Opposition Brief — California, et al., Petitioners v. Texas, et al.
Supreme Court briefFeb 3, 2020
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Nos. 19-840 & 19-841
In the Supreme Court of the United States
T HE S TATES OF C ALIFORNIA , C OLORADO ,
C ONNECTICUT , D ELAWARE , H AWAII , I LLINOIS , I OWA ,
M ASSACHUSETTS , M ICHIGAN , M INNESOTA , N EVADA ,
N EW J ERSEY , N EW Y ORK , N ORTH C AROLINA , O REGON ,
R HODE I SLAND , V ERMONT , V IRGINIA , AND
W ASHINGTON , A NDY B ESHEAR , THE G OVERNOR OF
K ENTUCKY , AND THE D ISTRICT OF C OLUMBIA ,
and
U NITED S TATES H OUSE OF R EPRESENTATIVES ,
Petitioners,
v.
T HE S TATE OF T EXAS , ET AL .
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF IN OPPOSITION
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant
Attorney General
KYLE D. HAWKINS
Solicitor General
Counsel of Record
MATTHEW H. FREDERICK
Deputy Solicitor General
LANORA C. PETTIT
Assistant Solicitor General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Kyle.Hawkins@oag.texas.gov
(512) 936-1700
QUESTIONS PRESENTED
In 2010, Congress commanded almost every American to buy “minimum essential [health-insurance] coverage.” Patient Protection and Affordable Care Act
(“ACA”), Pub. L. No. 111-148, 124 Stat. 119, § 1501(b)
(codified at 26 U.S.C. § 5000A). In 2012, this Court held
that “[t]he Federal Government does not have the power
order people to buy health insurance.” Nat’l Fed’n of Indep. Bus. v. Sebelius (“NFIB”), 567 U.S. 519, 575 (2012).
The Court upheld the law because that mandate was attached to a revenue-producing penalty and thus could
“reasonably be characterized as a tax.” Id. at 574.
In 2017, Congress eliminated that tax. But it left undisturbed both the mandate itself and the ACA’s inseverability clause—that is, the sections of the statute that declare the mandate “essential” to the ACA’s operation. 42
U.S.C. § 18091(2)(I). The questions presented are:
1. Whether at least one respondent has standing to
challenge the constitutionality of Congress’s ongoing
command to buy health insurance.
2. Whether Congress may command Americans to
purchase health insurance in the absence of any revenueproducing penalty for failing to do so.
3. Whether, in light of the 2017 Congress’s decision to
eliminate any penalty yet leave intact both the mandate
and the inseverability clause, any provisions of the ACA
remain operative.
4. Whether the U.S. House has standing to challenge
the Fifth Circuit’s decision. See Va. House of Delegates
v. Bethune-Hill, 139 S. Ct. 1945, 1953 (2019).
(I)
T A B L E O F C O N T E N TS
Page
Questions Presented ....................................................... I
Table of Authorities ......................................................IV
Opinions Below ................................................................ 1
Jurisdiction ....................................................................... 1
Statement ......................................................................... 1
A. Statutory Framework .................................. 2
1.
Individual mandate and penalty .......... 2
2.
Guaranteed issue and community
rating ....................................................... 5
B. NFIB v. Sebelius and the Tax Cuts
and Jobs Act of 2017 ..................................... 7
C. Procedural History ....................................... 8
Summary of Argument ................................................. 10
Reasons to Deny the Petition ...................................... 11
I. The Interlocutory Posture of this Case,
Where the Remedy Is Undecided, Raises
a Strong Presumption Against Granting
Review ..................................................................... 11
II. Petitioners Provide No Reason to Depart
from the Court’s Settled Practice of
Denying Review in Interlocutory Matters......... 15
A. This Court does not need to review
the Fifth Circuit’s standing decision ........ 16
B. The constitutionality of the individual
mandate is not certworthy at this time .... 23
(II)
III
C.
The question of severability is not
ripe for review ............................................. 27
III. Petitioners’ Policy Arguments Also Do
Not Justify Review .............................................. 33
IV. No. 19-841 Should Be Denied Because
the U.S. House Lacks Standing Under
Bethune-Hill ......................................................... 35
Conclusion ............................................................................36
IV
TABLE OF AUTHORITIES
Page(s)
Cases
Abbott v. Veasey,
137 S. Ct. 612 (2017) .................................... passim
Alaska Airlines, Inc. v. Brock,
480 U.S. 678 (1987) .................................. 18, 19, 29
Am. Const. Co. v.
Jacksonville T.& K.W. Ry. Co.,
148 U.S. 372 (1893) .............................................. 11
Ariz. State Legislature v.
Ariz. Indep. Redistricting Comm’n,
135 S. Ct. 2652 (2015) .......................................... 16
Armstrong v. Brown,
768 F.3d 975 (9th Cir. 2014) ................................ 33
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .............................................. 14
Babbitt v. United Farm Workers Nat’l
Union,
442 U.S. 289 (1979) .............................................. 18
Barret Comput. Servs. v. PDA, Inc.,
884 F.3d 214 (5th Cir. 1989) ................................ 21
Bhd. of Locomotive Firemen & Enginemen v.
Bangor & Aroostook R.R. Co.,
389 U.S. 327 (1967) .............................................. 11
Bischoff v. Osceola County,
222 F.3d 874 (11th Cir. 2000) .............................. 21
Block v. Meese,
793 F.2d 1303 (D.C. Cir. 1986) ............................ 17
V
Page(s)
Cases (ctd.):
Cutter v. Wilkinson,
544 U.S. 708 (2005) ........................................ 10, 34
Daimler Chrysler Corp. v. Cuno,
547 U.S. 332 (2006) .............................................. 20
Dames & Moore v. Regan,
453 U.S. 654 (1981) .............................................. 26
Davis v. FEC,
554 U.S. 724 (2008) .............................................. 20
Davis v. United States,
564 U.S. 229 (2011) .............................................. 17
Dep’t of Commerce v. New York,
139 S. Ct. 2551 (2019) ........................ 15, 17, 21, 22
Duke Power Co. v.
Carolina Envt’l Study Grp., Inc.,
438 U.S. 59 (1978) .......................................... 15, 21
Estelle v. Gamble,
429 U.S. 97 (1976) .......................................... 11, 27
Exxon Corp. v. Eagerton,
462 U.S. 176 (1983) .............................................. 28
FW/PBS, Inc. v. City of Dallas,
493 U.S. 215 (1990) .............................................. 28
Gill v. Whitford,
138 S. Ct. 1916 (2018) .................................. passim
Gross v. FBL Fin. Servs.,
557 U.S. 167 (2009) .............................................. 25
Groves v. Slaughter,
40 U.S. (15 Pet.) 449 (1841) ................................. 19
VI
Page(s)
Cases (ctd.):
Guste v. Jackson,
429 U.S. 399 (1977) .............................................. 28
Halbig v. Burwell,
758 F.3d 390 (D.C. Cir. 2014) .........................1-2, 5
Hamilton-Brown Shoe Co. v.
Wolf Bros. & Co.,
240 U.S. 251 (1916) ........................................ 11, 23
Hein v. Freedom from Religion Found.,
551 U.S. 587 (2002) .............................................. 20
In re ATM Fee Antitrust Litig.,
686 F.3d 741 (9th Cir. 2012) .......................... 21, 22
In re Kollock,
165 U.S. 526 (1897) .............................................. 24
Kimble v. Marvel Entm’t, LLC,
135 S. Ct. 2401 (2015) .......................................... 25
Lakewood v. Plain Dealer Pub. Co.,
486 U.S. 750 (1988) .............................................. 28
Lewis v. Casey,
518 U.S. 343 (1996) .............................................. 32
Lucia v. S.E.C.,
138 S. Ct. 2044 (2018) .......................................... 29
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) .............................................. 16
Marchetti v. United Sates,
390 U.S. 39 (1968) ................................................ 24
Massachusetts v. EPA,
549 U.S. 497 (2007) .............................................. 18
VII
Page(s)
Cases (ctd.):
Mazurek v. Armstrong,
520 U.S. 968 (1997) .............................................. 14
Medellin v. Texas,
552 U.S. 491 (2008) .............................................. 26
Moda Health Plan, Inc. v. United States,
No. 18-1028 (U.S.) ................................................ 34
Moreland v. Fed. Bureau of Prisons,
547 U.S. 1106 (2006) ............................................ 13
Mount Soledad Mem’l Ass’n v. Trunk,
567 U.S. 944 (2012) .........................................12-13
Munoz-Mendoza v. Pierce,
711 F.2d 421 (1st Cir. 1983) ................................ 21
Murphy v. NCAA,
138 S. Ct. 1461 (2018) .................................... 28, 29
Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ...................................... passim
O2 Micro Int’l Ltd. v.
