The ACA ruling is a victory for common sense
The first time the Supreme Court decided an Affordable Care Act case, back in 2012, the result was a historic case with a complicated opinion written by the chief justice. It’s still studied closely in law schools. This year, the court revisited the ACA — this time as farce.
The Supreme Court rejected a coordinated, partisan challenge to the law by holding that no one, neither individuals nor states, had standing to bring the case to court at all. The 7-2 decision was a nice reminder that most members of the court’s conservative majority can still exercise common sense even in cases where the Republican base is fired up.
As you may recall, the first ACA challenge focused on the individual mandate provision of the law, which originally said that everyone must have health care coverage or pay a penalty in the form of the tax. The court narrowly upheld the individual mandate, 5-4.
Then a funny thing happened: The Obama administration never really enforced the individual mandate. Subsequently, Congress amended the law so that there is no penalty attached to the individual mandate. The law requiring you to have health insurance stayed on the books, but if you don’t have health insurance, you don’t have to pay a penalty to the IRS.
Trying to be clever, more than a dozen Republicancontrolled states challenged the new, no-teeth law in federal court. They argued that Congress lacked the power to establish the mandate, as the four dissenting justices had held in 2012. Then they went on to say that, because the mandate was inextricably linked to the rest of the law, the whole ACA should be struck down.
The simplest solution was for the court to say that, because the plaintiffs did not have standing, it did not have to decide the issue of whether the no penalty mandate was still unconstitutional. Justice Stephen Breyer wrote the opinion explaining, sensibly, that no one has standing to challenge a law that is not enforceable.
The basic idea of standing is that there must be a live, real controversy before the court, exemplified in part by the requirement that a plaintiff has suffered with the court calls “concrete injury.” If failing to follow the law has zero consequences, there is no concrete injury to individuals. And the opinion also concluded, logically, that the states aren’t injured by the fact that the mandate provision is unenforceable.
It was unsurprising that Chief Justice John Roberts joined Breyer’s opinion, given that he had defected from his conservative colleagues in voting to uphold the mandate last time. Justice Clarence Thomas joined, too — writing separately to explain that although he felt sympathy for the conservative dissenters, there really was no standing where there was no injury.
Trump appointees Justices Brett Kavanaugh and Amy
Coney Barrett also joined Breyer’s opinion. With the remaining liberals, Justices Elena Kagan and Sonya Sotomayor, that rounded out the majority of seven. Kavanaugh and Barrett could safely base their votes on a conservative view of standing. But their votes also likely reflect a commonsense recognition that it would be absurd to strike down the ACA on the theory propounded by the states.
Justice Samuel Alito dissented, joined by Justice Neil Gorsuch. Alito’s theory was that the states did have standing because implementing the ACA costs them money and the individual mandate is an inextricable part of the ACA, as the Obama administration long ago claimed.
For the case to have come out the other way, Thomas, Kavanaugh and Barrett would all have to have bought Alito’s argument. No doubt they had subtly different reasons for rejecting it. Thomas, to be sure, is a formalist who does not care about practical outcomes. Yet the fact remains that Kavanaugh and Barrett did not go down the conservative rabbit hole when invited to do so. Sometimes, common sense wins.