June 17, 2021

"Court tosses suit by Republican states challenging Affordable Care Act."

"The justices ruled 7-2 that Texas and 17 other states lacked standing to argue that the individual mandate to purchase health insurance is unconstitutional" — SCOTUSblog reports.  

Here's the opinion.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which GORSUCH, J., joined.

Looking at that, I'm most interested in why Justice Thomas concurred: 

JUSTICE ALITO [dissenting] does not contest [the majority's] analysis. Rather, he argues that the state plaintiffs can establish standing another way: through “inseverability.” (“First, [the States] contend that the individual mandate is unconstitutional . . . . Second, they argue that costly obligations imposed on them by other provisions of the ACA cannot be severed from the mandate. If both steps of the States’ argument that the challenged enforcement actions are unlawful are correct, it follows that the Government cannot lawfully enforce those obligations against the States”). This theory offers a connection between harm and unlawful conduct. And, it might well support standing in some circumstances, as it has some support in history and our case law.

But, I do not think we should address this standing- through-inseverability argument for several reasons. First, the plaintiffs did not raise it below, and the lower courts did not address it in any detail.... Second, the state plaintiffs did not raise this theory in their opening brief before this Court... and they did not even clearly raise it in reply. Third, this Court has not addressed standing-through-inseverability in any detail, largely relying on it through implication.... And fourth, this Court has been inconsistent in describing whether inseverability is a remedy or merits question.... Thus, standing-through-inseverability could only be a valid theory of standing to the extent it treats inseverability as a merits exercise of statutory interpretation. But petitioners have proposed no such theory.

1 comment:

Ann Althouse said...

Tom T. writes: "Alito's dissent contends that the Court is not consistent in how it applies standing doctrine. If the Court wants to reach the merits, some form of standing will be found to exist, and if it wants to avoid the merits, standing will be an obstacle."