The Fifth Circuit will hear oral argument tomorrow in Texas v. United States, a sweeping challenge to the Affordable Care Act arising out of Congress’s decision, in late 2017, to eliminate the penalty for going without insurance.
The case should never have been taken seriously. The red states that brought the suit don’t have standing to bring it; Congress introduced no constitutional defect into the Act by zeroing out the mandate penalty; and the proper remedy for any constitutional defect is to sever the mandate, not invalidate the whole ACA.
But here we are. For those of you looking to come up to speed, I’ve pulled together my writings on the case since it was first filed. (Jonathan Adler, who’s also written extensively about the case, has pulled together a similar compilation.)
- I offered my initial take on the case when it was filed (Mar. 2018).
- I have a post, titled Texas Fold ‘Em, on the Justice Department’s announcement that it wouldn’t defend the constitutionality of the individual mandate (June 2018).
- In The case that could end the Texas lawsuit, I discussed United States v. Ardoin, a Fifth Circuit case sustaining the constitutionality of a $0 tax (June 2018).
- The severability question is not hard (June 2018).
- In two posts, I raised and resolved a puzzle about whether the plaintiffs have standing to sue (June 2018).
- Abbe Gluck and I wrote an op-ed for the New York Times arguing that the Trump administration’s refusal to defend the ACA was part of a broader violation of his constitutional duties (Aug. 2018).
- I covered Maryland’s effort to get an injunction requiring the Trump administration to continue enforcing the ACA (Sept. 2018).
- In The Atlantic, Sam Bray and I argued that judges shouldn’t have the power to halt laws nationwide, and used the then-pending decision in Texas v. United States as an example of the risks of national injunctions (Oct. 2018).
- After Judge O’Connor released his decision, I penned an op-ed for the Washington Post calling his decision “as difficult to follow as it is to defend” (Dec. 2018).
- The Texans Challenging Obamacare Have No Standing, for The Atlantic (Dec. 2018).
- Also in The Atlantic, Richard Primus and I argued that the House of Representatives should pass a bill that would nip the lawsuit in the bud (Dec. 2018).
- I wrote an op-ed for the New York Times on the Trump administration’s decision to argue that the entire ACA should fall (Mar. 2019).
- Together with Jonathan Adler, Abbe Gluck, and Ilya Somin, I filed an amicus brief with both the district court and the Fifth Circuit on the severability question (June 2018 and Apr. 2019).
- Most recently, I’ve opined on the Justice Department’s position on whether anyone has standing to take an appeal to the Fifth Circuit (July 2019).