Beyond Innovation Tech., Co.,
449 F. App’x 923 (Fed. Cir. 2011) ........................ 33
Planned Parenthood of Se. Penn. v. Casey,
505 U.S. 833 (1992) .............................................. 28
Ret. Plans. Comm. of IBM v. Jander,
No. 18-1165, 2020 WL 201024
(U.S. Jan. 14, 2020) ............................ 10, 11, 28, 34
Reynolds v. Sims,
377 U.S. 533 (1964) .............................................. 32
VIII
Page(s)
Cases (ctd.):
Rumsfeld v. Forum for Acad. & Inst.
Rights, Inc.,
547 U.S. 47 (2006) ................................................ 17
Sanford Health Plan v. United States,
No. 18-136C (Ct. Fed. Cl.) .................................... 34
Sonzinsky v. United States,
300 U.S. 506 (1937) .............................................. 24
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) .............................................. 18
Texas v. Rettig,
No. 18-10545 (5th Cir.) ........................................ 34
Texas v. United States,
497 F.3d 491 (5th Cir. 2007) ................................ 17
Texas v. United States,
809 F.3d 134 (5th Cir. 2015),
aff’d by an equally divided Court,
136 S. Ct. 2271 (2016) .......................................... 18
Trump v. Int’l Refugee Assistance
Project,
137 S. Ct. 2080 (2017) .......................................... 32
Trump v. Pennsylvania,
No. 19-454 (U.S.) .................................................. 34
United Mine Workers v. Gibbs,
383 U.S. 715 (1966) .............................................. 20
United States v. Johnston,
268 U.S. 220 (1925) .............................................. 22
United States v. Kahriger,
345 U.S. 22 (1953) ................................................ 24
IX
Page(s)
Cases (ctd.):
United States v. Morrison,
529 U.S. 598 (2000) .........................................25-26
United States v. Students Challenging
Regulatory Agency Procedures,
412 U.S. 669 (1973) ........................................ 17, 22
United States v. Windsor,
570 U.S. 744 (2013) ................................... 18, 19-20
Veasey v. Abbott,
888 F.3d 792 (5th Cir. 2018) ................................ 13
Va. House of Delegates v. Bethune-Hill,
139 S. Ct. 1945 (2019) .................................. I, 1, 35
Va. Military Inst. v. United States,
508 U.S. 946 (1993) ........................................ 12, 13
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) .............................................. 14
Ware v. Hylton,
3 U.S. (3 Dall.) 199 (1796) ................................... 19
Will v. Hallock,
546 U.S. 345 (2006) .............................................. 14
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008) ............................................ 33
Wrotten v. New York,
560 U.S. 959 (2010) .............................................. 13
X
Page(s)
Statutes
26 U.S.C.
§ 36B ....................................................................... 5
§ 2056(a) ............................................................... 19
§ 4980H ................................................................... 4
§ 5000A ......................................................... passim
§ 5000A(a) ..................................................... 2, 3, 18
§ 5000A(b) ............................................................... 3
§ 5000A(b)(1) .......................................................... 3
§ 5000A(c) ............................................................... 5
§ 5000A(e)(1) ........................................................... 4
§§ 5000A(e)(1)-(5) ................................................... 3
§§ 5000A(f)(1)(A)(i)-(iii) .......................................... 4
§ 6056 ...................................................................... 5
28 U.S.C.
§ 1254 ...................................................................... 1
§1738C .................................................................. 19
42 U.S.C.
§ 300gg .................................................................... 5
§ 300gg-1 ................................................................. 5
§§ 300gg to gg-4 ...................................................... 5
§ 300gg-4(a) ............................................................ 5
§ 300gg-15 ............................................................... 5
§ 1396a(k)(1) ........................................................... 4
§ 1396u-7(b)(1) ....................................................... 4
§ 1396u-7(b)(5) ....................................................... 4
§ 18081 .................................................................... 5
§ 18091 .................................................................. 30
§ 18091(2)(A) .......................................................... 4
§ 18091(2)(D) .......................................................... 1
XI
Page(s)
Statutes (ctd.):
42 U.S.C. (ctd.)
§ 18091(2)(F) .................................................. 1, 4, 5
§ 18091(2)(I).................................................. passim
§ 18091(2)(H) .......................................................... 7
§§ 18091(2)(H)-(J) ................................................... 2
§ 18091(2)(J) ........................................................... 6
Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119
§ 1001.................................................................... 34
§ 1342.................................................................... 34
§ 1401.................................................................... 34
§ 1412.................................................................... 34
§ 1501(b) ................................................................. I
§ 9010.................................................................... 34
Tax Cut and Jobs Act of 2017 (TCJA),
Pub. L. No. 115-97, 131 Stat. 2054,
2092, § 11081 (2017)........................................... 2, 7
Other Authorities
Annie L. Mach & Janet Kinzer, Congressional
Research Service, Legislative Actions to
Modify the Affordable Care Act in the
111th-115th Congresses (June 27, 2018),
https://fas.org/sgp/crs/misc/R45244.pdf ............... 33
Br. for Fed. Gov’t on Severability, NFIB
v. Sebelius, 567 U.S. 519 (2012) .................. 6, 9, 31
Br. of States of Indiana, et al. as Amici Curiae,
Abbott v. Veasey, 137 S. Ct. 612 (2017) ............... 12
XII
Page(s)
Other Authorities (ctd.):
CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE
(4th ed. 2008)........................................................ 20
CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE
(3d ed. 1999) ......................................................... 32
CONGRESSIONAL BUDGET OFFICE, KEY
ISSUES IN ANALYZING MAJOR HEALTH
INSURANCE PROPOSALS (Dec. 2008),
https://tinyurl.com/CBO2008Report............ 3, 4, 31
DEP’T OF TREASURY, FY18 FINANCIAL
REPORT OF THE UNITED STATES
GOVERNMENT (2019) .......................................... ...24
“Efforts to Repeal the Patient Protection and
Affordable Care Act,” Wikipedia,
https://en.wikipedia.org/wiki/Efforts_to_r
epeal_ the_Patient_Protection_and_
Affordable_Care_Act. ........................................... 34
John Harrison, Severability, Remedies,
and Constitutional Adjudication,
83 GEO. WASH. L. REV. 56 (2014) ......................... 28
Jonathan Mitchell, The Writ-of-Erasure
Fallacy, 104 VA. L. REV. 933 (2018)..................... 25
Restore Healthcare Freedom,” Chip for
Congress 2020, https://chiproy.com/issues/ ......... 34
Robert Pearl, Healthcare Promises: What
2020 Presidential Candidates Aren’t
Telling You, FORBES, Aug. 26, 2019 ...............13-14
XIII
Page(s)
Other Authorities (ctd.):
STEPHEN M. SHAPIRO ET AL., SUPREME
COURT PRACTICE (10th ed. 2013) ................... 14, 22
THE FEDERALIST No. 37, (Madison)
(Clinton Rossiter, ed., 1961) ...........................24-25
Timothy S. Jost, 2018: The Year of
Renewed Affordable Care Act
Litigation, Jan. 9, 2019,
https://www.commonwealthfund.org/
blog/2019/ 2018-year-renewedaffordable-care-act-litigation ............................... 34
William J. Brennan, Jr., Some Thoughts
on the Supreme Court’s Workload,
66 JUDICATURE 230 (1983) ................................... 13
OPINIONS BELOW
The court of appeals has revised its opinion twice to
correct technical errors. The operative version is published at 945 F.3d 355 (App. 1a-113a). This opposition will
refer to petitioner’s appendix filed in California v.
Texas, No. 19-840, to avoid confusion. The relevant orders of the district court are reported at 340 F. Supp. 3d
579 (App. 163a-231a) and 352 F. Supp. 3d 665 (App. 117a–
62a).
JURISDICTION
State petitioners have invoked the jurisdiction of this
Court under 28 U.S.C. § 1254.
The U.S. House, as one house of a bicameral legislature, lacks standing to independently petition this Court
to defend a legislative enactment. Bethune-Hill, 139 S.
Ct. at 1953-54. Therefore, the U.S. House has not
properly invoked the jurisdiction of this Court. This is an
independent reason to deny review in No. 19-841. See id.
STATEMENT
In 2010, Congress passed the ACA to achieve three
express statutory goals: (1) “near-universal [health-insurance] coverage,” (2) “lower health[-]insurance premiums,” and (3) “creat[ion] [of] effective health[-]insurance
markets.” 42 U.S.C. § 18091(2)(D), (F), (I). To achieve
these goals, Congress created a complex latticework of
“closely interrelated” provisions resting on three key
features. NFIB, 567 U.S. at 691 (Scalia, J., dissenting).
Those features, which the D.C. Circuit referred to as a
“three-legged stool,” Halbig v. Burwell, 758 F.3d 390,
(1)
2
409 (D.C. Cir. 2014), vacated on other grounds, No. 145018, 2014 WL 4627181 (D.C. Cir. Sept. 4, 2014), were:
(1) a requirement that Americans buy minimum essential health-insurance, known as the “individual mandate;” (2) a guaranteed-issue provision; and (3) a community-rating provision. Id. In 2017, Congress eliminated
the penalty for failing to maintain minimum-essential
coverage—yet kept the mandate itself intact, along with
statutory language declaring the mandate “essential” to
the law’s operation. 42 U.S.C. §§ 18091(2)(H)-(J).1 By removing the tax that permitted this Court’s saving construction, Congress rendered the individual mandate unconstitutional.
