# State of Texas v. USA

> Court of Appeals for the Fifth Circuit · January 9, 2020

URL: https://www.frixlaw.com/law-library/cases/4471037

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 9, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** United States Civil
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4471037

## How later opinions describe it (automated extraction)

- finding a concrete injury when a regulation caused economic harm from lost profit

## Opinion text

Case: 19-10011 Document: 00515265674 Page: 1 Date Filed: 01/09/2020

REVISED January 9, 2020

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
December 18, 2019
No. 19-10011
Lyle W. Cayce
Clerk
STATE OF TEXAS; STATE OF ALABAMA; STATE OF ARIZONA; STATE
OF FLORIDA; STATE OF GEORGIA; STATE OF INDIANA; STATE OF
KANSAS; STATE OF LOUISIANA; STATE OF MISSISSIPPI, by and
through Governor Phil Bryant; STATE OF MISSOURI; STATE OF
NEBRASKA; STATE OF NORTH DAKOTA; STATE OF SOUTH
CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TENNESSEE;
STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF ARKANSAS;
NEILL HURLEY; JOHN NANTZ,

Plaintiffs – Appellees,

v.

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF
HEALTH; HUMAN SERVICES; ALEX AZAR, II, SECRETARY, U.S.
DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF INTERNAL REVENUE; CHARLES P. RETTIG, in his
Official Capacity as Commissioner of Internal Revenue,

Defendants – Appellants,

STATE OF CALIFORNIA; STATE OF CONNECTICUT; DISTRICT OF
COLUMBIA; STATE OF DELAWARE; STATE OF HAWAII; STATE OF
ILLINOIS; STATE OF KENTUCKY, ex rel. Andy Beshear, Governor; STATE
OF MASSACHUSETTS; STATE OF NEW JERSEY; STATE OF NEW YORK;
STATE OF NORTH CAROLINA; STATE OF OREGON; STATE OF RHODE
ISLAND; STATE OF VERMONT; STATE OF VIRGINIA; STATE OF
WASHINGTON; STATE OF MINNESOTA,

Intervenor-Defendants – Appellants.
Case: 19-10011 Document: 00515265674 Page: 2 Date Filed: 01/09/2020

No. 19-10011

Appeals from the United States District Court
for the Northern District of Texas

Before KING, ELROD, and ENGELHARDT, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
The Patient Protection and Affordable Care Act (the Act or ACA) is a
monumental piece of healthcare legislation that regulates a huge swath of the
nation’s economy and affects the healthcare decisions of millions of Americans.
The law has been a focal point of our country’s political debate since it was
passed nearly a decade ago. Some say that the Act is a much-needed solution
to the problem of increasing healthcare costs and lack of healthcare
availability. Many of the amici in this case, for example, argue that the law
has extensively benefitted everyone from children to senior citizens to local
governments to small businesses. Others say that the Act is a costly exercise
in burdensome governmental regulation that deprives people of economic
liberty. Amici of this perspective argue, for example, that the Act “has deprived
patients nationwide of a competitive market for affordable high-deductible
health insurance,” leaving “patients with no alternative to . . . skyrocketing
premiums.” Association of American Physicians & Surgeons Amicus Br. at 15.
None of these policy issues are before the court. And for good reason—
the courts are not institutionally equipped to address them. These issues are
far better left to the other two branches of government. The questions before
the court are far narrower: questions of law, not of policy. Those questions are:
First, is there a live case or controversy before us even though the federal
defendants have conceded many aspects of the dispute; and, relatedly, do the
intervenor-defendant states and the U.S. House of Representatives have
standing to appeal? Second, do the plaintiffs have standing? Third, if they do,
2
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No. 19-10011
is the individual mandate unconstitutional? Fourth, if it is, how much of the
rest of the Act is inseverable from the individual mandate?
We answer those questions as follows: First, there is a live case or
controversy because the intervenor-defendant states have standing to appeal
and, even if they did not, there remains a live case or controversy between the
plaintiffs and the federal defendants. Second, the plaintiffs have Article III
standing to bring this challenge to the ACA; the individual mandate injures
both the individual plaintiffs, by requiring them to buy insurance that they do
not want, and the state plaintiffs, by increasing their costs of complying with
the reporting requirements that accompany the individual mandate. Third,
the individual mandate is unconstitutional because it can no longer be read as
a tax, and there is no other constitutional provision that justifies this exercise
of congressional power. Fourth, on the severability question, we remand to the
district court to provide additional analysis of the provisions of the ACA as they
currently exist.
I.
On March 23, 2010, President Barack Obama signed the ACA into law.
See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat.
119 (2010). The Act sought to “increase the number of Americans covered by
health insurance and decrease the cost of health care” through several key
reforms. See Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519, 538
(2012).
Some of those reforms implemented new consumer protections, aiming
primarily to protect people with preexisting conditions. For example, the law
prohibits insurers from refusing to cover preexisting conditions. 42 U.S.C.
§ 300gg-3. The “guaranteed-issue requirement” forbids insurers from turning
customers away because of their health. See 42 U.S.C. §§ 300gg, 300gg-1. The
“community-rating requirement” keeps insurers from charging people more
3
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No. 19-10011
because of their preexisting health issues. 42 U.S.C. § 300gg-4. 1 The law also
requires insurers to provide coverage for certain types of care, including
women’s and children’s preventative care. 42 U.S.C. § 300gg-13(a)(3)–(4). 2
Other reforms sought to lower the cost of health insurance by using both
policy “carrots” and “sticks.” 3 On the stick side, the individual mandate—
which plaintiffs challenge in the instant case—requires individuals to
“maintain [health insurance] coverage.” 26 U.S.C. § 5000A(a). If individuals
do not maintain this coverage, they must make a payment to the IRS called a
“shared responsibility payment.” 4 Id.; see also King v. Burwell, 135 S. Ct. 2480,
2486 (2015).

1 The ACA features a few other consumer-protection reforms of note. For example,
the Act requires insurance companies to allow young adults to stay on their parents’ health
insurance plans until they turn 26; prohibits insurers from imposing caps on the value of
benefits provided; and mandates that the insurance plans cover at least ten “essential health
benefits,” including emergency services, prescription drugs, and maternity and newborn care.
See 42 U.S.C. §§ 300gg-14 (young adults), 300gg-11 (restriction on benefit caps), 18022
(essential health benefits). The ACA also requires employers with at least fifty full-time
employees to pay the federal government a penalty if they fail to provide their employees
with ACA-compliant coverage. 26 U.S.C. § 4980H.

2 The women’s preventative care provision was at issue in a trio of recent Supreme
Court cases. See Zubik v. Burwell, 136 S. Ct. 1557 (2016); Wheaton College v. Burwell, 573
U.S. 958 (2014); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); see also California
v. U.S. Dep’t of Health & Human Servs., No. 19-15072, 2019 WL 5382250 (9th Cir. Oct. 22,
2019); Pennsylvania v. President United States, 930 F.3d 543 (3d Cir. 2019), as amended (July
18, 2019); DeOtte v. Azar, 393 F. Supp. 3d 490, 495 (N.D. Tex. 2019).

3 Some opponents of the ACA assert that the goal was not to lower health insurance
costs, but that the entire law was enacted as part of a fraud on the American people, designed
to ultimately lead to a federal, single-payer healthcare system. In a hearing before the House
Committee on Oversight and Government Reform, for example, Representative Kerry
Bentivolio suggested that Jonathan Gruber, who assisted in crafting the legislation, had
“help[ed] the administration deceive the American people on this healthcare act or [told] the
truth in [a] video . . . about how [the Act] was a fraud upon the American people.” Examining
Obamacare Transparency Failures: Hearing Before the H. Comm. on Oversight and
Government Reform, 113th Cong. 83 (2014) (statement of Rep. Kerry Bentivolio).

4 The Act exempts several groups of people from the shared responsibility payment.
Specifically, the Act provides that “[n]o penalty shall be imposed” on those “who cannot afford
[insurance] coverage,” on “[t]axpayers with income below [the] filing threshold,” on
4
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The individual mandate was designed to lower insurance premiums by
broadening the insurance pool. See 42 U.S.C. § 18091(2)(J) (“By significantly
increasing . . . the size of purchasing pools, . . . the [individual mandate] will
significantly . . . lower health insurance premiums.”). When the young and
healthy must buy insurance, the insurance pool faces less risk, which, at least
in theory, leads to lower premiums for everyone. See 42 U.S.C. § 18091(2)(I)
(positing that the individual mandate will “broaden the health insurance risk
pool to include healthy individuals, which will lower health insurance
premiums”). The individual mandate thus serves as a counterweight to the
ACA’s protections for preexisting conditions, which push riskier, costlier
individuals into the insurance pool. Under the protections for consumers with
preexisting conditions, if there were no individual mandate, there would
arguably be an “adverse selection” problem: “many individuals would,” in
theory, “wait to purchase health insurance until they needed care.” Id. 5
The Act also sought to lower insurance costs for some consumers through
policy “carrots,” providing tax credits to offset the cost of insurance to those
with incomes under 400 percent of the federal poverty line. See 26 U.S.C.
§ 36B; 42 U.S.C. §§ 18081, 18082. The Act also created government-run,
taxpayer-funded health insurance marketplaces—known as “Exchanges”—
which allow customers “to compare and purchase insurance plans.” King, 135

“[m]embers of Indian tribes,” on those who had only “short coverage gaps,” or on anyone who,
in the Secretary of Health and Human Services’ determination, has “suffered a hardship.”
26 U.S.C. § 5000A(e).

5 Opponents of the ACA, however, argue that the Act goes too far in limiting
individuals’ freedom to choose healthcare coverage. For example, at a House committee
hearing, Representative Darrell Issa argued that one of the “false claims” that the Obama
administration made in passing the Act was that “[i]f you like your doctor, you will be able to
keep your doctor, period. . . . [And i]f you like your [insurance] plan, you can keep your plan.”
Examining Obamacare Transparency Failures: Hearing Before the H. Comm. on Oversight
and Government Reform, 113th Cong. 2 (2014) (statement of Rep. Darrell Issa, Chairman, H.
Comm. on Oversight and Government Reform).
5
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S. Ct. at 2485; see also 42 U.S.C. § 18031. Opponents of the law argue that the
law has led to unintended subsidies to keep plans afloat and insurance
companies in the black. Texas points in its brief, for example, to a
Congressional Budget Office study estimating that federal outlays for health
insurance subsidies and related spending will rise by about 60 percent over the
next ten years, from $58 billion in 2018 to $91 billion by 2028. CBO, The
Budget and Economic Outlook: 2018 to 2028 at 51 (April 2018), available at
https://tinyurl.com/CBOBudgetEconOutlook-2018-2028; State Plaintiffs’ Br. at
13–14.
The ACA also enlarged the class of people eligible for Medicaid to include
childless adults with incomes up to 133 percent of the federal poverty line. 42
U.S.C. §§ 1396a(a)(10)(A)(i)(VII), 1396a(e)(14)(I)(i); NFIB, 567 U.S. at 541–42.
The ACA originally required each state to expand its Medicaid program or risk
losing “all of its federal Medicaid funds.” NFIB, 567 U.S. at 542. In NFIB,
however, the Supreme Court held that this exceeded Congress’ powers under
the Spending Clause. Id. at 585 (plurality opinion). But the Court allowed
those states that wanted to accept Medicaid expansion funds to do so. See id.
at 585–86 (plurality opinion); id. at 645–46 (Ginsburg, J., concurring in part,
concurring in the judgment in part, and dissenting in part). As a result, the
states that have not participated in the expansion now subsidize, through their
general tax dollars, the states that have participated in expansion.
Since the Act was passed, its opponents have attempted to attack it both
through congressional amendment and through litigation. Between 2010 and
2016, Congress considered several bills to repeal, defund, delay, or amend the
ACA. See Intervenor-Defendant States’ Br. at 10. Except for a few modest
changes, these efforts were closely fought but ultimately failed. Intervenor-
Defendant States’ Br. at 10–11. In 2017, the shift in presidential
administrations reinvigorated opposition to the law, but many of these later
6
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No. 19-10011
legislative efforts failed as well. In March 2017, House leaders pulled a bill
that would have repealed many of the ACA’s essential provisions. In July
2017, the Senate voted on three separate bills that similarly would have
repealed major provisions of the Act, but each vote failed. 6 Finally, in
September 2017, several Senators introduced another bill that would have
repealed some of the ACA’s most significant provisions, but Senate leaders
ultimately chose not to bring it to the floor for a vote. Intervenor-Defendant
States’ Br. at 11.
The ACA’s opponents also took their cause to the courts in a series of
lawsuits, some of which reached the Supreme Court. Particularly relevant
here, the Court, in NFIB, upheld the law’s individual mandate. 567 U.S. at
574. Through fractured voting and shifting majorities—explained in more
detail in Part V of this opinion—the Court decided that the ACA’s individual
mandate could be read as a tax on an individual’s decision not to purchase
insurance, which was a constitutional exercise of Congress’ taxing powers
under Article I of the U.S. Constitution. Id.; U.S. Const. art. I, § 8, cl. 1. The
Court favored this tax interpretation to save the provision from
unconstitutionality. Reading the provision as a standalone command to
purchase insurance would have rendered it unconstitutional. This reading
could not have been justified under the Commerce Clause because it would
have done more than “regulate commerce . . . among the several states.” U.S.
Const. art. I, § 8, cl. 3. It would have compelled individuals to enter commerce
in the first place. 7 NFIB, 567 U.S. at 557–58. The Court also held that the

One of these bills failed by a razor-thin vote of fifty-one against, forty-nine in favor.
6

See 163 Cong. Rec. S4415 (daily ed. July 27, 2017).

