Today the Supreme Court hears oral argument in California v. Texas. In this post I am live blogging the oral argument, identifying questions and responses that are interesting or potentially important. My last case preview and prior posts on this litigation are available in this post from last night.
First up is California Solicitor General Michael Mongan, on behalf of the intervenor states seeking to defend the ACA, stressing that the individual mandate does not operate as a mandate, but rather offers a choice, as the Court had concluded in NFIB v. Sebelius.
Chief Justice opens questioning with standing: Does someone who fails to purchase insurance violate the law? No, says Mongan. What if they later apply for a job and are asked whether they have ever violated the law? No one has made such a claim of injury here, notes that relevant precedent requires a prospect of enforcement. Standing is on the Chief’s mind (as it appears to be on the minds of others).
Justice Thomas follows up on standing questions, wondering whether opprobrium from failing to follow the law might be sufficient to establish standing. As Mongan notes, no such claim was alleged here. No such harm has been asserted. Justice Thomas also raises question of how standing, statutory interpretation, and severability should interact.
Justice Breyer asks about the Department of Justice’s theory of standing. Mongan notes this is a “novel” theory of standing that would enable all sorts of litigants to use the alleged infirmity of the mandate to challenge any other part of the law they don’t like, e.g., restaurants could use this theory to challenge the calorie count disclosure requirements.
Justice Alito turns to state theory of standing, asking whether they could seek a declaratory judgment. As Mongan notes, the provision Texas cites as its alleged injury is a separate provision of the statute, not the mandate, so does not establish standing to challenge the mandate. Justice Alito pushes back a little, but Mongan holds to his position, nothing that Texas has not alleged any argument about why the provisions that allegedly harm Texas are themselves unconstitutional.
Justice Sotomayor helps Mongan underline the point, and then asks for best argument that the mandate, Section 5000A, is not a command. Mongan obliges, and they have a back and forth on whether 5000A actually mandates than anybody does anything. Mongan further notes Texas offered no evidence that amendment to Section 5000A imposes any additional costs on Texas, as is required of parties claiming standing at summary judgment.
Justice Kagan keeps the discussion on standing—the Court really seems to care about this. She asks whether Texas can assert standing on the basis that more people may enroll in other programs as a result of the mandate, even if it is not enforced. While Justice Kagan is a near-certain vote against the plaintiffs, it is not clear she wants the Court to decide the case on standing grounds. If there are two or three votes to dispatch this case on standing grounds, this will present an interesting conundrum for the more liberal justices, who like more permissive standing rules, but clearly want this case to fail.
Justice Gorsuch asks whether the United States could bring a civil enforcement action to enforce the mandate. Mongan rejects this claim because NFIB said there was no legal consequence from failing to comply with a mandate other than paying the tax penalty. But what if? Justice Gorsuch asks. Mongan responds noting that the Court’s standing cases claim that there still needs to be a reasonable prospect of enforcement for there to be jurisdiction, but also notes that the state intervenors are happy to press their claims on the merits. Justice Gorsuch asks additional questions about Texas’ claims, including the implications of the CBO report indicating that some people may acquire insurance because of the mandate despite the lack of a penalty.
Justice Kavanaugh returns to individual standing, asks whether someone could challenge a law declaring that every homeowner should fly an American flag in front of their house, if the law lacked any enforcement provision. Mongan says there might be plausible claims, perhaps raising First Amendment claims, but no such arguments were made here. Justice Kavanaugh asks whether there are any other provisions of federal law imposing a mandate without penalty. Mongan says no. Turning to the merits, Kavanaugh asks whether 5000A can still be read as a tax if it does not raise revenue.
Justice Barrett asks whether it is relevant that the mandate was not repealed. Mongan responds that Congress understood 5000A offered a choice (as the Court had said in NFIB) and merely altered the consequences of the choice. On the standing front, Barrett asks whether the analysis would be different if the government maintained a record of whether or not individuals were complying with the mandate. Mongan notes that’s not at issue here, and then pivots to note that even if plaintiffs have standing, declaring that the mandate is not enforceable against them would fully redress their injuries.
[. . . developing . . .]
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