Opposition Brief — California, et al., Petitioners v. Texas, et al.

Nos. 19-840 and 19-841

In the Supreme Court of the United States

STATE OF CALIFORNIA, ET AL., PETITIONERS

v.

STATE OF TEXAS, ET AL.

UNITED STATES HOUSE OF REPRESENTATIVES,

PETITIONER

v.

STATE OF TEXAS, ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOSEPH H. HUNT

Assistant Attorney General

AUGUST E. FLENTJE

Special Counsel

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly determined

that at least one of the plaintiffs has standing to challenge the minimum-essential-coverage requirement of

26 U.S.C. 5000A(a).

2. Whether, as a result of the elimination of the monetary penalty for noncompliance with the minimumessential-coverage requirement, that requirement is no

longer a valid exercise of Congress’s legislative authority.

3. Whether, if the minimum-essential-coverage requirement is invalid, the remainder of the provisions of

the Patient Protection and Affordable Care Act, Pub. L.

No. 111-148, 124 Stat. 119, are severable from it.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 2

Statement ...................................................................................... 2

Argument..................................................................................... 10

Conclusion ................................................................................... 25

TABLE OF AUTHORITIES

Cases:

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ............................................................... 21

Ayotte v. Planned Parenthood of N. New Eng.,

546 U.S. 320 (2006).......................................................... 9, 18

Bowsher v. Synar, 478 U.S. 714 (1986) ........................ 13, 21

Buckley v. Valeo, 424 U.S. 1 (1976)...................................... 21

Camreta v. Greene, 563 U.S. 692 (2011) .............................. 23

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) .......................................................... 24

Diamond v. Charles, 476 U.S. 54 (1986) ............................. 21

Expressions Hair Design v. Schneiderman,

137 S. Ct. 1144 (2017) ......................................................... 18

Hernandez v. Mesa, 137 S. Ct. 2003 (2017) ........................ 18

Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ..................... 18

Murphy v. National Collegiate Athletic Ass’n,

138 S. Ct. 1461 (2018) ......................................................... 17

National Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012).............................................. 2, 3, 4, 7, 14

Printz v. United States, 521 U.S. 898 (1997) ...................... 17

Retirement Plans Comm. of IBM v. Jander,

No. 18-1165 (Jan. 14, 2020) ................................................ 18

(III)

IV

Cases—Continued:

Page

Rumsfeld v. Forum for Academic & Institutional

Rights, Inc., 547 U.S. 47 (2006) ...................................... 13

United States v. Stitt, 139 S. Ct. 399 (2018) .................. 16, 18

Virginia House of Delegates v. Bethune-Hill,

139 S. Ct. 1945 (2019) ................................................... 20, 21

Constitution, statutes, and rules:

U.S. Const.:

Art. I, § 8:

Cl. 3 (Commerce Clause) ............................................ 3

Cl. 18 (Necessary and Proper Clause) ...................... 4

Art. III .............................................................................. 12

Patient Protection and Affordable Care Act,

Pub. L. No. 111-148, 124 Stat. 119 ...................................... 2

Tit. I, 124 Stat. 130 ........................................................ 2, 3

§ 1501(b), 124 Stat. 244................................................ 2

26 U.S.C. 36B ............................................................... 3

26 U.S.C. 45R ............................................................... 3

26 U.S.C. 4980H ........................................................... 3

26 U.S.C. 5000A ................................................. 2, 4, 19

26 U.S.C. 5000A(a) ................................................. 2, 11

26 U.S.C. 5000A(b) ...................................................... 2

26 U.S.C. 5000A(c) ................................................... 2, 4

42 U.S.C. 300gg(a)(1) .................................................. 3

42 U.S.C. 300gg-1 ........................................................ 3

42 U.S.C. 300gg-4(a) .................................................... 3

42 U.S.C. 300gg-4(b).................................................... 3

42 U.S.C. 300gg-11 ...................................................... 3

42 U.S.C. 300gg-14(a) .................................................. 3

42 U.S.C. 18022 ............................................................ 3

42 U.S.C. 18031-18044 ................................................. 3

V

Statutes and rules—Continued:

Page

Tit. II, 124 Stat. 271 .......................................................... 3

Tit. III, 124 Stat. 353......................................................... 3

Tit. IV, 124 Stat. 538 ......................................................... 3

Tit. VI, 124 Stat. 684 ......................................................... 3

Tax Cuts and Jobs Act, Pub. L. No. 115-97,

Tit. I, 131 Stat. 2054.............................................................. 4

§ 11081, 131 Stat. 2092 ...................................................... 4

28 U.S.C. 515-519 ................................................................... 21

42 U.S.C. 300gg-3................................................................. 3

Fed. R. Civ. P.:

Rule 24(a) ........................................................................... 5

Rule 24(b) ....................................................................... 5, 6

In the Supreme Court of the United States

No. 19-840

STATE OF CALIFORNIA, ET AL., PETITIONERS

v.

