SCOTUS has performed mouth-to-mouth resuscitation and chest compressions on Obamacare for almost a decade, including recently in California v. Texas. Alito Dissent: “No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats.”
Obamacare is alive. It should have died in 2012, but John Roberts saved it, by joining the liberal Justices in finding the mandate penalty to be an exercise of taxing power, even if it was beyond the federal government’s ability to regulate interstate commerce. And even if the politicians assured the nation in barely passing the legislation that it was not a tax.
It should have died again in 2015, when six Justices, including Roberts and Kennedy, held the federal exchanges needed to generate crucial tax credits to keep the Obamacare system alive were “established by the State” (even though they were federal exchanges).
And just last week, seven Justices, including Roberts, Thomas, Kavanaugh, and Barrett, held that neither states nor the individual plaintiffs had “standing” to challenge the law, even though the mandate penalty was eliminated, thus removing the sole basis upon which Obamacare was upheld in 2012.
You can read the majority opinion, but should also Thomas’ lament in his concurring opinion (starting at page 20 of the pdf.) that the ridiculous history of the case in SCOTUS nonetheless led him to agree with the majority on present standing.
There is much to commend JUSTICE ALITO’s account of “our epic Affordable Care Act trilogy.” Post, at 1 (dissenting opinion). This Court has gone to great lengths to rescue the Act from its own text. Post, at 1–2. So have the Act’s defenders, who argued in first instance that the individual coverage mandate is the Act’s linchpin, yet now, in an about-face, contend that it is just a throwaway sentence.
But, whatever the Act’s dubious history in this Court, we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the Act—they have not identified any unlawful action that has injured them. Ante, at 5, 11, 14–16. Today’s result is thus not the consequence of the Court once again rescuing the Act, but rather of us adjudicating the particular claims the plaintiffs chose to bring….
The plaintiffs failed to demonstrate that the harm they suffered is traceable to unlawful conduct. Although this Court has erred twice before in cases involving the Affordable Care Act, it does not err today.
But most of all, read Alito’s dissent, in which Gorsuch joined (which starts at page 26 of the pdf.).
Today’s decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two. In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.
In the opening installment, National Federation of Independent Business v. Sebelius, 567 U. S. 519 (2012) (NFIB), the Court saved the so-called “individual mandate,” the same critical provision at issue in today’s suit….
… in a stunning turn of events, the threat to the ACA was defused when the “penalty” for failing to comply with the mandate was found to be a “tax” and thus to be justified as an exercise of Congress’s taxing power. Id., at 575 (opinion of ROBERTS, C. J.); see also id., at 574 (opinion of the Court); see U. S. Const., Art. I, §8, cl. 1. By a vote of 5 to 4, the individual mandate—and with it the rest of the ACA—lived on.
In the next installment, King v. Burwell, 576 U. S. 473 (2015), the Court carried out an equally impressive rescue. One of the Act’s key provisions provided subsidies to persons purchasing insurance through exchanges established by a “State.” 26 U. S. C. §§36B(b)–(c) (2012 ed.). When many States refused to establish such exchanges, the Federal Government did so instead. But the critical subsidies were seemingly unavailable on those exchanges, which had not been established by a “State” in any conventional sense of the term. Once again, some feared that the Act was in mortal danger, but the Court came to the rescue by finding that the Federal Government is a “State.” 576 U. S., at 484–498.
Now, in the trilogy’s third episode, the Court is presented with the daunting problem of a “tax” that does not tax. Can the taxing power, which saved the day in the first episode, sustain such a curious creature? In 2017, Congress reduced the “tax” imposed on Americans who failed to abide by the individual mandate to $0. With that move, the slender reed that supported the decision in NFIB was seemingly cut down, but once again the Court has found a way to protect the ACA. Instead of defending the constitutionality of the individual mandate, the Court simply ducks the issue and holds that none of the Act’s challengers, including the 18 States that think the Act saddles them with huge financial costs, is entitled to sue.
Can this be correct? The ACA imposes many burdensome obligations on States in their capacity as employers, and the 18 States in question collectively have more than a million employees.1 Even $1 in harm is enough to support standing. Yet no State has standing? In prior cases, the Court has been selectively generous in allowing States to sue….
In this suit, as I will explain, Texas and the other state plaintiffs have standing, and now that the “tax” imposed by the individual mandate is set at $0, the mandate cannot be sustained under the taxing power. As a result, it is clearly unconstitutional, and to the extent that the provisions of the ACA that burden the States are inextricably linked to the individual mandate, they too are unenforceable.
The Supreme Court has has performed mouth-to-mouth resuscitation and chest compressions on Obamacare for almost a decade. Is there anything the Court won’t do to keep Obamacare alive?
According to Alito, there is no bottom:
No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats. A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. So a tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation’s history. Fans of judicial inventiveness will applaud once again.
But I must respectfully dissent.
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