Chief Justice Roberts cautioned that concluding otherwise would empower the
7

government to compel Americans into all kinds of behavior that the government thinks is
7
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No. 19-10011
provision could not be justified under the Constitution’s Necessary and Proper
Clause. Id. at 561 (Roberts, C.J.); id. at 654–55 (Scalia, Kennedy, Thomas, and
Alito, JJ., dissenting).
In December 2017, the ACA’s opponents achieved some legislative
success. As part of the Tax Cuts and Jobs Act, Congress set the “shared
responsibility payment” amount—the amount a person must pay for failing to
comply with the individual mandate—to the “lesser” of “zero percent” of an
individual’s household income or “$0,” effective January 2019. Pub. L. No. 115-
97, § 11081, 131 Stat. 2054, 2092 (2017); see also 26 U.S.C. § 5000A(c). The
individual mandate is still “on the books” of the U.S. Code and still consists of
the three fundamental components it always featured. Subsection (a)
prescribes that certain individuals “shall . . . ensure” that they and their
dependents are “covered under minimum essential coverage.” 26 U.S.C.
§ 5000A(a). Subsection (b) “impose[s] . . . a penalty” called a “[s]hared
responsibility payment” on those who fail to ensure they have minimum
essential coverage. 26 U.S.C. § 5000A(b). Subsection (c) sets the amount of
that payment. All Congress did in 2017 was change the amount in subsection
(c) to zero dollars. 26 U.S.C. § 5000A(c).
Two months after the shared responsibility payment was set at zero
dollars, the plaintiffs here—two private citizens 8 and eighteen states 9—filed
this lawsuit against several federal defendants: the United States of America,

beneficial for them, including, for example, compelling them to purchase broccoli. See NFIB,
567 U.S. at 558 (Roberts, C.J.).

8 Namely, Neill Hurley and John Nantz.

9 Namely, Texas, Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana,
Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee,
Utah, West Virginia, and Arkansas. Wisconsin, which was originally a plaintiff state, sought
and was granted dismissal from the appeal.
8
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the Department of Health and Human Services and its Secretary, Alex Azar,
as well as the Internal Revenue Service and its Acting Commissioner, David J.
Kautter. The plaintiffs argued that the individual mandate was no longer
constitutional because: (1) NFIB rested the individual mandate’s
constitutionality exclusively on reading the provision as a tax; and (2) the 2017
amendment undermined any ability to characterize the individual mandate as
a tax because the provision no longer generates revenue, a requirement for a
tax. The plaintiffs argued further that, because the individual mandate was
essential to and inseverable from the rest of the ACA, the entire ACA must be
enjoined. On this theory, the plaintiffs sought declaratory relief that the
individual mandate is unconstitutional and the rest of the ACA is inseverable.
The plaintiffs also sought an injunction prohibiting the federal defendants
from enforcing any provision of the ACA or its regulations.
The federal defendants agreed with the plaintiffs that once the shared
responsibility payment was reduced to zero dollars, the individual mandate
was no longer constitutional. They also agreed that the individual mandate
could not be severed from the ACA’s guaranteed-issue and community-rating
requirements. Unlike the plaintiffs, however, the federal defendants
contended in the district court that those three provisions could be severed
from the rest of the Act. Driven by the federal defendants’ decision not to fully
defend against the lawsuit, sixteen states 10 and the District of Columbia
intervened to defend the ACA.
The district court agreed with the plaintiffs’ arguments on the merits.
Specifically, the court held that: (1) the individual plaintiffs had standing

10 Namely, California, Connecticut, Delaware, Hawaii, Illinois, Kentucky,
Massachusetts, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont,
Virginia, Washington, and Minnesota.

9
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No. 19-10011
because the individual mandate compelled them to purchase insurance;
(2) setting the shared responsibility payment to zero rendered the individual
mandate unconstitutional; and (3) the unconstitutional provision could not be
severed from any other part of the ACA. The district court granted the
plaintiffs’ claim for declaratory relief. Specifically, the district court’s order
“declares the Individual Mandate, 26 U.S.C. § 5000A(a),
UNCONSTITUTIONAL,” and the order further declares that “the remaining
provisions of the ACA, Pub L. 111-148, are INSEVERABLE and therefore
INVALID.” The district court, however, denied the plaintiffs’ application for a
preliminary injunction. The district court entered partial final judgment 11 as
to the grant of summary judgment for declaratory relief, but stayed judgment
pending appeal. This appeal followed.
On appeal, the U.S. House of Representatives intervened to join the
intervenor-defendant states in defending the ACA. 12 Also on appeal, the
federal defendants changed their litigation position. After contending in the
district court that only a few provisions of the ACA were inseverable from the
individual mandate, the federal defendants contend in their opening brief for
the first time that all of the ACA is inseverable. See Fed. Defendants’ Br. at
43–49. Moreover, the federal defendants contend for the first time on appeal

11 The final judgment is only partial because it addresses only Count One of the
plaintiffs’ amended complaint. Count One requests a declaratory judgment that the
individual mandate exceeds Congress’ constitutional powers. The district court has not yet
ruled on the other counts in the amended complaint. In Count Two, the plaintiffs request a
declaratory judgment that the ACA violates the Due Process Clause of the Fifth Amendment.
In Count Three, the plaintiffs request a declaratory judgment that the ACA violates the
Tenth Amendment. In Count Four, the plaintiffs request a declaratory judgment that agency
rules promulgated pursuant to the ACA are unlawful. In Count Five, the plaintiffs request
an injunction prohibiting federal officials from “implementing, regulating, or otherwise
enforcing any part of the ACA.”

12 In addition to the U.S. House, four other states intervened on appeal to join the
original group that defended the Act in the district court: Colorado, Iowa, Michigan, and
Nevada.
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that—even though the entire ACA is inseverable—the court should not enjoin
the enforcement of the entire ACA. The federal defendants now argue that the
district court’s judgment should be affirmed “except insofar as it purports to
extend relief to ACA provisions that are unnecessary to remedy plaintiffs’
injuries.” 13 Fed. Defendants’ Br. at 49. They also now argue that the district
court’s judgment “cannot be understood as extending beyond the plaintiff
states to invalidate the ACA in the intervenor states.” Fed. Defendants’ Supp.
Br. at 10. Simply put, the federal defendants have shifted their position on
appeal more than once.
II.
We review a district court’s grant of summary judgment de novo. Time
Warner Cable, Inc. v. Hudson, 667 F.3d 630, 638 (5th Cir. 2012). Summary
judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Dialysis Newco, Inc. v. Cmty.
Health Sys. Grp. Health Plan, 938 F.3d 246, 250 (5th Cir. 2019). A dispute
about a material fact is genuine if “the evidence is such that a reasonable jury
could return a verdict for the non-moving party.” Amerisure Ins. v. Navigators
Ins., 611 F.3d 299, 304 (5th Cir. 2010) (quoting Gates v. Tex. Dep’t of Protective
& Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008)). When ruling on a
motion for summary judgment, the court views all inferences drawn from the

13The federal defendants do not specify which precise provisions, in their view, injure
the plaintiffs and which do not.
11
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factual record “in the light most favorable to the non-moving parties below.”
Trent v. Wade, 776 F.3d 368, 373 n.1 (5th Cir. 2015).
III.
We first must consider whether there is a live “[c]ase” or “[c]ontroversy”
before us on appeal, as Article III of the U.S. Constitution requires. U.S. Const.
art. III, § 1. A case or controversy does not exist unless the person asking the
court for a decision—in this case, asking us to decide whether the district
court’s judgment was correct—has standing, which requires a showing of
“injury, causation, and redressability.” Sierra Club v. Babbitt, 995 F.2d 571,
574 (5th Cir. 1993). When “standing to appeal is at issue, appellants must
demonstrate some injury from the judgment below.” Id. at 575 (emphasis
omitted).
We conclude, as all parties agree, that there is a case or controversy
before us on appeal. Two groups of parties appealed from the district court’s
judgment: the federal defendants, and the intervenor-defendant states. 14
There is a case or controversy before us because both of these groups have their
own independent standing to appeal. 15
The federal defendants have standing to appeal. The instant case is on
all fours with the Supreme Court’s decision in United States v. Windsor, 570
U.S. 744 (2013). In that case, the executive branch of the federal government
declined to defend a federal statute that did not allow the surviving spouse of

14 The U.S. House of Representatives, also a party in this case, intervened in our court
after the intervenor-defendant states and the federal government had filed notices of appeal.

15Even if only one of these parties had standing to appeal, that would be enough to
sustain the court’s jurisdiction. An intervenor needs standing only “in the absence of the
party on whose side the intervenor intervened.” Sierra Club, 995 F.2d at 574 (alteration
omitted) (quoting Diamond v. Charles, 476 U.S. 54, 68 (1986)); see also Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (1977) (exercising jurisdiction
because “at least one” plaintiff had standing to sue).

12
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No. 19-10011
a same-sex couple to receive a spousal tax deduction. Id. at 749–53. The
district court ruled that the statute was unconstitutional and ordered the
executive branch to issue a tax refund to the surviving spouse. Id. at 754–55.
The executive branch agreed with the district court’s legal conclusion, but it
appealed the judgment and continued to enforce the statute by withholding the
tax refund until a final judicial resolution. Id. at 757–58.
The Supreme Court ruled that “the United States retain[ed] a stake
sufficient to support Article III jurisdiction.” Id. at 757. That stake was the
tax refund, which the federal government refused to pay. This threat of
payment of money from the Treasury constituted “a real and immediate
economic injury” to the federal government, which was sufficient for standing
purposes. Id. at 757–58 (quoting Hein v. Freedom From Religion Found., Inc.,
551 U.S. 587, 599 (2007) (plurality opinion)). As the Court explained, “the
refusal of the Executive to provide the relief sought suffices to preserve a
justiciable dispute as required by Article III.” Id. at 759; see also Food Mktg.
Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2362 (2019) (concluding that there
was a justiciable controversy because the government “represented
unequivocally” that it would not voluntarily moot the controversy absent a
final judicial order, and “[t]hat is enough to satisfy Article III”); INS v. Chadha,
462 U.S. 919, 939 (1983) (holding that there was “adequate Art. III
adverseness” because the executive branch determined that a federal statute
was unconstitutional and refused to defend it but simultaneously continued to
abide by it).
The instant case is similar. Though the plaintiffs and the federal
defendants are in almost complete agreement on the merits of the case, the
government continues to enforce the entire Act. The federal government has
made no indication that it will begin dismantling any part of the ACA in the
absence of a final court order. Just as in Windsor, then, effectuating the
13
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No. 19-10011
district court’s order would require the federal government to take actions that
it would not take “but for the court’s order.” Windsor, 570 U.S. at 758. And
just as in Windsor, the federal defendants stand to suffer financially if the
district court’s judgment is affirmed. 16 As just one example, the district court’s
judgment declares the Act’s Medicare reimbursement schedules unlawful,
which, if given effect, would require Medicare to reimburse healthcare
providers at higher rates. See, e.g., 42 U.S.C. § 1395ww(b)(3)(B)(xi)–(xii).
Therefore, just as in Windsor, an appellate decision here will “have real
meaning.” 570 U.S. at 758 (quoting Chadha, 462 U.S. at 939). 17
The intervenor-defendant states also have standing to appeal. While a
party’s mere “status as an intervenor below . . . does not confer standing,”
Diamond v. Charles, 476 U.S. 54, 68 (1986), intervenors may appeal if they can
demonstrate injury from the district court’s judgment. Sierra Club, 995 F.2d
at 574; see also Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951
(2019); Cooper v. Tex. Alcoholic Beverage Comm’n, 820 F.3d 730, 737 (5th Cir.
2016). The intervenor-defendant states have made this showing because the
district court’s judgment, if ultimately given effect, would: (1) strip these states
of funding that they receive under the ACA; and (2) threaten to hamstring
these states in possible future litigation because of the district court
judgment’s potentially preclusive effect. 18

16The dissenting Justices in Windsor objected to the Windsor majority’s approach to
standing. Justice Scalia, for example, said that this approach to standing “would have been
unrecognizable to those who wrote and ratified our national charter.” Windsor, 570 U.S. at
779 (Scalia, J., dissenting). We are bound by the Windsor majority opinion.

