Ending the Campaign to Undo the ACA in the Courts

That’s the subhead of a new piece from me (gated, unfortunately) at the New England Journal of Medicine about the Supreme Court’s decision in California v. Texas. For a taste:

In an angry dissent, Justice Samuel Alito, joined by Justice Neil Gorsuch, accused the majority of making an “improbable rescue” of a defective law. In Alito’s view, the states had standing to sue not because they were harmed by the mandate directly, but because they were harmed by other parts of the ACA that are inextricably linked to the mandate. What’s more, Alito would have held not only that the mandate was unconstitutional, but also that the entire law was invalid. It is remarkable that two justices endorsed an outcome that would have plunged the U.S. health care system into chaos.

Because the Court decided the case on procedural grounds, not on its merits, Republicans might try to revive the case. In particular, the majority declined to address Alito’s argument supporting standing because it was “not directly argued by the plaintiffs in the courts below.” A new set of plaintiffs in a new lawsuit could conceivably make this argument. But Alito’s theory runs counter to the general thrust of standing law. Even if it were accepted, the majority’s decision rests on the premise that an unenforceable mandate has no real-world effects. It is hard to see how a mandate that does nothing is an essential part of the ACA, which strongly suggests that most of the justices believe the “shall” language could be severed from the law, while leaving the rest of it intact. Perhaps most important, the curt decision seems to signal that the Court wants nothing more to do with cases challenging the fundamental constitutionality of health care reform. …

But the broadside challenges to the law appear, finally, to have run their course. Would-be reformers — both conservatives who hope to dismantle the ACA and liberals who want to move beyond it — will have to look to Congress, not the judiciary, to achieve their goals. In a democracy, that is exactly as it should be.

If you’re keeping score at home, I initially discussed (and rejected) the standing-through-inseverability theory that forms the basis for Justice Alito’s dissent back in June 2018 at TIE. Later the same year in the Atlantic, I endorsed the standing theory that formed the basis for Justice Breyer’s majority opinion.

I’ll have more to say about the case in the coming weeks, but it’s a good outcome and I hope I’m right in my prediction that it marks the end of root-and-branch challenges to the ACA.



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