Standing Strikes Again! The Supreme Court Dodges Obamacare by Saying it is Unenforceable.

Today, in a surprising 7-2 decision, the Supreme Court, once again, dodged the question of whether Obamacare is unconstitutional. In an opinion written by Justice Breyer, the Court said the plaintiffs didn’t have standing to even challenge the Affordable Care Act (ACA) and so the case was dismissed.

Overview of Obamacare

Just like Nightmare on Elm Street parts 1 through 65, there have been several renditions of the ACA lawsuits at the Supreme Court. And depending on your political persuasion, just as scary. California v. Texas is just the latest in a long line of Obamacare cases before the Supreme Court.

First, there was Obamacare 1: The Case of the Phantom Tax. Chief Justice John Roberts played the protagonist and saved Obamacare from its early demise by declaring that the mandate to buy insurance really wasn’t a mandate per se. Rather, it was just a tax if you didn’t buy the insurance. While this reasoning resulted in the law being constitutional under the Tax and Spend Clause, it did forever change the nature of taxation. So, do we pay taxes on the items in our shopping cart, or the things we left on the shelf and didn’t buy?

Next up, Obamacare 2: Finding your Corporate Religion. In this sequel, Hobby Lobby found religion, meaning it didn’t have to comply with the parts of Obamacare to which God disapproved. No word yet on how a corporation takes communion or gets baptized. But at least under the First Amendment, corporate religion is alive and well.

Then there was Obamacare 3: Late Night at the High Court where Justice Scalia exercised his comedic chops. The case dealt with whether federal tax subsidies would be available in health care exchanges where the federal government had to set up the exchange after the state refused. The Court, after ignoring the words actually used in the Act, found that there was no way Congress would have wanted the tax subsidies not to be available, and so the ACA stayed the law of the land.

In his roast-like dissent, Scalia said that since the Court went to such great lengths to save Obamacare, maybe they should call it “SCOTUScare.” Boom. Mic drop. Exit stage left. He then said the majority’s reasoning was pure “applesauce.” Comparing someone’s legal acumen to a fruit by-product is Supreme Court trash talking at its finest. Finally, he said the majority’s reasoning was pure “jiggery-pokery.” I knew the justices could make up the law, but make up words as well? That’s real power.

California v. Texas

This all brings us to California v. Texas or Standing Strikes Again! California v. Texas involves significant constitutional issues. In Obamacare 1: The Case of the Phantom Tax, the Court upheld the Act under the Tax and Spend Clause. But in 2017, Congress removed the tax. So, in California v. Texas, if there is no tax, is the law constitutional?

A critical issue for the Court was whether the mandate, if found to be unconstitutional, could be severed from the rest of the ACA such that the ACA could remain the law of the land. The reason this argument is so difficult is back during Obamacare 1, the government argued strenuously that the mandate, err, tax, was needed to force people to buy the insurance. If there was no penalty, err, tax, then people would just decide not to purchase the insurance until they actually needed it. So according to the government, the tax was indispensable to the operation of the ACA.

The Court, once again, decided to dodge the issue. Instead of deciding the constitutional issues, the Court held that the plaintiffs did not have standing to challenge the ACA. In order to bring a federal lawsuit, a plaintiff has to allege an injury that is fairly traceable to the defendant’s wrongful actions. And most importantly, there has to be a credible threat of enforcement of the law against the plaintiff.

Here, the Court held that there was no credible threat of enforcement. In fact, there almost couldn’t be a threat of enforcement as the penalty for violating the act is… nothing.

This standing decision was fairly predictable based on what was said during oral argument. The last counsel to argue, General Wall for Texas, seemed to suggest an interpretation of standing that, Justice Roberts said, “expands standing dramatically.” Kagan agreed, stating, “The United States is usually pretty stingy about standing law, so it did surprise me, in much the way that it surprised the Chief Justice, that you’re coming in here with a theory which, to my mind, threatens to kind of explode standing doctrine.”

Bottom line – the Court was simply not open to radically changing its standing rules. If the Court were to allow anyone to challenge a law without showing any credible threat of enforcement of the law, this would open up Pandora’s Box and broadly open up the doors of the federal judiciary to all kinds of cases. While George Lucas probably won’t be to excited, this case is clearly an example of Standing Strikes Again.

For a more comprehensive overview of the oral argument, see our blog post here.

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