17Just as in Windsor, moreover, principles of prudential standing weigh in favor of
exercising jurisdiction despite the government’s alignment with the plaintiffs. Just like the
intervenors in Windsor, the intervenor-defendant states and the U.S. House both put on a
“sharp adversarial presentation of the issues.” Id. at 761.

18 At first glance, it may not be entirely clear how a mere partial summary judgment
on the issuance of a declaratory judgment would aggrieve anyone. But at oral argument, all
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First, the intervenor-defendant states receive significant funding from
the ACA, which would be discontinued if we affirmed the district court’s
judgment declaring the entire Act unconstitutional. “[F]inancial loss as a
result of” a district court’s judgment is an injury sufficient to support standing
to appeal. United States v. Fletcher ex rel. Fletcher, 805 F.3d 596, 602 (5th Cir.
2015). In their supplemental briefing, the intervenor-defendant states identify
a few examples of the funding sources they would lose under the district court’s
judgment. Evidence in the record shows that eliminating the Act’s Medicaid
expansion provisions alone would cost the original sixteen intervening state
defendants and the District of Columbia a total of more than $418 billion in
the next decade. See 42 U.S.C. §§ 1396a(a)(10)(A)(i)(VIII), (e)(14)(I)(i),
1396d(y)(1). Moreover, the Act’s Community First Choice Option program
gives states funding to care for the disabled and elderly at home or in their
communities instead of in institutions. See 42 U.S.C. § 1396n(k). Record
evidence shows that eliminating this program would cost California $400
million in 2020, and that Oregon and Connecticut have already received $432.1
million under this program. This evidence is more than enough to show that
the intervenor-defendant states would suffer financially if the district court’s
judgment is given effect, an injury sufficient to confer standing to appeal. See
Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 (2019).
The district court’s judgment, if given effect, also threatens to injure the
intervenor-defendant states with the judgment’s potentially preclusive effect
in future litigation. We have held that “[a] party may be aggrieved by a district
court decision that adversely affects its legal rights or position vis-à-vis other

parties agreed that the district court’s partial summary judgment would have binding effect.
Indeed, this is partly why the district court issued a stay. The district court acknowledged
that the intervenor-defendant states would be prejudiced by the judgment, which means that
the district court understood it to be binding.
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parties in the case or other potential litigants.” Leonard v. Nationwide Mut.
Ins., 499 F.3d 419, 428 (5th Cir. 2007) (quoting Custer v. Sweeney, 89 F.3d
1156, 1164 (4th Cir. 1996)). If the federal defendants began unwinding the
ACA, either in reliance on the district court’s judgment or on their own, the
district court’s judgment would potentially estop the intervenor-defendant
states from challenging that action in court. This case thus stands in contrast
to the cases in which there was no chance whatsoever of a preclusive effect.
See Klamath Strategic Inv. Fund ex rel. St. Croix Ventures v. United States,
568 F.3d 537, 546 (5th Cir. 2009) (holding that there was no threatened injury
from potential estoppel from the appealed-from judgment because that
judgment was interlocutory, not final, and therefore could not estop the
appealing party).
Finally, we examine the standing of the U.S. House of Representatives,
which intervened after the case had been appealed. The Supreme Court’s
recent decision in Virginia House of Delegates v. Bethune-Hill calls the House’s
standing to intervene into doubt. 139 S. Ct. at 1953 (“This Court has never
held that a judicial decision invalidating a state law as unconstitutional inflicts
a discrete, cognizable injury on each organ of government that participated in
the law’s passage.”). However, we need not resolve the question of the House’s
standing. “Article III does not require intervenors to independently possess
standing” when a party already in the lawsuit has standing and seeks the same
“ultimate relief” as the intervenor. Ruiz v. Estelle, 161 F.3d 814, 830 (5th Cir.
1998). That is the case here: the intervenor-defendant states have standing to
appeal, and the House seeks the same relief as those states. We accordingly
pretermit the issue of whether the House has standing to intervene.
IV.
We now turn to the issue of whether any of the plaintiffs had Article III
standing to bring this case at the time they brought the lawsuit. To be a case
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or controversy under Article III, the plaintiffs must satisfy the same three
requirements listed above. First, a plaintiff must have suffered an “injury in
fact”—a violation of a legally protected interest that is “concrete and
particularized,” as well as “actual or imminent, not ‘conjectural’ or
‘hypothetical.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (quoting
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Second, that injury must be
“fairly . . . trace[able] to the challenged action of the defendant, and not . . .
th[e] result [of] the independent action of some third party not before the
court.” Id. (alterations in original) (quoting Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26, 41–42 (1976)). Third, it must be “likely”—not merely
“speculative”—that the injury will be “redressed by a favorable decision.” Id.
at 561 (quoting Simon, 426 U.S. at 38, 43).
The instant case has two groups of plaintiffs: the individual plaintiffs
and the state plaintiffs. Only one plaintiff need succeed because “one party
with standing is sufficient to satisfy Article III’s case-or-controversy
requirement.” 19 Texas v. United States (DAPA), 809 F.3d 134, 151 (5th Cir.
2015) (quoting Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547
U.S. 47, 52 n.2 (2006)), aff’d by an equally divided court, 136 S. Ct. 2271
(2016). 20 The individual plaintiffs and the state plaintiffs allege different

19 For an academic critique of this approach, see Aaron-Andrew P. Bruhl, One Good
Plaintiff Is Not Enough, 67 Duke L. J. 481 (2017).

We refer to this 2015 case as “DAPA”—after Deferred Action for Parents of
20

Americans, the policy at issue there—to prevent confusion with the present case of the same
name.
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injuries. We evaluate each in turn and conclude that both the individual
plaintiffs and the state plaintiffs have standing.
A.
The standing issues presented by the individual plaintiffs are not novel.
The Supreme Court faced a similar situation when it decided NFIB in 2012.
At oral argument in that case, Justice Kagan asked Gregory Katsas,
representing NFIB, whether he thought “a person who is subject to the
[individual] mandate but not subject to the [shared responsibility payment]
would have standing.” Transcript of Oral Argument at 68, Dep’t of Health &
Human Servs. v. Florida, 567 U.S. 519 (2012) (No. 11-398). Mr. Katsas replied,
“Yes, I think that person would, because that person is injured by compliance
with the mandate.” Id. Mr. Katsas explained, “the injury—when that person
is subject to the mandate, that person is required to purchase health insurance.
That’s a forced acquisition of an unwanted good. It’s a classic pocketbook
injury.” Id. at 68–69.
In 2012, this questioning made sense because neither the individual
mandate nor the shared responsibility payment would be assessed for another
two years. Patient Protection and Affordable Care Act, Pub. L. No. 111-148,
§ 1501, 124 Stat. 119, 244 (2012) (requiring insurance coverage “for each
month beginning after 2013” and applying the shared responsibility payment
for any failure to purchase insurance “during any calendar year beginning
after 2013”). It was thus certainly imminent that the private plaintiffs would
be subject to the individual mandate, which applies to everyone, but not certain
that they would be subject to the shared responsibility payment, which
exempts certain people. 26 U.S.C. § 5000A(e) (prescribing that “[n]o penalty
shall be imposed” on certain groups of people). 21 The distinction was important

21 For the full list of exemptions, see supra note 4.
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because a plaintiff “must demonstrate standing for each claim he seeks to
press.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (quoting
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). To bring a claim
against the individual mandate, therefore, the plaintiffs needed to show injury
from the individual mandate—not from the shared responsibility payment.
Accordingly, the district court in NFIB ruled that the private plaintiffs
were injured by the ACA “because of the financial expense [they would]
definitively incur under the Act in 2014,” and the private plaintiffs’ need “to
take investigatory steps and make financial arrangements now to ensure
compliance then.” Florida ex rel. Bondi v. U.S. Dep’t of Health & Human
Servs., 780 F. Supp. 2d 1256, 1271 (N.D. Fla. 2011), aff’d in part and rev’d in
part, 648 F.3d 1235 (11th Cir. 2011), aff’d in part and rev’d in part, 567 U.S.
519 (2012). The record evidence in that case supported this conclusion. Mary
Brown, one of the private plaintiffs in that case, for example, had declared that
“to comply with the individual insurance mandate, and well in advance of 2014,
I must now investigate whether and how to rearrange my personal finance
affairs.” Appendix of Exhibits in Support of Plaintiffs’ Motion for Summary
Judgment, Florida v. U.S. Dep’t of Health & Human Servs., No. 3:10-cv-91-
RV/EMT (N.D. Fla. Nov. 10, 2010), ECF No. 80-6. At the Eleventh Circuit, all
parties agreed that Mary Brown had standing. Florida ex rel. Att’y. Gen. v.
U.S. Dep’t of Health & Human Servs., 648 F.3d 1235, 1243 (11th Cir. 2011),
aff’d in part and rev’d in part, 567 U.S. 519 (2012) (“Defendants do not dispute
that plaintiff Brown’s challenge to the minimum coverage provision is
justiciable.”). Congress could have reasonably contemplated people like Mary
Brown. As Mr. Katsas explained at oral argument in the Supreme Court,
“Congress reasonably could think that at least some people will follow the law

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precisely because it is the law.” Transcript of Oral Argument at 67, Dep’t of
Health & Human Servs. v. Florida, 567 U.S. 519 (2012) (No. 11-398).
The district court in the instant case followed a similar approach with
regard to the individual plaintiffs’ standing. 22 It concluded that because the
individual plaintiffs are the object of the individual mandate, which requires
them to purchase health insurance that they do not want, those plaintiffs have
demonstrated two types of “injury in fact”: (1) the financial injury of buying
that insurance; and (2) the “increased regulatory burden” that the individual
mandate imposes. In concluding that these injuries were caused by the
individual mandate, the court made specific fact findings that both Nantz and
Hurley purchased insurance solely because they are “obligated to comply with
the . . . individual mandate.” The district court made these findings based on
Nantz’s and Hurley’s declarations, which the intervenor-defendant states
never challenged. Because the undisputed evidence showed that the
individual mandate caused these injuries, the district court reasoned that a
favorable judgment would redress both injuries, allowing the individual
plaintiffs to forgo purchasing health insurance and freeing them “from what
they essentially allege to be arbitrary governance.”
We agree with the district court. The Supreme Court has held that when
a lawsuit challenges “the legality of government action or inaction, the nature
and extent of facts that must be averred (at the summary judgment stage) or
proved (at the trial stage) in order to establish standing depends considerably
upon whether” the plaintiffs are themselves the “object[s] of the action (or
forgone action) at issue.” Lujan, 504 U.S. at 561; see also Texas v. EEOC, 933
F.3d 433, 446 (5th Cir. 2019). “Whether someone is in fact an object of a