STATE OF TEXAS, ET AL.

No. 19-841

UNITED STATES HOUSE OF REPRESENTATIVES,

PETITIONER

v.

STATE OF TEXAS, ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

1a-113a *) is reported at 945 F.3d 355. The memorandum opinion and order of the district court granting

partial summary judgment (Pet. App. 163a-231a) is reported at 340 F. Supp. 3d 579. The order of the district

Unless otherwise indicated, this brief refers to the appendix to

the petition for a writ of certiorari in No. 19-840.

*

(1)

2

court granting a stay and partial final judgment (Pet.

App. 117a-162a) is reported at 352 F. Supp. 3d 665.

JURISDICTION

The judgment of the court of appeals was entered on

December 18, 2019. The petitions for writs of certiorari

were filed on January 3, 2020. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Patient Protection and Affordable Care Act

(ACA), Pub. L. No. 111-148, 124 Stat. 119, established a

framework of economic regulations and incentives that

restructured the health-insurance and healthcare

industries. See Pet. App. 4a. Among many other provisions, Title I of the ACA, 124 Stat. 130, enacted

26 U.S.C. 5000A, see ACA § 1501(b), 124 Stat. 244,

which is captioned “Requirement to maintain minimum

essential coverage,” 26 U.S.C. 5000A, and is colloquially

known as the “individual mandate,” e.g., Pet. App. 3a.

Subsection (a) of Section 5000A mandates that certain individuals “shall * * * ensure” that they are “covered under minimum essential coverage.” 26 U.S.C. 5000A(a).

Subsection (b) imposes “a penalty,” denominated as a

“[s]hared responsibility payment,” on certain taxpayers

who “fail[] to meet the requirement of subsection (a).”

26 U.S.C. 5000A(b) (emphasis omitted). And subsection

(c) specifies “[t]he amount of the penalty imposed” for

noncompliance. 26 U.S.C. 5000A(c). The penalty originally was calculated as a percentage of household income, within certain limits. National Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 539 (2012) (NFIB).

In addition to the individual mandate, the ACA included a number of additional provisions addressing the

health-insurance and healthcare sectors. For example,

3

the ACA’s “guaranteed-issue” provisions prohibit insurers from denying coverage because of an individual’s

medical condition or history. Pet. App. 4a; see 42 U.S.C.

300gg-1, 300gg-3, 300gg-4(a). And its “communityrating” provisions prohibit insurers from charging

higher premiums because of an individual’s medical

condition or history. Pet. App. 4a; see 42 U.S.C.

300gg(a)(1), 300gg-4(b). Other provisions of Title I impose prohibitions on coverage limits, requirements

to cover dependent children, and essential benefits

packages for insurance plans. 42 U.S.C. 300gg-11,

300gg-14(a), 18022. The ACA also created insurance

exchanges to allow consumers to shop for insurance

plans, and provided subsidies and tax incentives.

42 U.S.C. 18031-18044 (creation of insurance exchanges); 26 U.S.C. 36B, 45R, 4980H (tax changes).

Other Titles of the ACA enacted a number of other

changes, including expanding the Medicaid program

(Title II, 124 Stat. 271), amending the Medicare program (Title III, 124 Stat. 353), enacting a range of prevention programs (Title IV, 124 Stat. 538), and imposing

anti-fraud requirements (Title VI, 124 Stat. 684).

In NFIB, this Court addressed whether “Congress

has the power under the Constitution to enact” the

individual mandate. 567 U.S. at 532. In an opinion by

the Chief Justice, the Court concluded that the individual mandate and shared-responsibility payment were a

valid exercise of Congress’s taxing power, under a saving construction adopted in light of the canon of constitutional avoidance. Id. at 563-574. That construction

was necessary because the Chief Justice agreed with

the four dissenting Justices that the individual mandate

was not a valid exercise of Congress’s authority under

the Constitution’s Commerce Clause, Art. I, § 8, Cl. 3,

4

or Necessary and Proper Clause, Art. I, § 8, Cl. 18. See

NFIB, 567 U.S. at 547-561, 574 (opinion of Roberts,

C.J.); id. at 649-660 (joint opinion of Scalia, Kennedy,

Thomas, and Alito, JJ., dissenting).

