh, thank you.

I don't think it makes sense to recognize standing of any individual citizen to challenge a toothless law on the basis of direct constitutional harm. If the law is toothless there isn't direct harm by definition. Certainly I agree with California, if a theory of indirect harm such as a chilling effect were presented, I think that would be different.

In this case the individual plaintiffs basically complain that the law commanded them to purchase individual coverage and that they are out so many dollars because of that command. California is saying the law isn't a command because the penalty for violating it is zero, therefore the individuals should not have standing.

Maybe there's something someone here can clear up for me. I thought the Supreme Court interpreted § 5000A as a tax in NFIB. Yet AG Mongan seemed to concede that a person who does not buy individual coverage should answer yes to the question, "have you broken the law". Wouldn't it make more sense to argue that the 5000A(c) "tax" is the rule, and that buying individual coverage is the exemption?

Imagine there's a head tax of $5 per year, but if you buy a certain widget you are exempt. Then Congress passes a new law that sets the head tax to $0, but leaves the rest. So now the law reads, there's a head tax of $0 but if you buy a certain widget you are exempt. Can someone who bought the widget go to court and claim that the law directly and unconstitutionally commanded them to buy the widget? I don't think so.

~Max

8

I doubt medicare and social security will be struck down. People pay a specific tax for those programs. Which is why they shouldn’t be means tested or reduced for any reasons. It’s like paying for a 401k and then having the government seize it.

9

This is not true, of course. They are insurance programs, not savings programs. Social Security started paying benefits as soon as it was created, for example, so none of the initial recipients had put anything into it.