22 No party initially questioned the plaintiffs’ standing in the district court. An amicus
brief raised the issue, and the intervenor-defendant states addressed it at oral argument.
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regulation is a flexible inquiry rooted in common sense.” EEOC, 933 F.3d at
446 (quoting Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 265
(5th Cir. 2015)). If a plaintiff is indeed the object of a regulation, “there is
ordinarily little question that the action or inaction has caused [the plaintiff]
injury, and that a judgment preventing or requiring the action will redress it.”
Lujan, 504 U.S. at 561–62.
It is undisputed that Hurley and Nantz are the objects of the individual
mandate and that they have purchased insurance in order to comply with that
mandate. Record evidence supports these conclusions. In his declaration in
the district court, Nantz stated, “I continue to maintain minimum essential
health coverage because I am obligated.” Similarly, Hurley averred in his
declaration that he is “obligated to comply with the ACA’s individual
mandate.” They both explain in their declarations that they “value compliance
with [their] legal obligations” and bought insurance because they “believe that
following the law is the right thing to do.” Accordingly, the district court
expressly found that Hurley and Nantz bought health insurance because they
are obligated to, and we must defer to that factual finding. The evidentiary
basis for this injury is even stronger than it was in NFIB. In the instant case,
the individual mandate has already gone into effect, compelling Nantz and
Hurley to purchase insurance now as opposed to two years in the future.
The intervenor-defendant states fail to point to any evidence
contradicting these declarations, and they did not challenge this evidence in
the district court. In fact, some of the evidence these parties rely on actually
supports the conclusion that Nantz and Hurley purchased insurance to comply
with the individual mandate. The intervenor-defendant states acknowledge a
2017 report from the Congressional Budget Office indicating that “a small
number of people” would continue to buy insurance without a penalty “solely
because” of a desire to comply with the law. Cong. Budget Office, Repealing
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the Individual Health Insurance Mandate: An Updated Estimate 1 (Nov. 2017).
This report is at least somewhat consistent with a 2008 Congressional Budget
Office report, relied on by the state plaintiffs, that “[m]any individuals” subject
to the mandate, but not the shared responsibility payment, will obtain
coverage to comply with the mandate “because they believe in abiding by the
nation’s laws.” Cong. Budget Office, Key Issues in Analyzing Major Health
Insurance Proposals 53 (Dec. 2008). Whether this group of law-abiding citizens
includes “many individuals” or “a small number of people,” Nantz and Hurley
have undisputed evidence showing that they are a part of this group.
In this context, being required to buy something that you otherwise
would not want is clearly within the scope of what counts as a “legally
cognizable injury.” “Economic injury” of this sort is “a quintessential injury
upon which to base standing.” Tex. Democratic Party v. Benkiser, 459 F.3d 582,
586 (5th Cir. 2006); see also Vt. Agency of Nat. Res. v. United States, 529 U.S.
765, 772–77 (1998) (finding Article III injury from financial harm); Clinton v.
New York, 524 U.S. 417, 432 (1998) (same); Sierra Club v. Morton, 405 U.S.
727, 733–34 (1972) (same); DAPA, 809 F.3d at 155 (same). In Benkiser, for
example, we held that a political party would suffer an injury in fact because
it would need to “expend additional funds” in order to comply with the
challenged regulation. 459 F.3d at 586. In the instant case, the undisputed
record evidence shows that the individual plaintiffs have spent “additional
funds” to comply with the statutory provision that they challenge on
constitutional grounds.
This injury, moreover, is “actual,” not merely a speculative fear about
future harm that may or may not happen. Lujan, 504 U.S. at 560. The record
shows that, at the time of the complaint, Hurley and Nantz held health
insurance, spending money every month that they did not want to spend.
Nantz reports that his monthly premium is $266.56, and Hurley says his is
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No. 19-10011
$1,081.70. The injury is also “concrete” because it involves the real
expenditure of those funds. See Barlow v. Collins, 397 U.S. 159, 162–63, 164
(1970) (finding a concrete injury when a regulation caused economic harm from
lost profit).
Causation and redressability “flow naturally” from this concrete,
particularized injury. Contender Farms, 779 F.3d at 266. The evidence in the
record from Hurley’s and Nantz’s declarations show that they would not have
purchased health insurance but for the individual mandate, and the
intervenor-defendant states have no evidence to the contrary. A judgment
declaring that the individual mandate exceeds Congress’ powers under the
Constitution would allow Hurley and Nantz to forgo the purchase of health
insurance that they do not want or need. They could purchase health
insurance below the “minimum essential coverage” threshold, or even decide
not to purchase any health insurance at all.
The intervenor-defendant states make several arguments against this
straightforward injury, and all of them come up short. They first argue that
there is no legally cognizable injury because there is no longer any penalty for
failing to comply. In one sense, this argument misses the point. The threat of
a penalty that Hurley and Nantz would face under the pre-2017 version of the
statute is one potential form of injury, but it is far from the only one. We have
held that the costs of compliance can constitute an injury just as much as the
injuries from failing to comply. See, e.g., Benkiser, 459 F.3d at 586. Thus, in
this instance, it is this injury—the time and money spent complying with the
statute, not the penalty for failing to do so—that constitutes the plaintiffs’
injury.
But the intervenor-defendant states also argue that even the costs of
compliance cannot count as an injury in fact if there is no consequence for
failing to comply. The individual mandate’s compulsion cannot inflict a
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No. 19-10011
cognizable injury, they say, because it is not a compulsion at all. Because the
enforcement mechanism has been removed, the U.S. House contends, it is now
merely a suggestion, at most. We recently rejected this argument in Texas v.
EEOC, when the Equal Employment Opportunity Commission tried to argue
that Texas could not challenge its allegedly non-final administrative guidance
because “the Guidance does not compel Texas to do anything.” 933 F.3d at 448.
We concluded that it would “strain credulity to find that an agency action
targeting current ‘unlawful’ discrimination among state employers—and
declaring presumptively unlawful the very hiring practices employed by state
agencies—does not require action immediately enough to constitute an injury-
in-fact.” 23 Id. The individual mandate is no different. Just like the agency
guidance, the individual mandate targets as “unlawful” the decision to go
without health insurance.
The dissenting opinion grounds its discussion of the issue in the Supreme
Court’s decision in Poe v. Ullman, 367 U.S. 497 (1961). There, the Supreme
Court rejected a challenge to Connecticut’s criminal prohibition on
contraception. The dissenting opinion states that if there was no standing in
Ullman, then there cannot be standing here. The dissenting opinion seems to
treat Ullman as part of the “pre-enforcement challenge” line of cases in which
the Supreme Court analyzed claims of injury based on future enforcement to
determine whether the future enforcement was sufficiently imminent.
Ullman, however, is not cited in the seminal Supreme Court cases of that line.

23 The dissenting opinion states that Texas had standing in Texas v. EEOC because of
the “consequences for disobeying the [challenged] guidance—including the possibility that
the Attorney General would enforce Title VII against it.” This depiction of Texas v. EEOC
ignores that opinion’s emphasis on the fact that Texas was “the object of the Guidance.” 933
F.3d at 446; see also id. (“If, in a suit ‘challenging the legality of government action,’ ‘the
plaintiff is himself an object of the action . . . there is ordinarily little question that the action
or inaction has caused him injury . . . .’” (quoting Lujan, 504 U.S. at 561–62)). As explained
above, the individual plaintiffs in this case are the objects of the individual mandate.
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See, e.g., Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158–61 (2014);
Holder v. Humanitarian Law Project, 561 U.S. 1, 15 (2010); Virginia v. Am.
Booksellers Ass’n, Inc., 484 U.S. 383, 392–93 (1988); Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979); see also Abbott Labs. v.
Gardner, 387 U.S. 136, 154 (1967). More importantly, as we have explained,
this case is not a pre-enforcement challenge because the plaintiffs have already
incurred a financial injury. 24
The plurality opinion in Ullman said there was insufficient adversity
between the parties because there was overwhelming evidence—eighty years’
worth of no enforcement of the statute—of “tacit agreement” between
prosecutors and the public not to enforce the anti-contraceptive laws that the
plaintiffs challenged. 367 U.S. at 507–08. As a result, the Court held that the
lawsuit before it was “not such an adversary case as will be reviewed here.” Id.
The fifth, controlling vote in that case—Justice Brennan, who concurred in the
judgment—emphasized that this adverseness was lacking because of the case’s
“skimpy record,” devoid of evidence that the “individuals [were] truly caught
in an inescapable dilemma.” Id. at 509 (Brennan, J., concurring).
By contrast, as documented above, the record in the instant case contains
undisputed evidence that Nantz and Hurley feel compelled by the individual
mandate to buy insurance and that they bought insurance solely for that

24The dissenting opinion also relies on City of Austin v. Paxton, No. 18-50646, ___ F.3d
___, 2019 WL 6520769 (5th Cir. Dec. 4, 2019). That reliance is confusing because City of
Austin is an Ex parte Young case, not a standing case. For the Ex parte Young exception to
Eleventh Amendment sovereign immunity to apply, the state official sued “must have ‘some
connection with enforcement of the challenged act.’” Id. at *2 (alteration omitted) (quoting
Ex parte Young, 209 U.S. 123, 157 (1908)). In City of Austin, the City’s claims against the
Texas Attorney General failed because the City failed to show the requisite connection to
enforcement under Ex parte Young. Of course, because this is a lawsuit against the federal
government, neither the Eleventh Amendment nor Ex parte Young applies. Moreover, even
if City of Austin had been a pre-enforcement challenge standing case, it would still be
irrelevant because this case is not a pre-enforcement challenge.
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reason. Especially in light of the fact that the individual mandate lacks a
similar eighty-year history of nonenforcement, Nantz and Hurley have gone
much further in demonstrating that they are caught in the “inescapable
dilemma” that the Ullman plaintiffs were not.
The intervenor-defendant states also argue that there is no causation
between the individual mandate and Hurley and Nantz’s purchase of
insurance because Hurley and Nantz exercised a voluntary “choice” to
purchase insurance. Because Nantz and Hurley would face no consequence if
they went without insurance, the intervenor-defendant states argue that their
purchase of insurance is not fairly traceable to the federal defendants. Instead,
they claim that Nantz and Hurley impermissibly attempt to “manufacture
standing merely by inflicting harm on themselves.” Glass v. Paxton, 900 F.3d
233, 239 (5th Cir. 2018) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398,
416 (2013)).
This argument fails, however, because it conflates the merits of the case
with the threshold inquiry of standing. The argument assumes that 26 U.S.C.
§ 5000A presents not a legal command to purchase insurance, but an option
between purchasing insurance and doing nothing. Because this option exists,
the argument goes, any injury arising from Hurley’s and Nantz’s decisions to
buy insurance instead of doing nothing (the other putative option) is entirely
self-inflicted. This, however, is a merits question that can be reached only after
determining the threshold issue of whether plaintiffs have standing.
Texas v. EEOC makes clear that courts cannot fuse the standing inquiry
into the merits in this way. There, in addition to the injury described above
from the Guidance’s rebuke of Texas’s employment practices as “unlawful,”
Texas claimed it was injured by the EEOC’s curtailing of Texas’s procedural
right to notice and comment before being subject to a regulation. EEOC, 933
F.3d at 447. In rejecting the suggestion that Texas was not truly injured
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because the EEOC had not in fact violated the Administrative Procedure Act’s
notice-and-comment rules, we held that “[w]e assume, for purposes of the
standing analysis, that Texas is correct on the merits of its claim that the
Guidance was promulgated in violation of the APA.” Id. (citing Sierra Club v.
EPA, 699 F.3d 530, 533 (D.C. Cir. 2012)); see also Bennett v. Spear, 520 U.S.
154, 177–78 (1997) (treating constitutional standing and finality as distinct
inquiries).
Indeed, allowing a consideration of the merits as part of a jurisdictional
inquiry would conflict with the Supreme Court’s express decision in Steel Co.
v. Citizens for a Better Environment to not abandon “two centuries of
jurisprudence affirming the necessity of determining jurisdiction before
proceeding to the merits.” 523 U.S. 83, 98 (1998). That case presented both
the question of Article III standing and the merits question of whether the
relevant statute authorized lawsuits for purely past violations. Id. at 86. The
Court rejected any “attempt to convert the merits issue . . . into a jurisdictional
one.” Id. at 93. The Court further rejected the “doctrine of hypothetical
jurisdiction,” under which certain courts of appeals had “proceed[ed]
immediately to the merits question, despite jurisdictional objections” in certain
circumstances. Id. at 93–94. As the district court correctly noted, that is
exactly what the appellants ask this court to do. They urge us to “skip ahead
to the merits to determine § 5000A(a) is non-binding and therefore
constitutional and then revert to the standing analysis to use its merits
determination to conclude there was no standing to reach the merits in the
first place.”
Moreover, even if we were to consider the merits as part of our
jurisdictional inquiry, it would not make a difference in this case. Because we
conclude in Part IV of this opinion that the individual mandate is best read as
a command to purchase insurance (and an unconstitutional one at that), rather
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No. 19-10011
than as an option between buying insurance or doing nothing, the individual
plaintiffs would have standing even if we considered the merits. 25
B.
We next consider whether the eighteen state plaintiffs have standing,
and we conclude that they do. 26 The state plaintiffs allege that the ACA causes
them both a fiscal injury as employers and a sovereign injury “because it
prevents them from applying their own laws and policies governing their own
healthcare markets.” State Plaintiffs’ Br. at 25. In DAPA, we determined that
the state of Texas was entitled to special solicitude because it was “exercising
a procedural right created by Congress and protecting a ‘quasi-sovereign’
interest.” DAPA, 809 F.3d at 162 (quoting Massachusetts v. EPA, 549 U.S. 497,
520 (2007)); see also id. at 154–55. Because the state plaintiffs in this case
have suffered fiscal injuries as employers, we need not address special
solicitude or the alleged sovereign injuries.
Employers, including the state plaintiffs, are required by the ACA to
issue forms verifying which employees are covered by minimum essential
coverage and therefore do not need to pay the shared responsibility payment.
See 26 U.S.C. § 6055(a) (“Every person who provides minimum essential
coverage to an individual during a calendar year shall, at such time as the
Secretary may prescribe, make a return described in subsection (b).”); 26
U.S.C. § 6056(a) (“Every applicable large employer [that meets certain

25 Even if the individual plaintiffs did not have standing, this case could still proceed
because the state plaintiffs have standing. DAPA, 809 F.3d at 151 (holding that only one
plaintiff needs standing for the court to exercise jurisdiction). “This circuit follows the rule
that alternative holdings are binding precedent and not obiter dictum.” Id. at 178 n.158
(quoting United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011)).