2. In December 2017, Congress enacted the Tax

Cuts and Jobs Act (TCJA), Pub. L. No. 115-97, Tit. I,

131 Stat. 2054. Among other things, the TCJA eliminated the shared-responsibility payment as of January

1, 2019. § 11081, 131 Stat. 2092. It did so by reducing

the amount of the required payment specified in Section

5000A(c) to zero. Ibid. The TCJA did not otherwise

modify Section 5000A.

Following the TCJA’s enactment, Texas, 17 other

States, and two individuals brought suit challenging the

constitutionality of the individual mandate and the

enforceability of the ACA. Pet. App. 10a. The plaintiffs

contended that the elimination of the shared-responsibility

payment abrogated the basis of the saving construction

of the individual mandate that this Court had adopted

in NFIB, and they argued that the remainder of the

ACA is inseverable from the individual mandate. Ibid.

The federal government agreed with the plaintiffs that

the individual mandate is no longer constitutional, and it

argued that two other ACA provisions—the guaranteedissue and community-rating requirements—are inseverable from the individual mandate. Id. at 11a. California, 15 other States, and the District of Columbia

intervened to defend the ACA. Id. at 11a & n.10.

The district court denied the plaintiffs’ request for a

preliminary injunction, but it granted them partial summary judgment on their claim for declaratory relief.

Pet. App. 11a-12a; see id. at 163a-231a. The court concluded that the individual mandate is unconstitutional,

stating that “[this] Court’s reasoning in NFIB * * *

5

compels the conclusion that the Individual Mandate

may no longer be upheld under the Tax Power,” and it

“remains unsustainable under the Interstate Commerce Clause.” Id. at 164a. The court further determined that “the Individual Mandate is inseverable from

the ACA’s remaining provisions.” Id. at 165a.

All parties in the district court—the plaintiffs, the intervenor States, and the federal government—agreed

that the district court’s decision should not take effect

pending appeal. See D. Ct. Doc. 213-1, at 1-2 (Dec. 17,

2018); D. Ct. Doc. 216, at 2-3 (Dec. 21, 2018); D. Ct. Doc.

217, at 2 (Dec. 21, 2018). The court entered a partial

final judgment as to the plaintiffs’ claim for declaratory

relief, Pet. App. 116a, but it stayed that judgment pending appeal, id. at 117a-162a. The court issued an order

staying “the remainder of this case * * * pending further order[ ]” of the court. Id. at 114a.

3. The federal government and the intervenor States

appealed. Pet. App. 12a. Several additional States

moved unopposed in the court of appeals for permissive

intervention, seeking to join California and the other

States that had intervened in the district court to defend

the ACA. Id. at 12a & n.12; see Colorado et al. C.A. Mot.

to Intervene 6-7 (Jan. 31, 2019).

The United States House of Representatives also

moved in the court of appeals to intervene as of right

under Federal Rule of Civil Procedure 24(a) or, alternatively, for permissive intervention under Rule 24(b).

House C.A. Mot. to Intervene 5-20 (Jan. 7, 2019). The

federal government opposed the House’s motion,

explaining that the House has no statutory right to

intervene and no cognizable legal interest that would be

impaired if it were not allowed to intervene. Gov’t C.A.

Opp. to House Mot. to Intervene 4-17 (Feb. 8, 2019).

6

The government argued that permissive intervention

was also unwarranted because the House had no concrete legal interest at stake, its motion was untimely,

and the House could adequately convey its views as an

amicus. Id. at 18-19. The court of appeals rejected the

House’s contention that it has a “right to intervene

under Rule 24(a)(1) or under 28 U.S.C. § 530D.” 2/14/19

C.A. Order 2. The court also found it “questionable”

whether the House “has the right [to intervene] under

Rule 24(a)(2),” but the court reserved judgment on that

question and instead granted permissive intervention

under Rule 24(b). Ibid.; see Pet. App. 12a.