A. Statutory Framework
As relevant here, the ACA has four core and “closely
interrelated” features. See NFIB, 567 U.S. at 691 (dissenting op.). Those provisions are the individual mandate, the accompanying tax penalty, the guaranteed-issue provision, and the community-rating provision.
1.
Individual mandate and penalty
At the heart of the ACA is what is referred to as the
individual mandate and its accompanying tax penalty,
enforceable against those who do not comply with it. The
text provides: “An applicable individual shall . . . ensure
that the individual . . . is covered under minimum essential coverage.” 26 U.S.C. § 5000A(a). The statutory title
of this subsection reiterates that it imposes a
Tax Cut and Jobs Act of 2017 (“TCJA”), Pub. L. No. 115-97,
131 Stat. 2054, 2092, § 11081 (2017).
1
3
“[r]equirement” on applicable individuals “to maintain
minimum essential coverage.” Id. (capitalization altered).
Subsection (b) imposes a tax penalty on many “applicable individual[s]” who fail to comply with the individual
mandate. Id. § 5000A(b). Congress titled this tax penalty
a “Shared [R]esponsibility [P]ayment,” id., providing:
“If a taxpayer who is an applicable individual . . . fails to
meet the requirement of subsection (a) . . . then . . . there
is hereby imposed on the taxpayer a penalty with respect
to such failure[].” Id. § 5000A(b)(1).
Some individuals who are bound by the mandate’s
command are nonetheless exempt from any tax penalty.
See id. §§ 5000A(e)(1)-(5). Five classes of people, including the poor and members of “an Indian tribe,” fall into
this category. Id. These individuals must obtain “minimum essential coverage” in order to “comply with [the]
mandate, even in the absence of penalties.” CONGRESSIONAL BUDGET OFFICE, KEY ISSUES IN ANALYZING MAJOR HEALTH INSURANCE PROPOSALS 53 (Dec. 2008),
https://tinyurl.com/CBO2008Report (“CBO 2008 REPORT”).
Congress’s reason for subjecting many individuals to
the mandate, but not to the tax penalty, was sensible: for
many people, especially the poor, imposing a tax penalty
would be unjust. Nevertheless, Congress still wanted to
require those individuals to sign up for ACA-compliant
health insurance. A core purpose of the ACA was to prevent the emergency-room cost-shifting problem—where
individuals without health insurance obtain uncompensated care in an emergency room, inevitably requiring
medical providers to increase costs for insured persons.
4
See 42 U.S.C. §§ 18091(2)(A), (F), (I). So Congress mandated that those individuals obtain coverage, offered
them the means to satisfy the mandate through the Medicaid system, 26 U.S.C. §§ 5000A(f)(1)(A)(i)-(iii), but then
exempted them from the tax penalty if they nevertheless
failed to comply with the mandate, id. § 5000A(e)(1). This
tracked a CBO recommendation, which found that
“[m]any individuals” who are subject to the mandate, but
are not subject to the penalty, will obtain coverage because of the mandate “because they believe in abiding by
the nation’s laws.” CBO 2008 REPORT at 53.
The financial penalty for failing to maintain health insurance is not the only consideration that gives the mandate teeth. In 2008, the CBO identified at least three major factors that would ensure compliance with the mandate to buy insurance: (1) “personal values” and “social
norms” that lead “[m]any individuals and employers [to]
comply . . . because they believe in abiding by the nation’s
laws;” (2) provisions that make compliance easier, such
as subsidies and exemptions; and (3) penalties for noncompliance. Id. at 50-53.
Congress took advantage of all three. In addition to
ever-present social norms, Congress built numerous provisions of the ACA to effectuate the minimum-essentialcoverage requirement. For example, Congress obliged
States to provide what it defined as minimum-essential
care in their Medicaid programs, 42 U.S.C. § 1396a(k)(1)
(incorporating the standard through 42 U.S.C. §§ 1396u7(b)(1), (5)), and employers to provide insurance to employees, 26 U.S.C. § 4980H. Congress used the minimum-essential-coverage requirement to define insurance companies’ disclosure obligations to their
5
customers, 42 U.S.C. § 300gg-15, and employers’ disclosure obligations to the IRS, 26 U.S.C. § 6056. And it used
the same requirement to trigger individuals’ ability to access public insurance exchanges, 42 U.S.C. § 18081; their
right to receive public subsidies to buy insurance, 26
U.S.C. § 36B; and their obligation to pay a tax penalty if
they chose not to do so, id. § 5000A(c). In 2010, Congress
found that the insurance “requirement, together with
the[s]e other provisions of the Act” would lead to universal healthcare coverage and lower health-insurance premiums. 42 U.S.C. § 18091(2)(F).
2.
Guaranteed issue and community rating
The ACA imposes voluminous regulations on healthinsurance companies, with the most prominent being
“guaranteed issue” and “community rating” requirements. See id. §§ 300gg to gg-4. The guaranteed-issue
provision mandates that health-insurance companies
“accept every employer and individual in the State that
applies for . . . coverage,” regardless of preexisting conditions. Id. § 300gg-1. The community-rating provision
prohibits health insurers from charging higher rates to
individuals within a given geographic area on the basis of
their age, sex, health status, or other factors. See id.
§§ 300gg, 300gg-4(a).
Together with the individual mandate, the guaranteed-issue and community-rating provisions form what
the D.C. Circuit called a “three-legged stool[:] remove
any one, and the ACA will collapse.” Halbig, 758 F.3d at
409. Indeed, the ACA’s text itself states that “[t]he requirement [to buy health insurance] is essential to creating effective health[-]insurance markets in which
6
improved health[-]insurance products that are guaranteed issue and do not exclude coverage of pre-existing
conditions can be sold.” 42 U.S.C. § 18091(2)(I). As the
United States conceded in NFIB, “the minimum[-]coverage provision is necessary to make effective the Act’s
guaranteed-issue and community-rating insurance market reforms.” Br. for Fed. Gov’t on Severability 26,
NFIB v. Sebelius, 567 U.S. 519 (2012) (“NFIB Br.”). The
government explained that “Congress’s findings expressly state that enforcement of [community and guaranteed issue] without a minimum[-]coverage provision
would restrict the availability of health insurance and
make it less affordable—the opposite of Congress’s goals
in enacting the Affordable Care Act.” Id. at 44-45. This
outcome would result because, “in a market with guaranteed issue and community rating, but without a minimum[-]coverage provision, ‘many individuals would wait
to purchase health insurance until they needed care.’” Id.
at 45 (quoting 42 U.S.C. § 18091(2)(I)).
This “adverse selection” problem would cause premiums to “go up, further impeding entry into the market
by those currently without acute medical needs, risking
a ‘marketwide adverse-selection death spiral.’” Id. at 46;
42 U.S.C. § 18091(2)(J). This hazard is why Congress
“twice described” minimum coverage “as ‘essential’” to
“the guaranteed-issue and community-rating reforms”
in the ACA’s text. NFIB Br. 46-47. In sum, “without a
minimum[-]coverage provision, the guaranteed-issue
and community-rating provisions would drive up costs
and reduce coverage, the opposite of Congress’s goals.”
Id. at 26.
7
B. NFIB v. Sebelius and the Tax Cut and Jobs Act of
2017
In 2012, before the mandate went into effect, this
Court considered whether the Constitution grants Congress power to require individuals to buy insurance in
light of Congress’s conclusion that “the absence of [such
a] requirement would undercut federal regulation of the
health[-]insurance market.” 42 U.S.C. § 18091(2)(H). The
Court concluded that Congress could not do so as an exercise of its power to regulate interstate commerce.
Though Congress may regulate the insurance market,
the Court held, Congress may not “create the necessary
predicate to the exercise of an enumerated power.”
NFIB, 567 U.S. at 560. Cognizant of its “duty to construe
a statute to save it, if fairly possible,” however, the Court
upheld the minimum-essential-coverage requirement as
a trigger for a tax, namely section 5000A’s penalty. Id. at
574-75.
In 2017, Congress “eliminat[ed],” TCJA § 11081 (capitalization altered), this Court’s statutory “basis to adopt
such a saving construction,” NFIB, 567 U.S. at 575.
TCJA § 11081 reduced the operative parts of section 5000A(c)’s tax penalty to “[z]ero percent” and “$0.”
As petitioners acknowledge, the TCJA left “every
other provision of the ACA in place,” including the mandate and the inseverability clause labeling that mandate
“essential.” States Pet. 2; cf. House Pet. 31. Specifically,
Congress preserved all of its earlier findings that the individual mandate “is an essential part of [the Government’s] regulation of economic activity.” 42 U.S.C.
§ 18091(2)(H).