26Likewise, even if the state plaintiffs did not have standing, this case could still
proceed because the individual plaintiffs have standing. DAPA, 809 F.3d at 151 (holding that
only one plaintiff needs standing for the court to exercise jurisdiction).
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statutory requirements] shall . . . make a return described in subsection (b).”).
These provisions have led to Form 1095-B and 1095-C statements that
employees receive from their employers around tax time, which include a series
of check boxes indicating the months that employees had health coverage that
complies with the ACA. State Plaintiffs’ Br. at 23. These legally required
reporting practices exist on top of state employers’ own in-house
administrative systems for managing and tracking their employees’ health
insurance coverage.
The record is replete with evidence that the individual mandate itself
has increased the cost of printing and processing these forms and of updating
the state employers’ in-house management systems. For example, Thomas
Steckel, the director of the Division of Employee Benefits within the South
Dakota Bureau of Human Resources, submitted a declaration documenting the
administrative costs that the individual mandate has imposed by way of these
reporting requirements. He said, “[t]he individual mandate caused significant
administrative burdens and expenses to program our IT system to track and
report ACA eligible employees and complete mandatory IRS Form 1095 annual
reports.” Steckel noted specifically that “the individual mandate caused . . .
$100,000.00 [in] ongoing costs” for Form 1095-C administration alone. The
dissenting opinion discards this evidence as conclusory. But as even counsel
for the intervenor-defendant states admitted at oral argument, nobody
challenged this evidence as conclusory in the district court or in the appellate
court. 27 Oral Argument at 5:12.
South Dakota is far from the only state that has been harmed from the
financial cost of the reporting requirements that the individual mandate

27The reason why is obvious: the evidence is not conclusory. This is bread-and-butter
summary judgment practice, not, as the dissenting opinion contends, any “new summary-
judgment rule.” Of course, a properly-included affidavit must be based on personal
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aggravates. Judith Muck, the Executive Director of the Missouri Consolidated
Health Care Plan, reported that Missouri’s costs for preparing 1095-B forms,
along with 1094-B forms, are projected to be $47,300 in fiscal year 2019 and
$49,200 in fiscal year 2020. Similarly, Teresa MacCartney, the Chief Financial
Officer of the State of Georgia and the Director of the Georgia Governor’s Office
of Planning and Budget, reported that Georgia’s overall cost of compliance with
the ACA’s reporting requirements “is an estimated net $3.6 million to date.”
MacCartney also reported that after the ACA’s implementation, Georgia’s
Department of Community Health “experienced increased enrollment of
individuals already eligible for Medicaid benefits under pre-ACA eligibility
standards.” This enrollment increase required the Department to enhance its
management systems, which was “very costly.” Blaise Duran, who is the
Manager for Underwriting, Data Analysis and Reporting for the Employees
Retirement System of Texas, further documented Texas’ costs of the reporting
requirements. He declared that the Texas Employees Group Benefits Program
“has made administrative process changes in connection with its ACA

knowledge, and conclusory facts and statements on information and belief cannot be utilized.
See Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure, § 2738 (4th
ed. 2019). The Steckel affidavit easily satisfies this standard: it is a detailed 8-page
declaration. Steckel attested, under penalty of perjury, that he is “responsible for developing
and implementing the State’s health plan for state employees” and that he is “particularly
familiar with changes in costs, plans, and policies related to the enactment of the ACA
because of my role as the Director of the Division [of Employee Benefits].” He estimates the
financial costs the individual mandate has caused in nine different categories, including
ongoing costs of $10,400 for review of denied appeals, ongoing costs of $100,000 for Form
1095-C administration, and a one-time cost of $3,302,942 as a Transitional Reinsurance
Program fee. For other costs, such as the pre-existing conditions prohibition and the
expanded eligibility for adult dependent children to age 26, he conceded that he was “unable
to accurately estimate the ongoing costs of this mandate.” A determination of standing is
supported by the administration of Form 1095-C, the CBO’s prediction that some individuals
will continue to purchase insurance in the absence of a shared responsibility payment, the
fact that two such individuals are before this court, and the Supreme Court’s observation
that “third parties will likely react in predictable ways.” Department of Commerce, 139 S. Ct.
at 2566.
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compliance, such as those related to the provision of Form 1095-Bs to plan
participants and the Internal Revenue Service.” 28
The intervenor-defendant states and the U.S. House have not challenged
the state plaintiffs’ evidence or presented any evidence to the contrary.
Instead, they argue that the reporting requirements set forth in Sections
6055(a) and 6056(a) “are separate from the mandate and serve independent
purposes.” U.S. House Reply Br. at 19. Therefore, they claim, “any resulting
injury is thus neither traceable to Section 5000A nor redressable by its
invalidation.” U.S. House Reply Br. at 19. But this misreads the undisputed
evidence in the record. The individual mandate commands individuals to get
insurance. Every time an individual gets that insurance through a state
employer, the state employer must send the individual a form certifying that
he or she is covered and otherwise process that information through in-house
management systems. 29 Thus, the reporting requirements in Sections 6055(a)
and 6056(a) flow from the individual mandate set forth in Section 5000A(a).

28 This list is not exhaustive. For instance, Arlene Larson, Manager of Federal Health
Programs and Policy for Wisconsin Employee Trust Funds, declared that the state expended
funds by “hir[ing] a vendor to issue 343 Form 1095-Cs” in 2017. And Mike Michael, Director
of the Kansas State Employee Health Plan, averred that reporting for Form 1094 and 1095
cost the state $43,138 in 2017 and $38,048 in 2018. No record evidence indicates that these
reporting requirements have been eliminated. Moreover, the “standing inquiry remains
focused on whether the party invoking jurisdiction had the requisite stake in the outcome
when the suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008).

29 Relying on this injury, therefore, does not run afoul of Nat’l Fed’n of the Blind of
Texas v. Abbott, 647 F.3d 202 (5th Cir. 2011). That case prevents plaintiffs from claiming
injury based on provisions whose enforcement would be enjoined only if they are inseverable
from an unconstitutional provision that does not harm the plaintiff. Id. at 210–11. The state
plaintiffs’ injuries stem from the increased administrative costs created by the individual
mandate itself, not from other provisions. To be sure, those costs are created in part by the
individual mandate’s practical interaction with other ACA provisions, like the reporting
requirements. But this is no different from the injuries in DAPA, where the challenged action
interacted with Texas’s driver’s license regulations. It is also no different from Department
of Commerce, where the challenged census question interacted with constitutional rules tying
political representation to a state’s population.

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These costs to the state plaintiffs are well-established. 30 Moreover, the
continuing nature of these fiscal injuries is consistent with Fifth Circuit and
Supreme Court precedent.
In DAPA, we held that the state of Texas had standing to challenge the
federal government’s DAPA program because it stood to “have a major effect
on the states’ fisc.” 809 F.3d at 152. This was because, if DAPA were permitted
to go into effect, it would have “enable[d] at least 500,000 illegal aliens in
Texas” to satisfy Texas’s requirements that the Department of Public Safety
“‘shall issue’ a license to a qualified applicant,” including noncitizens who
present “documentation issued by the appropriate United States agency that
authorizes the applicant to be in the United States.” Id. at 155 (quoting Tex.
Transp. Code §§ 521.142(a), 521.181). Evidence in the record showed that
Texas, which subsidizes its licenses, would “lose a minimum of $130.89 on each
one it issued to a DAPA beneficiary.” Id. Even a “modest estimate” of

30 The dissenting opinion, citing no authority, contends that the state plaintiffs need
evidence that at least one specific “employee enrolled in one of state plaintiffs’ health
insurance programs solely because of the unenforceable coverage requirement.” We have
already explained why the uncontested affidavits suffice. We note, moreover, that the DAPA
court found that Texas had standing because “it would incur significant costs in issuing
driver’s licenses to DAPA beneficiaries”—without requiring that Texas first show that it had
issued a specific license to a specific illegal alien because of DAPA. Finally, the dissenting
opinion’s rule would create a split with our sister circuits. See Massachusetts v. United States
Dep’t of Health & Human Servs., 923 F.3d 209, 225 (1st Cir. 2019) (“[Massachusetts] need
not point to a specific person who will be harmed in order to establish standing in situations
like this.”); California v. Azar, 911 F.3d 558, 572 (9th Cir. 2018), cert. denied sub nom. Little
Sisters of the Poor Jeanne Jugan Residence v. California, 139 S. Ct. 2716 (2019) (“Appellants
fault the states for failing to identify a specific woman likely to lose coverage. Such
identification is not necessary to establish standing.”); Pennsylvania v. President United
States, 930 F.3d 543, 564 (3d Cir. 2019), as amended (July 18, 2019) (“The Government faults
the States for failing to identify a specific woman who will be affected by the Final Rules, but
the States need not define injury with such a demanding level of particularity to establish
standing.”).

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predictable third-party behavior would rack up costs of “several million
dollars.” Id.
The Supreme Court recently applied a similar analysis in Department of
Commerce v. New York, 139 S. Ct. 2551 (2019). In that case, a group of state
and local governments sued to prevent the federal government from including
a question about citizenship status on the 2020 census. Id. at 2563. The
Supreme Court held that these plaintiffs had standing because they met their
burden “of showing that third parties will likely react in predictable ways to
the citizenship question.” Id. at 2566. The census question would likely lead
to “noncitizen households responding . . . at lower rates than other groups,
which in turn would cause them to be undercounted.” Id. at 2565. This
undercounting of third parties would injure the state and local governments
by “diminishment of political representation, loss of federal funds, degradation
of census data, and diversion of resources.” Id.
In both DAPA and Department of Commerce, the state plaintiffs
demonstrated injury by showing that the challenged law would cause third
parties to behave in predictable ways, which would inflict a financial injury on
the states. The instant case is no different. The individual mandate commands
people to ensure that they have minimum health insurance coverage. That
predictably causes more people to buy insurance, which increases the
administrative costs of the states to report, manage, and track the insurance
coverage of their employees and Medicaid recipients. 31
V.
Having concluded that both groups of plaintiffs have standing to bring
this lawsuit, we must next determine whether the individual mandate is a

31 The dissenting opinion contends that our opinion is inconsistent because we rely on
Department of Commerce, in which the Court found that some individuals will predictably
violate the law, in explaining why some individuals will predictably “follow the law regardless
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constitutional exercise of congressional power. We conclude that it is not. We
first discuss the Supreme Court’s holding in NFIB, and then we explain why,
under that holding, the individual mandate is no longer constitutional.
A.
The NFIB opinion was extremely fractured. In that case, Chief Justice
Roberts wrote an opinion addressing several issues. Parts of that opinion
garnered a majority of votes and served as the opinion of the Court. 32 In
relevant part, Part III-A of the Chief Justice’s opinion, joined by no other
Justice, observed that “[t]he most straightforward reading of the [individual]
mandate is that it commands individuals to purchase insurance,” and that,
using that reading of the statute, the individual mandate is not a valid exercise
of Congress’ power under the Interstate Commerce Clause. NFIB, 567 U.S. at
562, 546–61 (Roberts, C.J.). The Constitution, he explained, “gave Congress
the power to regulate commerce, not to compel it.” Id. at 555 (Roberts, C.J.).
For similar reasons, the Chief Justice concluded that this command to

of the incentives.” In a large group, there will predictably be some individuals in each
category. Even the dissenting opinion accepts the Congressional Budget Office’s projection
that some people will buy insurance solely because of a desire to comply with the law. See
Cong. Budget Office, Repealing the Individual Health Insurance Mandate: An Updated
Estimate 1 (Nov. 2017).

