Bench Memos

Law & the Courts

The Latest ACA Challenge Reaches the Fifth Circuit

Oral argument in Texas v. U.S.

This afternoon, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit will hear oral argument in Texas v. United States, the latest challenge to the lawfulness of the Affordable Care Act. This suit, filed by multiple state attorneys general, argues that the entire ACA must fall because the so-called individual mandate, stripped of its constitutionality saving tax penalty, is unconstitutional. Late last year, a federal district court agreed, and that decision is now being appealed.

As some readers my know, while I supported prior challenges to the ACA and its implementation, I do not believe this suit has much merit. Over at the Volokh Conspiracy, I have a post summarizing the issues and linking to more detailed analyses. My bottom line: This suit should fail and ultimately will fail, if not before the Fifth Circuit, then before the Supreme Court.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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