8
As it stands today, the U.S. Code includes the following: (1) a naked command to the American people to buy
insurance, (2) a penalty provision for failure to comply
that raises no revenue, and (3) Congress’s textual declarations that the individual mandate remains “essential”
to the operation of the law.
C. Procedural History
The two individual and eighteen state respondents
who brought this suit are among the many individuals
and employers who continue to obey the law. The operative complaint documents the various harms they are
suffering as a result. ROA.518-29.2 They have pleaded
five claims because the ACA, as amended, “forces an unconstitutional and irrational regime on the States and
their citizens.” ROA.504; ROA.530-35. Because the
United States agrees that the minimum-essential-coverage requirement is unconstitutional, state petitioners intervened to defend the law. ROA.220-56, 946-52.
In December 2018, the district court granted respondents’ claim for a declaratory judgment that the individual mandate is unconstitutional and the rest of the
ACA inseverable. App. 163a-231a. The court concluded
that individual respondents have standing because they
“are the object of the Individual Mandate” and have been
financially harmed by buying insurance. Id. 181a-85a.
(Because Article III requires only one party to have
standing, the district court did not address state respondents’ standing. App. 184a-85a.)
ROA refers to the record on appeal in Texas v. United States,
No. 19-10011 (5th Cir.).
2
9
On the merits, the court concluded that the individual
mandate was unconstitutional because the saving construction adopted by NFIB was no longer fairly permissible after the TCJA. App. 185a-204a. As to remedy, the
court noted that respondents (individual, state, and federal) “agree[d] . . . that the guaranteed-issue and community-rating provisions . . . are inseverable” from the individual mandate. Id. 204a.3 The court issued a declaration
that the remainder of the ACA was inseverable from the
requirement as well. Id. 204a-05a. At the request of the
state petitioners, ROA.2674-2706, the district court entered a partial judgment to allow immediate appeal and
stayed litigation regarding respondents’ remaining
claims pending the outcome, App. 117a-62a.
The Fifth Circuit affirmed on everything except remedy. In particular, the Fifth Circuit agreed that individual respondents have standing, id. 32a, and that the individual mandate is unconstitutional, id. 52a. The court
further concluded that state respondents have standing
based on “fiscal injuries as employers.” Id. 32a-33a.
Without reaching whether the mandate injured States’
sovereign right to enforce their own laws, the Fifth Circuit concluded that “[t]he record is replete with evidence
that the individual mandate itself has increased” states
respondents’ compliance costs, which satisfies Article
III. Id. 33a-34a & n.28.
The Fifth Circuit declined to affirm, however, the district court’s conclusion that the remainder of the ACA is
inseverable from the unconstitutional mandate. The
The ACA’s defenders took the same position in 2012. NFIB
Br. 44-54.
3
10
court noted that the United States “ha[d] shifted their
position on [severability and remedy] more than once.”
Id. 13a. At oral argument, the United States argued that
under Gill v. Whitford, 138 S. Ct. 1916 (2018), remand
was necessary because the remedy “should only reach
ACA provisions that injure” respondents. App. 71a. Because this remedial argument “came as a surprise” to
state respondents, the Fifth Circuit ordered the district
court to consider this new argument—including whether
it was “timely raised”—in the first instance. Id.
SUMMARY OF ARGUMENT
This case comes to this Court in an interlocutory posture that leaves it unripe for review at this time. Where,
as here, a court of appeals resolves the merits of an appeal but not the remedy, and remands to the district
court to enter an appropriate remedial order, this
Court’s practice is to deny review. Abbott v. Veasey, 137
S. Ct. 612, 613 (2017) (Roberts, C.J., respecting the denial of certiorari).
Not one of the three questions presented in these
petitions justifies deviation from that rule. While the
Fifth Circuit’s resolution of standing and the question
of the mandate’s unconstitutionality is now complete,
there is no operative remedy in place. Because this is
a “court of review, not of first view,” which does not
address questions in the first instance, it should deny
review. Ret. Plans. Comm. of IBM v. Jander, No. 181165, 2020 WL 201024, at *2 (U.S. Jan. 14, 2020) (per
curiam) (quoting Cutter v. Wilkinson, 544 U.S. 708,
718 n.7 (2005)). This Court applies that well-established principle even where “the argument before [it]
11
involves a pure question of law.” Id. at *3 (Gorsuch, J.,
concurring). It should do the same here.
REASONS TO DENY THE PETITION
I.
The Interlocutory Posture of this Case, Where the
Remedy Is Undecided, Raises a Strong Presumption Against Granting Review.
A.1. For more than a century, it has been this Court’s
“normal practice [to] deny[] interlocutory review,” even
where cases present significant statutory or constitutional questions. Estelle v. Gamble, 429 U.S. 97, 114-15
(1976) (Stevens, J., dissenting) (criticizing deviation to
address novel Eighth Amendment claims as “inexplicable”). Indeed, this Court has stated that lack of finality
“alone [can] furnish[] sufficient ground for the denial of
[an] application.” Hamilton-Brown Shoe Co. v. Wolf
Bros. & Co., 240 U.S. 251, 258 (1916). Because this
Court’s “power [sh]ould seldom be exercised before final
judgment in the circuit court of appeals,” the circumstances when it should grant interlocutory review are
“very rare[] indeed.” Am. Const. Co. v. Jacksonville T.&
K.W. Ry. Co., 148 U.S. 372, 385 (1893); see also Bhd. of
Locomotive Firemen & Enginemen v. Bangor &
Aroostook R.R. Co., 389 U.S. 327, 328 (1967) (per curiam)
(where “the Court of Appeals remand[s] the case” for
further consideration, the case is “not yet ripe for review
by this Court”).
The Chief Justice perhaps best articulated this
Court’s policy when it comes to interlocutory decisions in
Abbott v. Veasey. There, the en banc Fifth Circuit affirmed the district court’s conclusion that Texas’s voter
ID law violated section 2 of the Voting Rights Act and
12
remanded “for further proceedings on an appropriate
remedy.” 137 S. Ct. at 613 (Roberts, C.J.). Texas sought
immediate review in this Court. Id. The Chief Justice explained that the denial was warranted because “the District Court has yet to enter a final remedial order.” Id.
The proper course, he wrote, is to defer review until “after entry of final judgment,” because “[t]he issues will be
better suited for certiorari review at that time.” Id.
That practice has been restated time and again, and
it applies even in cases of national import. For example,
the validity of the voter ID laws at issue in Abbott surely
carried nationwide importance to the nearly three dozen
States with similar laws—yet this Court denied review.
See id.; Br. of States of Indiana, et al. as Amici Curiae at
1, Abbott, 137 S. Ct. 612.
Or consider Virginia Military Institute v. United
States (“VMI”), 508 U.S. 946, 946 (1993) (Scalia, J., respecting the denial of certiorari). There, this Court refused to consider the Fourth Circuit’s ruling that VMI’s
admission policies violated female students’ fundamental
right to equal protection because the circuit court had
“expressly declined to rule” on the appropriate remedy.
Id. The question was indubitably important, and immediate review could have provided certainty, obviated the
need for years of litigation, and ensured that the question “receive[d] the attention of this Court before, rather
than after” a venerable institution was “compelled to
transform itself.” Id. Nevertheless, Justice Scalia explained, it was “prudent” to wait. Id. There would be time
enough later to review the merits decision once the lower
courts had fashioned a remedy. Id.; see also, e.g., Mount
Soledad Mem’l Ass’n v. Trunk, 567 U.S. 944 (2012)
13
(Alito, J., respecting the denial of certiorari); Wrotten v.
New York, 560 U.S. 959 (2010) (Sotomayor, J.) (same)
(citing Moreland v. Fed. Bureau of Prisons, 547 U.S.
1106, 1107 (2006) (Stevens, J.) (same)).
This prudential rule serves a highly salutary purpose.
Justice Brennan once observed that “we have made mistakes in granting certiorari at an interlocutory stage in a
case,” because litigation is inherently unpredictable, and
later developments may change the character of the
question presented. William J. Brennan, Jr., Some
Thoughts on the Supreme Court’s Workload, 66 JUDICATURE 230, 231-32 (1983). At this time, “it remains unclear
precisely what action the Federal Government will be required to take” to remedy respondents’ injuries. Mount
Soledad Mem’l Ass’n, 567 U.S. at 944 (Alito, J.). The
lower courts’ assessment of those issues may (or may
not) significantly narrow those disputes. Under such circumstances, it would be “prudent,” VMI, 508 U.S. at 946
(Scalia, J.), to wait until the Court “ha[s] the benefit of
the [lower] court’s full consideration,” Wrotten, 560 U.S.
at 959 (Sotomayor, J.).4
Abbott proves that Justice Brennan’s observations were correct. That case never returned to this Court because the Texas
Legislature amended the voter ID law at issue. Veasey v. Abbott, 888 F.3d 792, 795 (5th Cir. 2018) (“This appeal by the
state of Texas follows remand from the en banc court concerning the state’s former photo voter ID law (‘S 14’). During the
remand, the Texas legislature passed a law designed to cure
all the flaws cited in evidence when the case was first tried.