32 As a general overview, Chief Justice Roberts’s opinion functioned in the following
way. In Part III-A, Chief Justice Roberts said that the individual mandate was most
naturally read as a command to buy insurance, which could not be sustained under either
the Interstate Commerce Clause or the Necessary and Proper Clause. Though no Justice
joined this part of the opinion, the four dissenting Justices—Justices Scalia, Kennedy,
Thomas, and Alito—agreed with Part III-A in a separate opinion. In Part III-B, the Chief
Justice wrote that even though the most natural reading of the individual mandate was
unconstitutional, the Court still needed to determine whether it was “fairly possible” to read
the provision in a way that saved it from being unconstitutional. In Part III-C, the Chief
Justice—joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor—concluded that the
provision could be construed as constitutional by reading the individual mandate, in
conjunction with the shared responsibility payment, as a legitimate exercise of Congress’
taxing power. This last part of the opinion supported the Court’s ultimate judgment: that
the individual mandate was constitutional as saved.
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purchase insurance could not be sustained under the Constitution’s Necessary
and Proper Clause. Id. The individual mandate was not “proper” because it
expanded federal power, “vest[ing] Congress with the extraordinary ability to
create the necessary predicate to the exercise of” its Interstate Commerce
Clause powers. Id. at 560.
Though no other Justices joined this part of the Chief Justice’s opinion,
the “joint dissent”—joined by Justices Scalia, Kennedy, Thomas, and Alito—
reached the same conclusions on the Interstate Commerce Clause and
Necessary and Proper Clause questions. Id. at 650–60 (joint dissent). A
majority of the court, therefore, concluded that the individual mandate is not
constitutional under either the Interstate Commerce Clause or the Necessary
and Proper Clause.
This limited reading of the Interstate Commerce Clause—and, by
extension, of the Necessary and Proper Clause—was necessary to preserving
“the country [that] the Framers of our Constitution envisioned.” Id. at 554
(Roberts, C.J.). As Chief Justice Roberts observed, if the individual mandate
were a proper use of the power to regulate interstate commerce, that power
would “justify a mandatory purchase to solve almost any problem.” Id. at 553
(Roberts, C.J.). If Congress can compel the purchase of health insurance today,
it can, for example, micromanage Americans’ day-to-day nutrition choices
tomorrow. Id. (Roberts, C.J.); see also id. at 558 (Roberts, C.J.) (reasoning that,
under an expansive view of the Commerce Clause, nothing would stop the
federal government from compelling the purchase of broccoli).
An expansive reading of the Interstate Commerce Clause would be
foreign to the Framers, who saw the clause as “an addition which few oppose[d]
and from which no apprehensions [were] entertained.” Id. at 554 (Roberts,
C.J.) (quoting The Federalist No. 45, at 293 (J. Madison) (C. Rossiter ed.,
1961)). Elevating Congress’ power to “regulate commerce . . . among the
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several states,” U.S. Const. art. I, § 8, cl. 3, to a power to create commerce
among the several states would make a Leviathan of the federal government,
“everywhere extending the sphere of its activity and drawing all power into its
impetuous vortex.” NFIB, 567 U.S. at 554 (Roberts, C.J.) (quoting The
Federalist No. 48, at 309 (J. Madison) (C. Rossiter ed., 1961)). The joint
dissenters similarly noted that the more expansive reading of the Interstate
Commerce Clause would render that provision a “font of unlimited power,” id.
at 653 (joint dissent), or, in the words of Alexander Hamilton, a “hideous
monster whose devouring jaws . . . spare neither sex nor age, nor high nor low,
nor sacred nor profane,” id. (quoting The Federalist No. 33, at 202 (C. Rossiter
ed., 1961)).
In Part III-B, again joined by no other Justice, Chief Justice Roberts
concluded that because the individual mandate found no constitutional footing
in the Interstate Commerce or Necessary and Proper Clauses, the Supreme
Court was obligated to consider the federal government’s argument that, as an
exercise in constitutional avoidance, the mandate could be read not as a
command but as an option to purchase insurance or pay a tax. This “option”
interpretation of the statute could save the statute from being
unconstitutional, as it would be justified under Congress’ taxing power. Id. at
561–63 (Roberts, C.J.); see also id. at 562 (Roberts, C.J.) (“No court ought,
unless the terms of an act rendered it unavoidable, to give a construction to it
which should involve a violation, however unintentional, of the constitution.”
(quoting Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 448–49 (1830))); see also id.
at 563 (Roberts, C.J.) (“The question is not whether that is the most natural
interpretation of the mandate, but only whether it is a ‘fairly possible’ one.”
(quoting Crowell v. Benson, 285 U.S. 22, 62 (1932))).
In Part III-C, the Chief Justice—writing for a majority of the Court,
joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan—undertook that
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inquiry of determining whether it was “fairly possible” to read the individual
mandate as an option and thereby save its constitutionality. See id. at 563–74
(majority opinion). Chief Justice Roberts reasoned that the individual
mandate could be read in conjunction with the shared responsibility payment
in order to save the individual mandate from unconstitutionality. Read
together with the shared responsibility payment, the entire statutory provision
could be read as a legitimate exercise of Congress’ taxing power for four
reasons.
First and most fundamentally, the shared-responsibility payment
“yield[ed] the essential feature of any tax: It produce[d] at least some revenue
for the Government.” Id. at 564. Second, the shared-responsibility payment
was “paid into the Treasury by taxpayers when they file their tax returns.” Id.
at 563 (alternations and internal quotation marks omitted). Third, the amount
owed under the ACA was “determined by such familiar factors as taxable
income, number of dependents, and joint filing status.” Id. Fourth and finally,
“[t]he requirement to pay [was] found in the Internal Revenue Code and
enforced by the IRS, which . . . collect[ed] it in the same manner as taxes.” Id.
at 563–64 (internal quotation marks omitted).
Because of these four attributes of the shared responsibility payment,
the Court reasoned that “[t]he Federal Government does have the power to
impose a tax on those without health insurance.” Id. at 575. The Court
concluded that “[s]ection 5000A is therefore constitutional, because it can
reasonably be read as a tax.” 33 Id. We agree with the dissenting opinion that
“this case begins and ought to end” with NFIB.

33 Seven Justices—Chief Justice Roberts and Justices Scalia, Kennedy, Thomas,
Breyer, Alito, and Kagan—agreed that the Act’s Medicaid-expansion provisions
unconstitutionally coerced states into compliance. NFIB, 567 U.S. at 575–85 (plurality
opinion); id. at 671–89 (joint dissent). But, in light of a severability clause, Part IV–B of the
Chief Justice’s opinion concluded that the unconstitutional portion of the Medicaid provisions
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B.
Now that the shared responsibility payment amount is set at zero, 34 the
provision’s saving construction is no longer available. The four central
attributes that once saved the statute because it could be read as a tax no
longer exist. Most fundamentally, the provision no longer yields the “essential
feature of any tax” because it does not produce “at least some revenue for the
Government.” Id. at 564. Because the provision no longer produces revenue,
it necessarily lacks the three other characteristics that once rendered the
provision a tax. The shared-responsibility payment is no longer “paid into the
Treasury by taxpayer[s] when they file their tax returns” because the payment
is no longer paid by anyone. Id. at 563 (alteration in original and internal
quotation marks omitted). The payment amount is no longer “determined by
such familiar factors as taxable income, number of dependents, and joint filing
status.” Id. The amount is zero for everyone, without regard to any of these
factors. The IRS no longer collects the payment “in the same manner as taxes”
because the IRS cannot collect it at all. Id. at 563–64 (internal quotation marks
omitted).
Because these four critical attributes are now missing from the shared
responsibility payment, it is, in the words of the state plaintiffs, “no longer
‘fairly possible’ to save the mandate’s constitutionality under Congress’ taxing

could be severed. Id. at 585–88 (plurality opinion). Meanwhile, Justice Ginsburg, joined by
Justice Sotomayor, disagreed that the Act’s mandatory Medicaid expansion was
unconstitutional. Id. at 633 (Ginsburg, J., concurring in the judgment in part, and dissenting
in part). Those two Justices concurred in the judgment with respect to the Chief Justice’s
conclusion that the unconstitutional provisions could be severed from the remainder of the
Act. Id. at 645–46 (Ginsburg, J., concurring in the judgment in part, and dissenting in part).
The four dissenting Justices concluded that the Act’s Medicaid-expansion provisions were
unconstitutionally coercive and rejected the relief of allowing states to opt into Medicaid
expansion. Id. at 671–90 (joint dissent).

34 26 U.S.C. §§ 5000A(c)(2)(B)(iii), (c)(3)(A).
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power.” State Plaintiffs’ Br. at 32. The proper application of NFIB to the new
version of the statute is to interpret it according to what Chief Justice
Roberts—and four other Justices of the Court—said was the “most
straightforward” reading of that provision: a command to purchase insurance.
Id. at 562 (Roberts, C.J.). As the district court properly observed, “the only
reading available is the most natural one.” Under that reading, the individual
mandate is unconstitutional because, under NFIB, it finds no constitutional
footing in either the Interstate Commerce Clause or the Necessary and Proper
Clause. Id. at 546–61 (Roberts, C.J.); id. at 650–60 (joint dissent).
The intervenor-defendant states have several arguments against this
conclusion, all of which fail. They first argue that the saving construction of
the individual mandate, interpreting the provision as an option to buy
insurance or pay a tax, is still “fairly possible.” As the individual plaintiffs
point out, the Court interpreted the individual mandate as an option only
because doing so would save it from being unconstitutional. Accordingly, the
intervenor-defendant states must show that the “option” would still be a
constitutional exercise of Congress’ taxing power. To make that showing, the
intervenor-defendant states reject the plaintiffs’ attempt to read a “some
revenue” requirement into the Constitution’s Taxing and Spending Clause,
arguing instead for a potential-to-produce-revenue requirement. The
individual mandate, they say, is still set out in the Internal Revenue Code. It
still provides a “statutory structure through which” Congress could eventually
tax people for failing to buy insurance. It still includes references to taxable
income, number of dependents, and joint filing status. 26 U.S.C. §§
5000A(b)(3), (c)(2), (c)(4). Further, it still does not apply to individuals who pay
no federal income taxes. 26 U.S.C. § 5000A(e)(2).
The intervenor-defendant states have little support for this reading of
the Taxing and Spending Clause. For starters, NFIB could not be clearer that
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the “produc[tion]” of “at least some revenue for the Government”—not the
potential to produce that revenue—is “the essential feature of any tax.” 567
U.S. at 564 (majority opinion) (emphasis added). As the district court observed,
when determining whether a statute is a tax, the actual production of revenue
is “not indicative, not common—[but] essential.”
The intervenor-defendant states also find no support in United States v.
Ardoin, 19 F.3d 177, 179–80 (5th Cir. 1994). In that unusual case, Congress
had imposed a tax on machine guns, but subsequently outlawed machine guns
altogether, which prompted the relevant agency to stop collecting the tax. Id.
at 179–80. The defendant was convicted not only for possessing a machine gun
but also for failing to pay the tax, which remained on the books. Id. at 178.
The court upheld the conviction on the basis that the tax law at issue could “be
upheld on the preserved, but unused, power to tax or on the power to regulate
interstate commerce.” Id. at 180. But the taxing power was “preserved” in
Ardoin because it was non-revenue-producing only in practice whereas the
“tax” here is actually $0.00 as written on the books. 35 See Fed. Defendants’ Br.
at 32. Expanding Ardoin to apply here would, as the federal defendants point
out, puzzlingly allow Congress to “prohibit conduct that exceeds its commerce
power through a two-step process of first taxing it and then eliminating the tax
while retaining the prohibition.” Fed. Defendants’ Br. at 32.
The intervenor-defendant states argue further that the individual
mandate does not even need constitutional justification because it is merely a
suggestion, not binding legislative action. The individual mandate, they
contend, is no different from the Flag Code, which, though entered into the

