The Supreme Court’s decision on Thursday to throw out the latest challenge to the Affordable Care Act is like a Magic Eye. Upon first glance, it’s barely anything: The 7–2 majority tossed the case on standing, holding that none of the plaintiffs are actually harmed by the ACA’s now zeroed out individual mandate. Sometimes, when the court finds no standing, the plaintiffs can retreat, develop a new theory of harm, and return with a beefed up lawsuit. But look closer at the decision in California v. Texas and you will see a wholesale rejection of the plaintiffs’ entire theory of the case. Other attacks on Obamacare will continue, but this uniquely daffy assault on the law is dead.
California v. Texas arose after Congress passed the Tax Cuts and Jobs Act of 2017. Just months earlier, Republicans had narrowly failed to repeal the whole ACA. So, in their tax cut bill, they settled on the next best thing: zeroing out the penalty for people who don’t purchase health insurance. Because Congress passed the law through reconciliation, it could not actually eliminate the ACA’s individual mandate itself, which remains on the books. But lawmakers rendered it unenforceable by establishing a zero dollar penalty for anyone who violates it.
Texas Attorney General Ken Paxton, along with 17 other states and two hand-picked individual plaintiffs, then filed a lawsuit seeking to topple the entire ACA. The plaintiffs pointed out that, when the Supreme Court upheld the law in 2012, it found that the individual mandate could be justified as a tax. But now, the plaintiffs argued, the mandate collects zero dollars, so it is no longer a tax, just a command. And in 2012, the court held that a command to purchase health insurance (rather than a tax on uninsured people) would exceed Congress’ constitutional authority. So, under this theory, the mandate must be stricken—and the rest of the law must fall with it, because the mandate should be deemed “inseverable” from the entire ACA.
There are many logical flaws in this theory. For instance, if the mandate is just an unenforceable command that anyone can ignore with impunity, how can it be unconstitutional? Can Congress exceed its powers when it’s not actually exercising any powers? And even if the mandate is unconstitutional, why must the rest of the law fall? By zeroing out the penalty in 2017, didn’t Congress decide the law could function without the mandate? Shouldn’t the courts defer to that judgment?
In the end, however, the Supreme Court seized upon the most glaring problem of all: The plaintiffs—both states and individuals—simply have no standing to challenge Obamacare because they are not injured by it. As Justice Stephen Breyer wrote for the majority, the mandate “has no means of enforcement,” because “the IRS can no longer seek a penalty from those who fail to comply.” Moreover, “there is no one, and nothing, to enjoin”: a decision on the merits would amount to “an advisory opinion” that “would threaten to grant unelected judges a general authority to conduct oversight of decisions of the elected branches of Government.”
Similarly, the states argued that the mandate’s continued existence will lead residents to enroll in health programs that use public funds. But, as Breyer noted, the states could not show that the mandate, “without any prospect of penalty, will harm them by leading more individuals to enroll in these programs.” Sure, state officials might speculate a penalty-free mandate will boost enrollment. But in this litigation, they failed to offer any persuasive evidence to bolster conjecture. And since the states lack standing to contest the mandate, they also lack standing to challenge other, obviously constitutional provisions of the ACA with which they must still comply.
On the surface, it might seem as if Breyer left room for the states to develop a more robust theory of harm to establish standing in the future. And given that this lawsuit was brought by insurrectionist attorneys general, perhaps they might try.
But look closely and you’ll see that Breyer boxed in the plaintiffs at every turn. In denying them standing, he dismissed their entire theory of the case: the notion that a zeroed-out mandate is actually worse, for constitutional purposes, than a functioning mandate. The plaintiffs claimed that the mandate, as it stands today, is a command that forces everybody to buy health insurance—a legal instruction that law-abiding citizens will feel obligated to follow. Breyer rejected this theory outright. Instead, he acknowledged that the zeroed-out mandate is just a suggestion, an unenforceable relic. In light of that conclusion, it is difficult, if not impossible, to see how Breyer—or the six justices who joined him—could deem the mandate unconstitutional if they somehow reached the merits in the future. How could a law that does not force anybody to do anything violate the Constitution? How could Congress exceed its powers when it isn’t even exercising them?
It is certainly alarming that Justices Samuel Alito and Neil Gorsuch, in dissent, bought the plaintiffs’ theory and supported junking large portions of the ACA. But it’s encouraging that even Justice Clarence Thomas had to admit that no one suffers any injury under the current law. California v. Texas invited the federal judiciary to do what congressional Republicans could not: destroy the ACA once and for all. The plaintiffs asked the justices of the Supreme Court to act as partisan politicians rather than judges. It is a relief—for the country, for the courts, for the more than 20 million people who have health insurance because of the ACA—that the justices declined this sordid invitation.