The legislature succeeded in its goal.”). Had the Court taken
up the case in an interlocutory posture, it would have done so
unnecessarily. The same could be true here. See, e.g., Robert
Pearl, Healthcare Promises: What 2020 Presidential
4
14
2. To be sure, this Court has recognized a small set of
“extraordinary cases” where the Court departs from its
settled practice. STEPHEN M. SHAPIRO ET AL., SUPREME
COURT PRACTICE 283 (10th ed. 2013). Those cases involve situations where “the lower court’s decision is patently incorrect and the interlocutory decision . . . will
have immediate consequences on the petitioner.” Id.
(emphasis added) (collecting cases). That narrow test is
met in situations where the circuit court’s decision implicates a matter that is “effectively unreviewable” if the
Court were to wait until final judgment. Will v. Hallock,
546 U.S. 345, 351-52 (2006) (addressing related collateral-order doctrine).
The cases that meet that exception can involve questions of a sovereign’s or public official’s immunity from
suit that would be lost if the Court were to wait until final
judgment. E.g., Ashcroft v. Iqbal, 556 U.S. 662, 671-72
(2009). Or the Court may hear a case involving class certification where an adverse decision leads to such in terrorem pressure to settle that it is unlikely any case presenting the issue will ever reach final judgment. E.g.,
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Or
the Court may hear a case where a burdensome preliminary injunction will cause the petitioner concrete, irreparable harm during the pendency of the litigation. E.g.,
Mazurek v. Armstrong, 520 U.S. 968, 975-76 (1997).
B. That settled practice compels the Court to deny
review here. As in Abbott, the Fifth Circuit has resolved
Candidates Aren’t Telling You, F ORBES , Aug. 26, 2019 (describing healthcare as “the nation’s top voting issue ahead of
2020 elections”).
15
a core merits question—namely, that the individual mandate is unconstitutional—but declined to fashion a remedy in the first instance. Just as the Abbott court directed
the district court to fashion a remedy in the first instance, so too did the Fifth Circuit below. The Court
should deny review in keeping with its standard practice.
Adherence to this practice is especially warranted
here because no harm will flow from answering the questions presented later. This Court routinely reviews questions of standing and statutory interpretation after final
judgment. E.g., Dep’t of Commerce v. New York, 139 S.
Ct. 2551, 2566 (2019) (discussing evidence of standing adduced at trial in statutory-interpretation case); accord
Duke Power Co. v. Carolina Envt’l Study Grp., Inc., 438
U.S. 59, 72 (1978) (noting that the “District Judge held
four days of hearings on the questions of standing and
ripeness” before declaring a statute invalid).
II. Petitioners Provide No Reason to Depart from
the Court’s Settled Practice of Denying Review in
Interlocutory Matters.
This Court should not allow petitioners to leapfrog
lower-court consideration based on their own asserted
“need for certainty.” House Pet. 13. The Fifth Circuit
correctly decided the two questions on which it ruled:
standing and the constitutionality of the individual mandate. But, in any event, the questions are not certworthy
at this juncture. Indeed, petitioners are not really arguing that the issues the Fifth Circuit decided merit immediate review. Instead, they assert that such review is necessary due to the “Fifth Circuit’s refusal” to rule on severability. House Pet. 15. Petitioners have not cited any
16
cases in which this Court granted interlocutory review
precisely because the ruling was interlocutory.
A. This Court does not need to review the Fifth
Circuit’s standing decision.
The Fifth Circuit correctly applied this Court’s wellestablished standing precedent to the particular facts before it. Indeed, petitioners do not even challenge most of
its analysis. The arguments they do raise do not merit
this Court’s attention because they would, at most, affect
the scope of the Fifth Circuit’s remand to the district
court—not its necessity.
1. The standards for judging standing are well established and undisputed. As the Fifth Circuit correctly
noted, at least one plaintiff must demonstrate an injury
that (1) is “actual or imminent, not conjectural or hypothetical,” (2) is fairly traceable to the challenged act of
the defendant,” and (3) “likely . . . will be redressed by a
favorable decision.” App. 19a (cleaned up) (quoting, inter
alia, Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992)).
This Court’s precedent has not set a high evidentiary
bar to demonstrate standing, requiring only that a plaintiff show a sufficient stake in the outcome of a case to ensure that the dispute “will be resolved . . . in a concrete
factual context conducive to a realistic appreciation of the
consequences of judicial action.” Ariz. State Legislature
v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652,
2665 (2015). That inquiry is not to be confused with the
merits of a plaintiff’s claim. Id. at 2663 (quoting Davis v.
United States, 564 U.S. 229, 249 n.10 (2011)). The quantum of the injury does not matter, and Article III
17
“requires no more than de facto causality.” Dep’t of Commerce, 139 S. Ct. at 2566 (quoting Block v. Meese, 793 F.2d
1303, 1309 (D.C. Cir. 1986) (Scalia, J.)). Finally, Article III
demands only that one plaintiff satisfy these standards for
a case to proceed. E.g., Rumsfeld v. Forum for Acad. &
Inst. Rights, Inc., 547 U.S. 47, 53 n.2 (2006).
The Fifth Circuit correctly held that the individual and
state respondents are suffering direct financial injury and
increased regulatory burden from the ACA’s mandate
that nearly all Americans purchase insurance. App. 23a,
32a-33a. The record is “replete with evidence that the individual mandate itself increased the cost[s]” to state respondents in their capacity as employers, including the reporting costs upon which the Fifth Circuit focused. Id.
33a, 36a-37a. As petitioners did not challenge the factual
sufficiency of this evidence or offer contrary proof in the
district court, id. 36a, the Fifth Circuit was correct to hold
that respondents satisfied their burden of proof in the current procedural posture (i.e., plaintiff’s motion for partial
summary judgment). Texas v. United States, 497 F.3d
491, 496-97 (5th Cir. 2007); see also, e.g., United States v.
Students Challenging Regulatory Agency Procedures
(“SCRAP”), 412 U.S. 669, 689 & n.15 (1973) (“If . . . these
allegations were in fact untrue, then the appellants
should have moved for summary judgment on the standing issue.”).
2. Petitioners do not challenge most of this analysis
and admit that “[a] fiscal injury caused by a federal statute or policy can of course be a basis for [establishing]
standing.” States Pet. 20. Instead, petitioners challenge
only whether respondents have demonstrated that the individual mandate caused their fiscal injury absent the
18
now-zeroed tax penalty. States Pet. 20-21; House Pet. 2327. This argument fails for at least three reasons.
First, petitioners’ arguments take NFIB’s statements
describing the individual mandate as a “‘lawful choice’ between buying insurance or paying the tax” out of context.
States Pet. 2 (quoting NFIB, 567 U.S. at 574). The individual mandate was not yet effective in 2012. 26 U.S.C.
§ 5000A(a) (applying “for each month beginning after
2013”). Standing analysis in such a pre-enforcement challenge focuses on the extent to which there is a “credible
threat of prosecution” under the challenged statute. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,
298 (1979); accord Susan B. Anthony List v. Driehaus,
573 U.S. 149, 159 (2014). In 2012, the only threat of prosecution was through the tax penalty. NFIB, 567 U.S. at
574. But this “is not a pre-enforcement challenge.” App.
29a. The individual mandate has been in effect for more
than five years.
Second, because the mandate is in force, the Fifth
Circuit properly looked not only to the costs imposed by
section 5000A but also costs that “are created in part by
the individual mandate’s practical interaction with other
ACA provisions.” App. 36a-37a n. 29 (citing Texas v.
United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an
equally divided Court, 136 S. Ct. 2271 (2016)). Because
“legislatures[] do not generally resolve massive problems in one fell swoop,” courts look to whether different
provisions of an integrated regulatory scheme have
worked together to harm the plaintiff. Massachusetts v.
EPA, 549 U.S. 497, 499, 524 (2007); see also, e.g., United
States v. Windsor, 570 U.S. 744, 755 (2013); Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 683 (1987).
19
Petitioners’ contrary assertions depend on the incorrect premise that because the mandate lacks a specific
penalty, it is not enforced. Almost since the Founding, this
Court has recognized that “[a] law is an expression of the
public will; which, when expressed, is not the less obligatory, because it imposes no penalty.” Ware v. Hylton,
3 U.S. (3 Dall.) 199, 212 (1796); see also, e.g., Groves v.
Slaughter, 40 U.S. (15 Pet.) 449, 457 (1841) (“A law containing no penalty for transgression may be defective in
its operation on the individual, but it is complete to establish the nature of the offence.”). The law is full of instances
where statutes are enforced through means other than direct penalties—e.g., preemption provisions, statutes of
limitations, self-executing treaties, and statutory definitions. And when such provisions (either alone or in combination with other laws) cause harm, they may be challenged. Alaska Airlines, 480 U.S. at 683 (allowing airlines
to challenge various provisions of the Airline Deregulatory Act based on a separate legislative-veto provision).