35 This distinction also disposes of the intervenor-defendant states’ concern about
“cast[ing] constitutional doubt on taxes with delayed start dates or that Congress has
temporarily suspended for periods of time.” Intervenor-Defendant States’ Br. at 43. In none
of the examples the intervenor-defendant states cite did the statute purport to levy a “tax” of
$0.00.
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pages of the U.S. Code, “was not intended to proscribe conduct.” Dimmitt v.
City of Clearwater, 985 F.2d 1565, 1573 (11th Cir. 1993) (analyzing 36 U.S.C.
§§ 174–76). This argument is just a repackaged version of their argument that
the individual mandate can still be read as an option. But, as the state
plaintiffs, the individual plaintiffs, and the federal defendants point out, the
Supreme Court has already held that the “most straightforward” reading of
the individual mandate—which emphatically demands that individuals “shall”
buy insurance, 26 U.S.C. § 5000A(a)—is as a command to purchase health
insurance. The Court then concluded that that command lacked constitutional
justification. The zeroing out of the shared responsibility payment does not
render the provision any less of a command. Quite the opposite: Chief Justice
Roberts concluded that the greater-than-zero shared responsibility payment
actually converted the individual mandate into an option. NFIB, 567 U.S. at
563–64 (majority opinion). Now that the shared responsibility payment has
been zeroed out, the only logical conclusion under NFIB is to read the
individual mandate as a command, quite unlike the Flag Code. It is an
individual mandate, not an individual suggestion.
Moreover, it is not true that when the Court adopts a limiting
construction to avoid constitutional questions, that construction controls as to
all applications of the statute, regardless of whether the original constitutional
implications are present. The case on which the U.S. House relies involved
different applications of an identical statute to different facts. Clark v.
Martinez, 543 U.S. 371, 380 (2005) (rejecting the argument that “the
constitutional concerns that influenced” a previous interpretation of a
provision of the Immigration and Nationality Act were “not present for” the
aliens at issue in that case). This case is readily distinguishable because the
four characteristics that made the previous interpretation possible—the
production of revenue and other tax-like features—have now been legislatively
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removed. The limiting construction is no longer available as a matter of
statutory interpretation. The interpretation must accordingly change to
comport with what five Justices of the Supreme Court have said is the “most
straightforward reading” of that interpretation. 36
The dissenting opinion justifies its continued reliance on the saving
construction—even though it is no longer applicable—by citing Kimble v.
Marvel Entm’t, LLC, 135 S. Ct. 2401 (2015). This approach fares no better.
The dissenting opinion quotes Kimble to say that “in whatever way reasoned,”
the Court’s interpretation “effectively become[s] part of the statutory scheme,
subject . . . to congressional change.” Id. at 2409. The dissenting opinion
correctly acknowledges that the individual mandate was never changed. But
what did change was the provision that actually mattered: the shared
responsibility payment. When it was set above zero, it could be saved as a tax,
even though five justices agreed this was an unnatural reading. It would be
puzzling if Congress could change a statute at will, entirely insulated from
constitutional infirmity, just because the Court had previously used
constitutional avoidance to save a previous version of the statute.
The intervenor-defendant states argue furthermore that the individual
mandate can now be constitutional under the Interstate Commerce Clause
because it does not compel anyone into commerce. This is again a repackaged
version of their argument that the individual mandate is an option even

36Contrary to the dissenting opinion’s suggestion, a saving construction is no longer
available. The canon of constitutional avoidance applies only “when statutory language is
susceptible of multiple interpretations.” Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018).
In NFIB, § 5000A was amenable to two possible interpretations. It was either “a command
to buy insurance” or “a tax.” NFIB, 567 U.S. at 574 (Roberts, C.J.). After Congress zeroed
out the shared responsibility payment, one of those possible interpretations fell away. What
was then the “most straightforward reading” is now the only available reading: it is a
“command to buy insurance” and “the Commerce Clause does not authorize such a command.”
Id.

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without a revenue-generating shared responsibility payment, an argument
that, as the state plaintiffs point out, the Supreme Court has already rejected.
This argument, as the district court observed, is also logically inconsistent. If
the individual mandate no longer truly compels anything, then it can hardly
be said to be a “regulat[ion]” of interstate commerce. In the words of the
district court, the intervenor-defendant states “hope to have their cake and eat
it too.” 37
Finally, we would be remiss if we did not engage with the dissenting
opinion’s contention that § 5000A is not an exercise of legislative power. This
would likely come as a shock to the legislature that drafted it, the president
who signed it, and the voters who celebrated or lamented it. It is not surprising
that the dissenting opinion can cite no case in which a federal court deems a
duly enacted statute not an exercise of legislative power, much less a statute
that clearly commands that an individual “shall” do something. 38 The
dissenting opinion is inconsistent on this point: it argues that the provision’s
status as an exercise of legislative power fluctuates according to the amount of
the shared responsibility payment while simultaneously contending that “if
the text of the coverage requirement has not changed, its meaning could not

37Any argument that the individual mandate can now be sustained under the
Necessary and Proper Clause fails for the same reasons. The individual mandate now must
be read as a command, and five Justices in NFIB already rejected the argument that such a
command could be sustained under the Necessary and Proper Clause. NFIB, 567 U.S. at 561
(Roberts, C.J.); id. at 654–55 (joint dissent).

38 The dissenting opinion’s theory of the “law that does nothing” results in some
bizarre metaphysical conclusions. The ACA was signed into law in 2010. No one questions
that when it was signed, § 5000A was an exercise of legislative power. Yet today, the
dissenting opinion asserts, § 5000A is not an exercise of legislative power. So did Congress
exercise legislative power in 2010, as seen from 2015? As seen from 2018? Does § 5000A
ontologically re-emerge should a future Congress restore the shared responsibility payment?
Perhaps, like Schrödinger’s cat, § 5000A exists in both states simultaneously. The dissenting
opinion does not say. Our approach requires no such quantum musings.

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have changed either.” Our decision breaks no new ground. We simply observe
that § 5000A was originally cognizable as either a command or a tax. Today,
it is only cognizable as a command. It has always been an exercise of legislative
power.
***
In NFIB, the individual mandate—most naturally read as a command to
purchase insurance—was saved from unconstitutionality because it could be
read together with the shared responsibility payment as an option to purchase
insurance or pay a tax. It could be read this way because the shared
responsibility payment produced revenue. It no longer does so. Therefore, the
most straightforward reading applies: the mandate is a command. Using that
meaning, the individual mandate is unconstitutional.
VI.
Having concluded that the individual mandate is unconstitutional, we
must next determine whether, or how much of, the rest of the ACA is severable
from that constitutional defect. On this question, we remand to the district
court to undertake two tasks: to explain with more precision what provisions
of the post-2017 ACA are indeed inseverable from the individual mandate; and
to consider the federal defendants’ newly-suggested relief of enjoining the
enforcement only of those provisions that injure the plaintiffs or declaring the
Act unconstitutional only as to the plaintiff states and the two individual
plaintiffs. We address each issue in turn.
A.
The Supreme Court has said that the “standard for determining the
severability of an unconstitutional provision is well established.” Alaska
Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). Unless it is “evident that the
Legislature would not have enacted those provisions which are within its
power, independently of that which is not, the invalid part may be dropped if
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what is left is fully operative as a law.” Id. (quoting Buckley v. Valeo, 424 U.S.
1, 108 (1976)).
This inquiry into counterfactual Congressional intent has been
crystallized into a “two-part . . . framework.” NFIB, 567 U.S. at 692 (joint
dissent). First, if a court holds a statutory provision unconstitutional, it then
determines whether the now-truncated statute will operate in “a manner
consistent with the intent of Congress.” Alaska Airlines, 480 U.S. at 685
(emphasis omitted). This first step asks whether the constitutional
provisions—standing on their own, without the unconstitutional provisions—
are “fully operative as a law,” not whether they would simply “operate in some
coherent way” not designed by Congress. Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 561 U.S. 477, 509 (2010) (quoting New York v.
United States, 505 U.S. 144, 186 (1992)); NFIB, 567 U.S. at 692 (joint dissent).
Second, even if the remaining provisions can operate as Congress designed
them to, the court must determine if Congress would have enacted the
remaining provisions without the unconstitutional portion. If Congress would
not have done so, then those provisions must be deemed inseverable. Alaska
Airlines, 480 U.S. at 685 (“[T]he unconstitutional provision must be severed
unless the statute created in its absence is legislation that Congress would not
have enacted.”); Free Enter. Fund, 561 U.S. at 509 (“[N]othing in the statute’s
text or historical context makes it evident that Congress, faced with the
limitations imposed by the Constitution, would have preferred no Board at all

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to a Board whose members are removable at will.” (internal quotation marks
omitted)).
Severability doctrine places courts between a rock and a hard place. On
the one hand, courts strive to be faithful agents of Congress, 39 which often
means refusing to create a hole in a statute in a way that creates legislation
Congress never would have agreed to or passed. See Murphy v. NCAA, 138 S.
Ct. 1461, 1482 (2018) (“[Courts] cannot rewrite a statute and give it an effect
altogether different from that sought by the measure viewed as a whole.”
(quoting R.R. Ret. Bd. v. Alton R.R., 295 U.S. 330, 362 (1935))). On the other
hand, courts often try to abide by the medical practitioner’s maxim of “first, do
no harm,” aiming “to limit the solution to the problem” by “refrain[ing] from
invalidating more of the statute than is necessary.” Ayotte v. Planned
Parenthood of N. New England, 546 U.S. 320, 328 (2006); Collins v. Mnuchin,
938 F.3d 553, 592 (5th Cir. 2019) (en banc) (Haynes, J.) (severing
unconstitutional removal restriction from remainder of Federal Housing
Finance Agency’s enabling statute). 40 In fact, courts have a “duty” to “maintain
the act in so far as it is valid” if it “contains unobjectionable provisions
separable from those found to be unconstitutional.” Alaska Airlines, 480 U.S.
at 684 (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality
opinion)).
The Supreme Court emphasizes this duty so strongly that commentators
have identified “a presumption [of severability] implicit in the Court’s”
severability jurisprudence. Adrian Vermeule, Saving Constructions, 85 Geo.

See Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation,
39

17 Harv. J. L. & Pub. Pol’y 61, 63 (1994) (“[Courts] are supposed to be faithful agents, not
independent principals.”).

40 Judge Haynes wrote the opinion of the court as to the question of remedy. See
Collins, 938 F.3d at 591.
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L.J. 1945, 1950 n.28 (1997); see also Brian Charles Lea, Situational
Severability, 103 Va. L. Rev. 735, 744 (2017) (“[C]ourts assume that a
legislature intends for any unlawful part of its handiwork to be severable from
all lawful parts in the absence of indicia of a contrary intention.”). This
presumption is strongest when Congress includes a severability clause in the
statutory text; however, “[i]n the absence of a severability clause . . . Congress’s
silence is just that—silence—and does not raise a presumption against
severability.” Alaska Airlines, 480 U.S. at 686.
Nevertheless, the meticulous analysis required by severability doctrine
defies reliance on presumptions or generalities. The Supreme Court’s latest
venture into severability territory, Murphy v. NCAA, 138 S. Ct. 1461 (2018),
provides an example. There, the Court held that the entirety of the
Professional and Amateur Sports Protection Act was unconstitutional because
one of its provisions—authorizing private sports gambling—violated the anti-
commandeering doctrine. Id. at 1484. Justice Alito’s majority opinion
separately explored each of the other operative provisions in the act, reasoning
that all of the act’s provisions were “obviously meant to work together” and be
“deployed in tandem.” Id. at 1483. Because Congress would not have wanted
the otherwise-valid provisions “to stand alone,” the Court declined to sever
them. Id. This conclusion prompted a dissent from Justice Ginsburg, who
characterized the majority as “wield[ing] an ax . . . instead of using a scalpel to
trim the statute” and reiterated that “the Court ordinarily engages in a salvage
rather than a demolition operation.” Id. at 1489–90 (Ginsburg, J., dissenting).
These Murphy opinions draw attention to one difficulty inherent in
severability analysis: selecting the right tool for the job. Justice Thomas’
concurring opinion goes further, providing two reasons why navigating
between the Scylla of poking small but critical holes in complex, carefully
crafted legislative bargains and the Charybdis of invalidating more duly
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enacted legislation than necessary stands “in tension with traditional limits on
judicial authority.” Murphy, 138 S. Ct. at 1485 (Thomas, J., concurring).
“[T]he judicial power is, fundamentally, the power to render judgments in
individual cases,” and severability doctrine threatens to violate that vital
separation-of-powers principle in more than one way. Id. (Thomas, J.,
concurring).
First, severability doctrine requires “a nebulous inquiry into
hypothetical congressional intent,” as opposed to the usual judicial bread-and-
butter of “determin[ing] what a statute means.” Id. at 1486 (Thomas, J.,
concurring) (quoting United States v. Booker, 543 U.S. 220 at 321 n.7 (2005)
(Thomas, J., dissenting in part)). Because “Congress typically does not pass
statutes with the expectation that some part will later be deemed
unconstitutional,” id. at 1487, this requirement often leaves courts to exercise
their imagination or “intuitions regarding what the legislature would have
desired had it considered the severability issue.” Lea, supra, at 747. This, in
turn, “enmeshes the judiciary in making policy choices” the Constitution
reserves for the legislature, David H. Gans, Severability as Judicial
Lawmaking, 76 Geo. Wash. L. Rev. 639, 663 (2008), providing unelected
judicial officers with cover to simply implement their own policy preferences.
Second, severability doctrine forces courts to “weigh in on statutory
provisions that no party has standing to challenge, bringing courts
dangerously close to issuing advisory opinions.” Murphy, 138 S. Ct. at 1487
(Thomas, J., concurring); see also Jonathan F. Mitchell, The Writ-of-Erasure
Fallacy, 104 Va. L. Rev. 933, 936 (2018) (“The federal courts have no authority
to erase a duly enacted law from the statute books, [but can only] decline to

