Law & the Courts

Supremes Predictably Reject Red States’ Obamacare Challenge

The Supreme Court building in Washington, D.C., June 17, 2021. (Jonathan Ernst/Reuters)
Health-care policy badly needs to be addressed. But it remains a task for Congress.

In what should come as a surprise to exactly no one, the Supreme Court, in a 7–2 ruling, has rejected the challenge to Obamacare (the Affordable Care Act, or “ACA”) mounted by several red states.

In the majority opinion issued this morning, written by Justice Stephen Breyer, the Court held that the two individual plaintiffs and the states did not have standing to claim that the ACA in its entirety became unconstitutional when Congress zeroed out the individual mandate — the mandate having been the basis on which the Court had earlier upheld the statute.

During now-Justice Amy Coney Barrett’s confirmation hearings, Democrats absurdly claimed that then-President Trump was attempting to place Barrett on the Court to assure that the ACA would be invalidated. As I was hardly alone in pointing out at the time (see here), Justice Barrett’s record, in addition to her answers to the Senate Judiciary Committee’s questions, made it a near certainty that she would not vote to toss out the statute. Regardless of what her policy views on the ACA may be, as matters of law, a) the states’ contention that the mandate was not severable from the rest of the ACA, and therefore that the whole voluminous statute had to be invalidated, was untenable, and b) the plaintiffs probably did not even have standing to raise their claims.

In the end, Barrett (along with Chief Justice John Roberts and Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh) predictably joined Justice Breyer’s opinion, in which the majority never even reached the severability issue. As a preliminary matter, the claimants lacked standing.

The Court’s jurisprudence requires a claimant to show an injury that results from a statute’s actual or threatened enforcement. Since the mandate has been zeroed out, there is no chance that the government will enforce it. Specifically with respect to the states, moreover, the Court was unpersuaded by what it saw as speculation that the mandate, without any possibility of enforcement, would cause more people to enroll in Obamacare programs, driving up the states’ costs.

While the states further claimed that the ACA increases their administrative expenses in many ways, the Court reasoned that such expenses are traceable, not to the unenforceable mandate, but to aspects of the ACA whose constitutionality has not been questioned. This implicates the severability argument. That is, the theory that if the mandate is not severable from the rest of Obamacare, and the mandate is void, the rest of the statute has to go.

Breyer’s opinion largely sidestepped this “standing-through-severability” position, but it was the main thrust of Justice Samuel Alito’s dissent, which was joined by Justice Neil Gorsuch. While sympathetic to standing-through-severability, Justice Thomas, in concurring with the majority’s rejection of it, concluded that the claim had not properly been raised either in the lower courts or earlier in the Supreme Court litigation. Thomas additionally reasoned that the soundness of the “standing through severability” theory had not been tested; this, under the circumstances, was the wrong case for such an exercise.

Health-care policy badly needs to be addressed. But that remains a task for Congress. It was never the Court’s job to do it, and it has been obvious for a decade that the Roberts Court, even with a now stronger conservative majority, intends to defer to Congress.


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