This Court’s decision in United States v. Windsor, is
particularly instructive. In that case, a taxpayer sought to
challenge the Defense of Marriage Act, 28 U.S.C. § 1738C,
in an action for a tax refund under the marital exemption
from the federal estate tax, 26 U.S.C. § 2056(a). Under the
U.S. House’s view here, the taxpayer should not have
been permitted to “bootstrap any injury” from her tax
claim “into standing to challenge” DOMA because they
were set forth in completely different titles of the U.S.
Code. House Pet. 25-26. There was, however, “no dispute”
that Ms. Windsor had standing because “being forced to
pay [the allegedly unconstitutional] tax causes a real and
immediate economic injury.” 570 U.S. at 755 (quoting
20
Hein v. Freedom from Religion Found., 551 U.S. 587, 599
(2002) (plurality op.)). So too, here.
The authorities cited by the U.S. House (at 26) are
not to the contrary. The plaintiffs in Daimler Chrysler
Corp. v. Cuno tried to use their status as municipal taxpayers to challenge their state taxes. 547 U.S. 332, 35152 (2006). The Court refused to allow them to use a federal court’s pendent jurisdiction under United Mine
Workers v. Gibbs, 383 U.S. 715 (1966), to evade Article
III standing requirements. Cuno, 547 U.S. at 354. Cuno
says nothing about how to analyze standing where two
federal statutes work together to harm a plaintiff. And
Davis v. FEC supports respondents because it requires
courts to examine how a challenged statute works in
practice when assessing a plaintiff’s standing. 554 U.S.
724, 733-34 (2008). The Fifth Circuit did precisely that.
Third, petitioners’ complaint that state respondents
offered insufficient evidence “that state employees
within the respondent states purchased employer-provided health insurance because of amended 5000A,”
House Pet. 26, misstates the record. State respondents
offered extensive evidence of the impact of the ACA, including the individual mandate, on their management of
their internal affairs, which the Fifth Circuit summarized at length. App. 33a-37a. In light of that evidence,
state petitioners, as non-movants, could not rest on conclusory denials. 10A CHARLES ALAN WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 2727.2 (4th ed. 2008).5 They were instead required to
The U.S. House did not seek to intervene until after the district court had issued its December 2018 decision. ROA.2793.
5
21
offer competent evidence showing a genuine issue of fact.
E.g., In re ATM Fee Antitrust Litig., 686 F.3d 741, 74748 (9th Cir. 2012) (citing, inter alia, Duke Power Co., 438
U.S. at 72); Bischoff v. Osceola County, 222 F.3d 874,
878-81 (11th Cir. 2000) (citing Barret Comput. Servs. v.
PDA, Inc., 884 F.3d 214, 215-20 (5th Cir. 1989); MunozMendoza v. Pierce, 711 F.2d 421, 423-25 (1st Cir. 1983)).
But “as even counsel for the [petitioner] states admitted
at oral argument, nobody challenged [state respondents’] evidence as conclusory”—or otherwise insufficient
“in the district court or in the [circuit] court.” App. 33a.
State petitioners did not challenge respondents’ proffer because it was sufficient in the current procedural
posture. The evidence included, among other things, detailed personal affidavits from the officials charged with
overseeing the reporting requirements in South Dakota,
Missouri, Georgia, Texas, and Wisconsin. See generally
ROA.634-785 (Preliminary Injunction Appendix). These
affidavits detailed States’ estimated expenses to operate
their human-resources systems in compliance with the
ACA, including their reporting costs as large employers.
Id. Respondents were not required to show that these
costs increased because particular employees bought insurance as a result of the amended mandate. Such a
question goes (at most) to proximate cause, and this
Court has recognized that standing does not turn on
questions of proximate cause. Dep’t of Commerce, 139 S.
Ct. at 2566.
3. Even if the Fifth Circuit were incorrect, however,
the issue would not be certworthy. As an initial matter,
petitioners’ arguments are largely about evidentiary sufficiency. This Court “do[es] not grant a certiorari to
22
review evidence and discuss specific facts.” United
States v. Johnston, 268 U.S. 220, 227 (1925); see also
SHAPIRO, supra, at 272-75.
Assuming petitioners’ supposed need to “reduce uncertainty” overcomes that hurdle, States Pet. 19, the
question still would not be certworthy because this Court
cannot provide that certainty in the current procedural
posture. This is an appeal from an order granting what
was treated as respondents’ motion for partial summary
judgment. Petitioners neither argued that respondents
failed to plead standing nor cross-moved for summary
judgment based on lack of proof of standing. As a result,
this case would not go away if the Court were to vacate
the district court’s finding of standing. It would go to
trial. See, e.g., Dep’t of Commerce, 139 S. Ct. at 2565;
SCRAP, 412 U.S. at 689; In re ATM Fee Antitrust Litig.,
686 F.3d at 747-48. At that trial, respondents will be allowed to put on evidence of their standing as well as the
appropriate remedy.6
The Fifth Circuit has, however, already ordered a
hearing on the scope of the remedy necessary to redress
the injury that led to the district court’s finding of standing at summary judgment. As a result, petitioners’ request for review of respondents’ standing amounts to
nothing more than a fact-bound dispute over the scope of
the Fifth Circuit’s remand. It does not justify the use of
this Court’s limited resources.
Trial would also address any issues of material fact regarding
respondents’ four remaining claims, which have never been
evaluated by any court.
6
23
B. The constitutionality of the individual mandate
is not certworthy at this time.
The constitutionality of amended section 5000A similarly does not merit the Court’s review ahead of final
judgment. The Fifth Circuit’s analysis was a correct application of NFIB. Even if it were not, petitioners’ entire
theory can be summarized by Judge King’s statement in
dissent “that the coverage requirement is constitutional,
albeit unenforceable.” App. 74a. But even Judge King’s
dissent argued that the court’s holding regarding the
mandate, removed from any discussion of severability, is
“harmless.” Id. 73a. This Court grants certiorari “in
cases of peculiar gravity and general importance, or in
order to secure uniformity of decision”—not to correct
errors, no matter how significant the general subject
matter. Hamilton-Brown, 240 U.S. at 258.
1. The Fifth Circuit correctly held that without a revenue-producing penalty, section 5000A is unconstitutional. In NFIB, this Court squarely held that Congress
may not—as it purported to do—use its power to regulate interstate commerce to order Americans to buy
health insurance, any more than it can order them to buy
a new car or broccoli. 567 U.S. at 547-61 (Roberts, C.J.)
(holding law also exceeded power under Necessary and
Proper Clause); id. at 657 (dissenting opinion). Though
Congress has “broad authority” to “regulate existing
commercial activity,” that authority does not extend to
compelling individuals to create commercial activity. Id.
at 549, 552 (Roberts, C.J.); id. at 650 (dissenting op.).
The only reason that section 5000A survived was because it was “fairly possible” to read its minimum-
24
essential-coverage mandate as the trigger for a tax. Id.
at 563 (Roberts, C.J.). Key to that construction was that
section 5000A, as a whole, had the “essential feature of
any tax: it produces at least some revenue for the Government.” Id. at 563-64 (citing United States v. Kahriger,
345 U.S. 22, 28 n.4 (1953), overruled in part on other
grounds, Marchetti v. United Sates, 390 U.S. 39 (1968)).
Because, following the 2017 amendment, the provision no
longer produces revenue, that saving construction is no
longer valid. E.g., Sonzinsky v. United States, 300 U.S.
506, 514 (1937); In re Kollock, 165 U.S. 526, 536 (1897).
Petitioner makes three arguments to the contrary. None
has merit.7
First, contrary to the U.S. House’s assertion (at 19),
section 5000A did not forever become a tax because
NFIB construed the combination of a mandate to buy
minimum essential coverage with a tax penalty to create
a tax. Courts have an important role in our constitutional
system because “[a]ll new laws . . . are considered as
more or less obscure and equivocal” until ruled upon in
litigation, even when—unlike the ACA—those laws are
“penned with the greatest technical skill and passed on
the fullest and most mature deliberation.” THE FEDERALISt No. 37, at 225 (Madison) (Clinton Rossiter, ed.,
Also without merit is the suggestion of one amicus that section 5000A continues to produce revenue because of taxpayer
delinquency. Doerre Br. 8-10. Assuming an individual’s failure
to abide by the law can somehow make that law constitutional,
the United States has used accrual accounting for decades.
D EP ’ T OF T REASURY , FY18 F INANCIAL R EPORT OF THE
U NITED S TATES G OVERNMENT 8 (2019). This revenue was recognized before the amendment took effect.
7
25
1961). This Court’s constructions of a statute are binding
under principles of stare decisis, but they are still just
that—interpretations of the statute passed by Congress.
Jonathan Mitchell, The Writ-of-Erasure Fallacy, 104
VA. L. REV. 933, 968-70 (2018).