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enforce a statute in a particular case or controversy.” 41). As Justice Thomas
points out, when Chief Justice Marshall famously declared that “[i]t is
emphatically the province and duty of the judicial department to say what the
law is,” he justified that assertion by explaining that “[t]hose who apply [a]
rule to particular cases, must of necessity expound and interpret that rule.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Yet severability
doctrine directs courts to go beyond the necessary—that is, the application of
a particular statutory provision to a particular case—to consider the viability
of other provisions without even “ask[ing] whether the plaintiff has standing
to challenge those other provisions.” Murphy, 138 S. Ct. at 1487 (Thomas, J.,
concurring). “[S]everability doctrine is thus an unexplained exception to the
normal rules of standing, as well as the separation-of-powers principles that
those rules protect.” Id.
Severability analysis is at its most demanding in the context of sprawling
(and amended) statutory schemes like the one at issue here. The ACA’s
framework of economic regulations and incentives spans over 900 pages of
legislative text and is divided into ten titles. Most of the provisions directly
regulating health insurance, including the one challenged in this case, are
found in Titles I and II. See, e.g., 26 U.S.C. § 5000A(a) (individual mandate);
42 U.S.C. § 300gg-14(a) (requiring insurers offering family plans to cover adult
children until age 26), §§ 18031–18044 (creating health insurance exchanges).
The other titles generally amend Medicare (Title III), fund preventative
healthcare programs (Title IV), seek to expand the supply of healthcare
workers (Title V), enact anti-fraud requirements for Medicare/Medicaid
facilities (Title VI), establish or expand drug regulations (Title VII), create a

41 If that is true, then courts are speaking loosely when they state that they are
“invalidating” or “striking down” a law.
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voluntary long-term care insurance program (Title VIII), address taxation
(Title IX), and improve health care for Native Americans (Title X 42).
The plaintiffs group this host of provisions into three categories for ease
of reference. State Plaintiffs’ Br. at 38. The first category includes the three
core ACA provisions the Supreme Court has called “closely intertwined”: the
individual mandate, 26 U.S.C. § 5000A(a), the guaranteed-issue requirement,
42 U.S.C. §§ 300gg, 300gg-1, and the community-rating requirement, 42 U.S.C.
§ 300gg-4. King, 135 S. Ct. at 2487. The second category includes the
remaining “[m]ajor provisions of the Affordable Care Act,” NFIB, 567 U.S. at
697 (joint dissent), namely other provisions dealing with “insurance
regulations and taxes,” “reductions in federal reimbursements to hospitals and
other Medicare spending reductions,” the insurance “exchanges and their
federal subsidies,” and “the employer responsibility assessment.” See, e.g., 25
U.S.C. § 4980H; 26 U.S.C. § 36B; 42 U.S.C. §§ 1395ww, 18021–22. The third
category includes a variety of minor provisions, for example taxes on certain
medical devices or provisions requiring the display of nutritional content at
restaurants. See, e.g., 21 U.S.C. § 343(q)(5)(H); 26 U.S.C. § 4191(a).
Moreover, Congress has made a number of substantive amendments to
the ACA, revising the statute in 2010, 2011, 2014, 2017, and 2018. See, e.g.,
Medicare and Medicaid Extenders Act of 2010, Pub. L. No. 111-309, 124 Stat.
3285 (2010) (modifying tax credit scale and Medicaid requirements);
Department of Defense and Full-Year Continuing Appropriations Act, 2011,
Pub. L. No. 112-10, 125 Stat. 38 (2011) (repealing program that required some
employers to provide some employees with vouchers for purchasing insurance);
Bipartisan Budget Act of 2015, Pub. L. No. 114-74, 129 Stat. 584 (2015)

42 Title X also includes a number of miscellaneous provisions relating to the other
titles.
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(repealing requirement that employers with more than 200 employees enroll
new full-time employees in health insurance and continue coverage for current
employees). Most of these amendments occurred prior to the 2017 legislation
eliminating the shared responsibility payment, but some are more recent. See,
e.g., Bipartisan Budget Act of 2018, Pub. L. No. 115-123, 132 Stat. 64 (2018)
(repealing Independent Payment Advisory Board).
In summary, then, this issue involves a challenging legal doctrine
applied to an extensive, complex, and oft-amended statutory scheme. All
together, these observations highlight the need for a careful, granular
approach to carrying out the inherently difficult task of severability analysis
in the specific context of this case. We are not persuaded that the approach to
the severability question set out in the district court opinion satisfies that
need. The district court opinion does not explain with precision how particular
portions of the ACA as it exists post-2017 rise or fall on the constitutionality of
the individual mandate. Instead, the opinion focuses on the 2010 Congress’
labeling of the individual mandate as “essential” to its goal of “creating
effective health insurance markets,” 42 U.S.C. § 18091(2)(I), and then proceeds
to designate the entire ACA inseverable. In using this approach, the opinion
does not address the ACA’s provisions with specificity, nor does it discuss how
the individual mandate fits within the post-2017 regulatory scheme of the
ACA.
The district court opinion begins by addressing the 2010 version of the
ACA. Starting with the text of the ACA, the district court opinion points out
that the 2010 Congress incorporated into the text its view that “the absence of
the [individual mandate] would undercut Federal regulation of the health
insurance market.” 42 U.S.C. § 18091(2)(H). The district court opinion notes
that the 2010 Congress devised the individual mandate, “together with the
other provisions” of the ACA, to “add millions of new customers to the health
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insurance market.” 42 U.S.C. § 18091(2)(C). In this way, the 2010 Congress
sought to “minimize th[e] adverse selection” that might otherwise occur if
healthy individuals “wait[ed] to purchase health insurance until they needed
care,” 42 U.S.C. § 18091(2)(I)—a strategic choice that would otherwise be
available given the ACA’s guaranteed-issue and community-rating provisions.
According to the district court opinion: because the 2010 Congress found the
individuate mandate “essential” to this plan to reshape health insurance
markets, the individual mandate is inseverable from the rest of the ACA “[o]n
the unambiguous enacted text alone.”
The district court opinion also addresses ACA caselaw. Citing the
Supreme Court’s decisions in NFIB and King, the district court opinion states
that “[a]ll nine Justices . . . agreed the Individual Mandate is inseverable from
at least the pre-existing-condition provisions.” See NFIB, 567 U.S. at 548
(Roberts, C.J.), 596–98 (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor,
JJ.), 695–96 (joint dissent of Scalia, Kennedy, Thomas, and Alito, JJ.); King,
135 S. Ct. at 2487 (stating that the individual mandate is “closely intertwined”
with the guaranteed-issue and community-rating provisions). As to the ACA’s
other provisions, the district court opinion notes that the only group of Justices
who fully considered whether the other major and minor provisions were
severable was the joint dissent in NFIB—and those Justices would have held
that “invalidation of the ACA’s major provisions requires the Court to
invalidate the ACA’s other provisions.” NFIB, 567 U.S. at 704 (joint dissent).
Beyond these points, the district court opinion states that its “conclusion
would only be reinforced” if it “parse[d] the ACA’s provisions one by one.” The
district court opinion arrives at this conclusion by reasoning that declaring
only the individual mandate unlawful would disrupt the Act’s careful balance
of “shared responsibility.” The district court opinion lists a few examples of
how it would expect this to happen with regard to the ACA’s major provisions.
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First, the district court opinion reasons that “the Individual Mandate reduces
the financial risk forced upon insurance companies and their customers by the
ACA’s major regulations and taxes.” If the individual mandate fell and the
regulations and taxes did not, insurance companies would suffer a burden
without enjoying a countervailing benefit—“a choice no Congress made and
one contrary to the text.” Second, if a court were to declare just the individual
mandate and the protections for preexisting conditions unlawful—but not the
subsidies for health insurance—then the Act would be transformed into “a law
that subsidizes the kinds of discriminatory products Congress sought to
abolish at, presumably, the re-inflated prices it sought to suppress.” Third,
Congress never intended “a duty on employers, see 26 U.S.C. § 4980H, to cover
the skyrocketing insurance premium costs” that would “inevitably result from
removing” the individual mandate. Fourth, because “the Medicaid-expansion
provisions were designed to serve and assist fulfillment of the Individual
Mandate,” removing the individual mandate would remove the need for that
expansion.
As to the ACA’s minor provisions, the district court opinion states that it
is “impossible to know which minor provisions Congress would have passed
absent the Individual Mandate,” and that such an inquiry involves too much
“legislative guesswork.” Relying on the 2010 Congress’ labeling of the
individual mandate as “essential,” the district court opinion ultimately
determines that there is “no reason to believe that Congress would have
enacted” the minor provisions independently. The district court opinion
similarly disclaims the ability to divine the intent of the 2017 Congress—which
had zeroed out the shared responsibility payment but left the rest of the ACA
untouched—labeling such an inquiry “a fool’s errand.” To the extent it
analyzed the intent of the 2017 Congress, the district court opinion determines
that Congress’ failure to repeal the individual mandate shows that it “knew
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that provision is essential to the ACA.” In sum, the district court opinion
concludes that the entire ACA is inseverable from the individual mandate.
The plaintiffs urge affirmance for essentially the same reasons stated in
the district court opinion. 43 As to the guaranteed-issue and community-rating
provisions, they rely primarily on the 2010 Congress’ express findings linking
those provisions to the individual mandate. State Plaintiffs’ Br. at 39–44;
Individual Plaintiffs’ Br. at 47–48. The 2010 Congress found that, without the
individual mandate, “many individuals would wait to purchase health
insurance until they needed care,” creating an “adverse selection” problem. 42
U.S.C. § 18091(2)(I); see also id. (finding that the individual mandate is
“essential to creating effective health insurance markets in which improved
health insurance products that are guaranteed issue and do not exclude
coverage of pre-existing conditions can be sold”). As to the remaining major
and some of the minor provisions, the plaintiffs rely primarily on the joint
dissent in NFIB for the proposition that leaving these provisions standing
would “undermine Congress’ scheme of shared responsibility,” throwing off the
balance of the interlocking insurance market reforms set out in the ACA. 567
U.S. at 698 (joint dissent) (internal quotation marks omitted); State Plaintiffs’
Br. at 44–49. As for the most minor provisions, they argue that these were
“mere adjuncts” of the more important provisions and would not have been
independently enacted. State Plaintiffs’ Br. at 50.
On appeal, the federal defendants agree with the plaintiffs that the
entirety of the ACA is inseverable from the individual mandate. Fed.
Defendants’ Br. at 36–49. This marks a significant change in litigation
position, as the federal defendants had previously submitted to the district

43 The individual plaintiffs adopt the state plaintiffs’ severability arguments by
reference. See Fed. R. App. P. 28(i).

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court that only the guaranteed-issue and community-rating provisions were
inseverable. And that is not the only new argument the federal defendants
make on appeal. For the first time on appeal, the federal defendants argue
that the remedy in this case should be limited to enjoining enforcement of the
ACA only to the extent it harms the plaintiffs. See Fed. Defendants’ Br. at 26–
29 (arguing that the individual “plaintiffs do not have standing to seek relief
against provisions of the ACA that do not in any way affect them”); Fed.
Defendants’ Supp. Br. at 10 (“[T]he judgment itself, as opposed to its
underlying legal reasoning, cannot be understood as extending beyond the
plaintiff states to invalidate the ACA in the intervenor states.”).
The intervenor-defendant states, meanwhile, argue that every provision
of the ACA is severable from the individual mandate. They argue that the
2017 Congress’ decision not to repeal or otherwise undermine any other
provision of the ACA shows that it intended the rest of the ACA to remain
operative—and that the court should not focus on the intent of the 2010
Congress. Intervenor-Defendant States’ Br. at 34–35, 43. They point to the
statements of several legislators in the 2017 Congress that seem to evince an
assumption that other parts of the ACA would not be altered, 44 and to
Congress’ knowledge of reports highlighting the severe consequences a total

44 Although we decline to opine on the merits of the parties’ arguments at this
juncture, we caution against relying on individual statements by legislators to determine the
meaning of the law. “[L]egislative history is not the law.” Epic Sys. Corp. v. Lewis, 138 S.
Ct. 1612, 1631 (2018); see also Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620, 626 n.9 (5th
Cir. 2013) (“[T]he authoritative statement is the statutory text, not the legislative history or
any other extrinsic material.” (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.
546, 568 (2005))); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 392–93 (2012) (“Each member voting for the bill has a slightly different reason
for doing so. There is no single set of intentions shared

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4471037. Public record. Not legal advice.