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Obamacare Survives Fourth SCOTUS Encounter

Professor Glenn Smith

The Affordable Care Act (popularly known as Obamacare) may be the Supreme Court equivalent of the cat with nine lives. Or at least four, writes California Western Professor and Supreme Court expert Glenn Smith in an academic commentary recently published in JURIST, a national online law-news resource.

In Obamacare’s Still Standing – Thanks to Standing, Professor Smith discusses the Court’s latest Obamacare reprieve on June 17, 2021.

The Supreme Court has now turned aside three distinct lines of attack on the Act’s controversial individual mandate (IM), which imposed a “tax penalty” on most taxpaying Americans who failed to buy federally defined minimally adequate health insurance.

The latest, in California v. Texas, a 7-2 majority upheld the individual mandate’s constitutionality against attack by two insurance purchasers and 18 states. This most recent save writes Professor Smith is especially interesting for three reasons.

First, California v. Texas illustrates the legal and practical importance of the complex doctrines surrounding standing to sue. Second, California v. Texas is a high-profile case study in how the discretionary standing doctrines allow the justices to avoid the merits of complicated issues. Third, the decision showcases two dynamics of the current Court’s decision-making.

This case, comments Professor Smith, shines a light on the complicated rules governing standing and how they can make the legally practical difference in high-stakes public litigation. For example, one essential requirement for bringing claims within the Article III jurisdiction of federal courts is for challengers to show “a past or future injury fairly traceable” to governmental enforcement of an unconstitutional statutory provision.

The Breyer-led majority systematically examined the injuries claimed by the private plaintiffs and the states. The majority found that these alleged injuries failed to trace back to the IM.

Looking from the standpoint of another standing requirement—that injury be meaningfully “redressable”—the majority found that, without a compelling need to intervene on behalf of specifically injured parties, “unelected judges [should not] conduct oversight of decisions of the elected branches of Government.”

The bottom line, says Professor Smith, is that without standing to sue, the challengers could not get a Court majority to decide the merits of their claims that the IM was unconstitutional and that the rest of the ACA should fall along with it.

Professor Smith comments that had the Court not resolved the Obamacare challenge based on standing, the justices would have had to sort through two very different views about whether a zeroed-out tax still deserved that label. Even more challenging would have been sorting through which of the ACA’s numerous and varied threads were integrally tied to the IM.

Ultimately, concludes Professor Smith, California v. Texas parts the curtain on two dynamics often attending public litigation at the Supreme Court.

One is how the popular account of justice polarization, in which the Court splits 5-4 along ideological lines, can lack nuance—even in high-profile cases. This non-polarized trend not only tracks many past standing decisions but—refreshingly—also characterizes several other prominent cases the Court decided in its recently ended Term.

A second reality is about how oral argument contributes to the evolution of the justices’ thinking. The November 2020 oral argument in California v. Texas began with a significant focus on standing issues. But then the justices pivoted to detailed exploration of the constitutionality of the IM and the myriad severability questions.

That the majority did not reach these issues may implicitly underscore the value of oral argument in bringing home that key issues are more complicated than originally anticipated and that avoiding sticky wickets in the name of judicial restraint has greater appeal.

Read Professor Glenn Smith’s complete JURIST commentary here.