As petitioners’ own authority recognizes, this Court’s
“interpretative decisions” are “subject (just like the rest)
to congressional change.” Kimble v. Marvel Entm’t,
LLC, 135 S. Ct. 2401, 2409 (2015). Whether to continue
to apply a saving construction is a separate question,
which must be analyzed under the text as it exists postamendment. Cf. Gross v. FBL Fin. Servs., 557 U.S. 167,
173-78 (2009).
In its post-amendment form, section 5000A contains
no revenue-producing penalty, and thus cannot be constructed as tax—or as a choice between buying insurance
or paying a tax. Contra House Pet. 27; State Pet. 21-22.
As amended, the only “fairly possible” interpretation is
as a “command to buy insurance.” NFIB, 567 U.S. at 574
(Roberts, C.J.). Far from “an implausible construction of
section 5000A that bears no resemblance to what Congress actually did,” House Pet. 18, this has always been
the most “natural[]” reading of the individual mandate.
NFIB, 567 U.S. at 574 (Roberts, C.J.).
Second, equally unavailing is the assertion that because section 5000A lacks an enforcement provision, it
“imposes no obligation whatsoever” and “no longer depends on an enumerated power.” House Pet. 28; see
States Pet. 22. As an initial matter, because Congress
has no police power, it cannot do anything without an
enumerated power. See, e.g., United States v. Morrison,
529 U.S. 598, 617-18 (2000); id. at 639 (Souter, J.,
26
dissenting) (“The premise that the enumeration of powers implies that other powers are withheld is sound.”).
The fact that Congress has purported to pass (supposedly) nonbinding laws and concurrent resolutions that
fall outside the scope of its enumerated authority “does
not, by itself, create power” to do so. Medellin v. Texas,
552 U.S. 491, 531-32 (2008) (quoting Dames & Moore v.
Regan, 453 U.S. 654, 686 (1981)).
Third, the individual mandate does not remain a tax
merely because Congress chose to zero out section
5000A’s formula rather than deleting it entirely. Petitioners maintain that the mandate is still a tax because it
“provides a structure through which future taxpayers
could be directed to pay a tax,” thereby allowing Congress to “increase the amount of the tax again later if it
decides to do so.” States Pet. 22-23; cf. House Pet. 29 n.8
(making similar argument under Necessary and Proper
Clause). The same logic would allow Congress to order
consumers to buy any good because “future taxpayers
could [always] be directed to pay a tax” for refusing to
purchase today’s favored commodity if Congress “later
. . . decides to do so.” States Pet. 22-23. This Court has,
however, already said that Congress has no authority to
issue such a command. NFIB, 567 U.S. at 557-58 (Roberts, C.J.); id. at 650 (dissenting op.).
2. Even if the individual mandate is constitutional because some hypothetical future Congress may pass a tax,
review would not be warranted ahead of final judgment.
According to Judge King, the primary difference between the Fifth Circuit majority and the dissent was
whether the individual mandate was “unenforceable by
congressional design or constitutional demand.” App.
27
73a. Though state respondents disagree with Judge
King’s premise, petitioners endorse it wholesale. States
Pet. 3, 20-23; House Pet. 33-34. Nowhere do petitioners
explain why what they believe to be an “academic curiosit[y],” App. 73a, requires this Court to depart from its
“normal practice [to] deny[] interlocutory review” pending resolution of the open severability question. Estelle,
429 U.S. at 114-15 (Stevens, J., dissenting).8
C. The question of severability is not ripe for review.
The Court should not grant review of this case merely
to address the Fifth Circuit’s severability analysis. The
circuit court remanded for further proceedings on this
question because, in its view, the district court’s analysis
was “incomplete.” App. 65a. State respondents respectfully disagree with that conclusion and will be filing a
conditional cross-petition to preserve their argument
that the district court’s ruling should have been affirmed
in full. Petitioners are wrong, however, to lambast the
Fifth Circuit for “abdicating the responsibility to address severability” when it remanded the question of appropriate remedy to the district court in the first instance. House Pet. 4. Their arguments fail for at least
three reasons.
Equally telling, petitioners’ amici offer only one reason why
immediate review of the Fifth Circuit’s merits ruling is necessary: uncertainty about its severability ruling. 33 State Hosp.
Ass’ns Br. 12-14; AARP Br. 5-13; Am. Cancer Soc’y Br. 11-12;
Alliance Br. 7-17; Am. Health Ins. Plans Br. 8-21; Econ. Scholars Br. 22-25; Nat’l Hosps. Ass’n Br. 16-23; Small Bus. Majority Br. 11-13; accord generally Doerre Br. (providing no reason for review ahead of judgment).
8
28
1. Though an appellate court may review pure questions of law in the first instance, it is under no obligation
to do so. Jander, 2020 WL 201024, at *2. Put another
way, the presence of an open question of fact can be sufficient to justify a remand, but it is not necessary. This
Court has frequently remanded cases involving complex
questions of severability. E.g., Planned Parenthood of
Se. Penn. v. Casey, 505 U.S. 833, 901 (1992); FW/PBS,
Inc. v. City of Dallas, 493 U.S. 215, 230 (1990); Lakewood
v. Plain Dealer Pub. Co., 486 U.S. 750, 772 (1988); Exxon
Corp. v. Eagerton, 462 U.S. 176 (1983); Guste v. Jackson,
429 U.S. 399, 400 (1977) (per curiam). Though unnecessary, the Fifth Circuit’s decision to do so here was hardly
“indefensible,” House Pet. 14, and does not independently warrant review. This is particularly true given
that “the federal defendants have shifted their position
[regarding remedy] on appeal more than once.” App. 13a.
2. Petitioners’ assertion that the Fifth Circuit was
obliged to address severability misconstrues the court’s
holding by conflating two concepts: severability and remedy. Severability is a question of statutory interpretation
that has remedial consequences, but the principles that
govern severability “and the principles that govern constitutional invalidity are not part of the law of remedies.”
John Harrison, Severability, Remedies, and Constitutional Adjudication, 83 GEO. WASH. L. REV. 56, 87
(2014). The Fifth Circuit remanded so the district court
could consider both severability and remedy in the first
instance. App. 71 (citing Murphy v. NCAA, 138 S. Ct.
1461 (2018) and Gill).
Disentangling the two inquiries demonstrates why
this case is not ripe for review. When addressing
29
severability, a court that has concluded that the Constitution forbids it to enforce one statutory provision asks
whether Congress would permit it to enforce the rest.
Murphy, 138 S. Ct. at 1482. When fashioning a remedy,
by contrast, a court must ask how much of a statutory
scheme must be left unenforced to “vindicate an individual plaintiff’s right[s].” Gill, 138 S. Ct. at 1930. Where a
statute’s constitutionality is raised as a defense to an enforcement action, the remedy is simple: The enforcement
action must begin anew after the unconstitutional provision has been excised. Lucia v. S.E.C., 138 S. Ct. 2044,
2055 (2018). Where (as here) different plaintiffs suffering
different harms seek prospective relief, the question of
remedy is more complex.
a. The question of severability is a pure question of
law that the Fifth Circuit should have decided in respondents’ favor. A provision is inseverable if, removing
the offending language, (1) the remainder of the statute
would not “function in a manner consistent with the intent of Congress,” or (2) “the Legislature would not have
enacted” the remaining provisions “independently of”
the provisions found unconstitutional. Alaska Airlines,
480 U.S. at 684; see also NFIB, 567 U.S. at 692-93 (dissenting op.). In many scenarios, “the severability doctrine requires courts to make a nebulous inquiry into hypothetical congressional intent.” Murphy, 138 S. Ct. at
1486 (Thomas, J., concurring) (quotation marks omitted).
Moreover, any inquiry here into hypothetical intent
spans multiple Congresses because the ACA has frequently been amended.
In this case, the question of severability is simple: In
2010, Congress repeatedly stated that the “[t]he
30
requirement” to purchase health insurance—that is, the
mandate, not the associated tax penalty—is critical to
the functioning of the ACA’s major features. 42 U.S.C.
§ 18091. In particular, section 18091(2)(I) explains that
“if there were no requirement [to buy health insurance],
many individuals would wait to purchase health insurance until they needed care,” since the guaranteed-issue
and community-ratings provisions would guarantee
those individuals coverage irrespective of their current
medical status. See id. So “[b]y significantly increasing
health[-]insurance coverage, the requirement . . . will
minimize this adverse selection and broaden the health[]insurance risk pool to include healthy individuals, which
will lower health[-]insurance premiums.” Id. Thus “[t]he
requirement 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.” Id. (emphasis added). Congress did not disturb those findings in
2017.
State petitioners acknowledge (at 8-9 & n.5) that
“[b]etween 2010 and 2016, Congress considered several
bills to defund, delay, or otherwise amend” the ACA, including the individual mandate. They further
acknowledge that Congress left “every other provision in
. . . place.” States Pet. 2. Nevertheless, petitioners and
their amici exhort the Court to ignore Congress’s express statutory findings. Because Congress removed
section 5000A’s penalty in 2017, they say, it must have
wanted the individual mandate to be unenforceable.
House Pet. 31-33; States Pet. 23-24. Petitioners’ amici, in
particular, ask this Court to examine numerous economic
31
studies that purport to show that the individual mandate
was never as important to the structure of the ACA as
Congress anticipated and that it is essentially irrelevant
now. Nat’l Hosp. Ass’n Br. 8-10.
This argument is, however, circular. The penalty was
just one mechanism that Congress used to effectuate the
mandate that Americans buy minimum-essential coverage. CBO 2008 REPORT at 50-53. Subsidies were another.
All that we can confidently infer from Congress’s actions
in 2017 is that most members of Congress no longer
thought it good policy to penalize their constituents for
refusing to buy a product that they did not want. The
question of whether Congress thought that the mandate
itself was necessary to the continued function of the ACA
was “[q]uite separate[].” NFIB, 567 U.S. at 664 (dissenting op.). As Congress opted not to remove its legislative
finding, the best view is that the entirety of the ACA is
inseverable from the mandate. Id. at 704-06.
That said, it was hardly indefensible for the Fifth Circuit to remand to the district court to conduct the provision-by-provision analysis that the United States has asserted was necessary since 2012. NFIB Br. 44-54 (acknowledging that the guaranteed-issue and communityrating provisions were inseverable).
b. It was also defensible (albeit unnecessary) for the
Fifth Circuit to remand for the district court to consider
the United States’ shifting position on remedy. In addition to the severance question, “[t]he federal defendants
admitted at oral argument that they had raised” an additional “scope-of-relief issue” under Gill “on appeal ‘for
the first time.’” App. 71a.
32
In Gill, this Court required plaintiffs who alleged
that Wisconsin had violated the Voting Rights Act by diluting their votes to demonstrate that they lived in affected districts. 138 S. Ct. at 1930. The Gill plaintiffs had
originally requested (and been awarded) prospective relief requiring the entire map to be redrawn, but the
Court held that a “plaintiff’s remedy must be ‘limited to
the inadequacy that produced [his] injury in fact.’” Id. at
1930 (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)).
To merit a remedy as broad as the one plaintiffs had requested, the plaintiffs needed to show such widespread
violations of federal law that their rights could be vindicated only “through a wholesale ‘restructuring of the geographical distribution of seats.’” Id. (quoting Reynolds
v. Sims, 377 U.S. 533, 561 (1964)).
In this case, the federal government maintained for
the first time on appeal that, under Gill, the declaratory
judgment entered by the district court should have been
limited to (1) respondents, and (2) the provisions necessary to vindicate the harms that gave rise to respondents’ standing. App. 70a-71a.
Unlike severability, the appropriate scope of an injunction is not a pure question of law but a question that
requires a district court sitting in equity to weigh numerous competing considerations (both factual and legal).
E.g., Trump v. Int’l Refugee Assistance Project, 137 S.
Ct. 2080, 2087 (2017) (citing Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20, 24 (2008); 11A CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2948 (3d ed. 1999)). And, contrary to petitioners’ assertion, that question has not been
“fully briefed.” House Pet. 3. The United States asked
33
the district court to treat respondents’ request for a preliminary injunction as a motion for summary judgment
because there were no issues of disputed fact—about
remedy or anything else. ROA.1563. Any non-jurisdictional arguments regarding the scope of the district
court’s remedy have thus been waived. E.g., Armstrong
v. Brown, 768 F.3d 975, 981 (9th Cir. 2014); cf. O2 Micro
Int’l Ltd. v. Beyond Innovation Tech., Co., 449 F. App’x
923, 934 (Fed. Cir. 2011). But if the circuit court had concerns about the scope of the United States’ waiver, remand was appropriate “so that the plaintiffs may have an
opportunity to prove concrete and particularized injuries
[supporting their requested relief] using evidence.” Gill,
138 S. Ct. at 1934.
III. Petitioners’ Policy Arguments Also Do Not
Justify Review.
Petitioners offer two final arguments grounded in
policy. First, they claim that they (and the healthcare
market) desire certainty. Second, they suggest immediate review will advance judicial economy. Both arguments are wrong.
First, the ACA’s future is chronically uncertain, and
nothing this Court does will change that. Since its inception, the ACA has been the target of countless legislative
repeal efforts. See Annie L. Mach & Janet Kinzer, Congressional Research Service, Legislative Actions to
Modify the Affordable Care Act in the 111th-115th Congresses
5-16
(June
27,
2018),
https://fas.org/sgp/crs/misc/R45244.pdf (listing legislative efforts to repeal the ACA). Efforts to repeal the Affordable Care Act are so widespread that they have
34
earned their own dedicated Wikipedia page. See “Efforts
to Repeal the Patient Protection and Affordable Care
Act,”
Wikipedia,
https://en.wikipedia.org/wiki/Efforts_to_repeal_ the_Patient_Protection_and_Affordable_Care_Act. Already, candidates seeking office in the
2020 national elections are calling for the ACA to be repealed. See, e.g., “Restore Healthcare Freedom,” Chip
for Congress 2020, https://chiproy.com/issues/. The Nation may be one election away from the end of the ACA,
regardless of anything this Court might do.
And in any event, this is not the only lawsuit that
would weaken or end the ACA. Many of the ACA’s core
features are the subject of legal challenges both here and
elsewhere. E.g., Moda Health Plan, Inc. v. United
States, No. 18-1028 (U.S.) (ACA § 1342); Trump v. Pennsylvania, No. 19-454 (U.S.) (ACA § 1001); Texas v. Rettig, No. 18-10545 (5th Cir.) (ACA § 9010); cf. Sanford
Health Plan v. United States, No. 18-136C (Ct. Fed. Cl.)
(ACA §§ 1401, 1412); Timothy S. Jost, 2018: The Year of
Renewed Affordable Care Act Litigation, Jan. 9, 2019,
https://www.commonwealthfund.org/blog/2019/
2018year-renewed-affordable-care-act-litigation.
Second, immediate review will hinder, not advance,
judicial economy. This Court insists repeatedly that it is
one “of review, not of first view.” Jander, 2020 WL
201024, at *2. That maxim protects this Court’s limited
resources and reduces the likelihood of error. See id.; see
also Cutter, 544 U.S. at 718 n.7 (declining to resolve central issue not addressed by court of appeals). Yet petitioners ask the Court to take the “first view” of the severability issue without the benefit of a reasoned decision
from the court of appeals. That is the type of request this
35
Court declines as a matter of course. Abbott, 137 S. Ct.
at 613 (Roberts, C.J.); see supra pp. 11-13 (discussing
Abbott and related cases).
IV. No. 19-841 Should Be Denied Because the U.S.
House Lacks Standing Under Bethune-Hill.
There is an additional reason to deny the petition in
No. 19-841: The U.S. House lacks standing to challenge
the Fifth Circuit’s judgment. Just last year, this Court
held in Bethune-Hill that one house of a bicameral legislature lacks standing to independently petition this
Court to defend a legislative enactment. 139 S. Ct. at
1953-54. That rule applies here. The U.S. House is a single chamber of a bicameral legislature. It cannot challenge the Fifth Circuit’s decision for the reasons set out
in Bethune-Hill. Standing is jurisdictional; if the Court
were to grant No. 19-841, the parties would be forced to
brief the proper application of a decision of this Court
that is barely a year old. The better course is to simply
deny No. 19-841 altogether.
36
C O N C L U S IO N
The petitions of the California coalition in No. 19-840
and the United States House of Representatives in
No. 19-841 should be denied.
Respectfully submitted.
STEVE MARSHALL
Attorney General of
Alabama
MARK BRNOVICH
Attorney General of
Arizona
LESLIE RUTLEDGE
Attorney General of
Arkansas
ASHLEY MOODY
Attorney General of
Florida
CHRISTOPHER M. CARR
Attorney General of
Georgia
CURTIS T. HILL, JR.
Attorney General of
Indiana
DEREK SCHMIDT
Attorney General of
Kansas
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant
Attorney General
KYLE D. HAWKINS
Solicitor General
Counsel of Record
MATTHEW H. FREDERICK
Deputy Solicitor General
LANORA C. PETTIT
Assistant Solicitor General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Kyle.Hawkins@oag.texas.gov
(512) 936-1700
37
JEFF LANDRY
Attorney General of
Louisiana
LYNN FITCH
Attorney General of
Mississippi
ERIC SCHMITT
Attorney General of
Missouri
DOUG PETERSON
Attorney General of
Nebraska
WAYNE STENEHJEM
Attorney General of
North Dakota
ALAN WILSON
Attorney General of
South Carolina
JASON R. RAVNSBORG
Attorney General of
South Dakota
HERBERT H. SLATERY, III
Attorney General of
Tennessee
SEAN REYES
Attorney General of
Utah
38
PATRICK MORRISEY
Attorney General of
West Virginia
February 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.