While the appeal was pending, the federal government notified the court of appeals that it had determined that all of the ACA’s provisions are inseverable

from the individual mandate. Pet. App. 12a. It also argued that any relief should be limited to only what is

necessary to remedy the plaintiffs’ own injuries. Id. at

12a-13a. The federal government subsequently moved

unopposed to expedite oral argument, but it did not request acceleration of the remaining briefing. Gov’t C.A.

Mot. to Expedite 2 (Apr. 8, 2019).

4. The court of appeals affirmed in part and vacated

in part in a divided decision. Pet. App. 1a-72a.

a. The court of appeals concluded that both the federal government and the intervenor States had standing

to appeal the district court’s judgment. Pet. App.

14a-19a. The court reserved judgment on whether the

House also had standing to appeal, stating that “ ‘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,” which the court found was true here. Id. at

19a (citation omitted).

7

The court of appeals next concluded that the individual and State plaintiffs had standing to bring this lawsuit. Pet. App. 19a-39a. The court stated that “[t]he

standing issues presented by the individual plaintiffs

are not novel,” observing that a very similar question of

standing had arisen with respect to certain plaintiffs

challenging the individual mandate in NFIB. Id. at 20a;

see id. at 20a-22a. The court of appeals agreed with the

district court that “the undisputed evidence” in this case

“showed that the individual mandate caused” two injuries to the individual plaintiffs: a “financial injury” of

being forced to obtain insurance and an “ ‘increased regulatory burden’ that the individual mandate imposes.”

Id. at 23a. It further concluded that “a favorable judgment would redress both injuries.” Ibid.; see id. at

23a-32a. The court of appeals concluded that the State

plaintiffs also have standing because the ACA causes

them “fiscal injuries as employers” subject to various

ACA requirements. Id. at 33a; see id. at 32a-39a. The

court noted, however, that “even if the state plaintiffs

did not have standing, this case could still proceed because the individual plaintiffs have standing,” id. at 32a

n.26, and vice versa, see id. at 32a n.25.

On the merits, the court of appeals concluded that

the individual mandate is no longer “a constitutional

exercise of congressional power.” Pet. App. 39a; see id.

at 39a-52a. The court stated that “[a] majority” of this

Court in NFIB had “concluded that the individual mandate is not constitutional under either the Interstate

Commerce Clause or the Necessary and Proper Clause.”

Id. at 41a; see id. at 40a-43a; cf. NFIB, 567 U.S. at 572

(“The Court today holds that our Constitution protects

us from federal regulation under the Commerce Clause

so long as we abstain from the regulated activity.”). As

8

the court of appeals observed, the Court in NFIB had

upheld the individual mandate instead on the ground

that, “in order to save the individual mandate from

unconstitutionality,” the mandate could be “[r]ead

together with the shared responsibility payment * * *

as a legitimate exercise of Congress’ taxing power.”

Pet. App. 43a; see id. at 43a-44a. But “[n]ow that the

shared responsibility payment amount is set at zero”

under the TCJA, the court of appeals reasoned, “the

provision’s saving construction is no longer available.”

Id. at 44a; see id. at 44a-52a.

The court of appeals then turned to “whether, or how

much of, the rest of the ACA is severable from” the

individual mandate. Pet. App. 52a. But the court did

not decide that question. Instead, it “remand[ed] to the

district court to undertake two tasks.” Ibid. First, the

court of appeals determined that the district court had

not undertaken “the meticulous analysis required by

severability doctrine” under this Court’s precedents,

and it remanded the case for the district court to conduct that analysis in the first instance. Id. at 55a; see

id. at 69a. The court of appeals explained that the severability issue “involves a challenging legal doctrine applied to an extensive, complex, and oft-amended statutory scheme.” Id. at 59a. The court emphasized the

“need for a careful, granular approach to carrying out

the inherently difficult task of severability analysis in

the specific context of this case,” and it was “not persuaded that the approach to the severability question

set out in the district court opinion satisfie[d] that

need.” Ibid. The court of appeals stated that “[t]he district court opinion does not explain with precision how

particular portions of the ACA as it exists post-2017 rise

9

or fall on the constitutionality of the individual mandate,” and it “gives relatively little attention to the

intent of the 2017 Congress, which appears in the analysis only as an afterthought.” Id. at 59a, 65a; see id. at

59a-62a. The court of appeals further noted that “the

district court opinion does not do the necessary legwork

of parsing through the over 900 pages of the post-2017

ACA, explaining how particular segments are inextricably linked to the individual mandate.” Id. at 65a.

The court of appeals noted that this Court “has remanded in the severability context upon a determination that additional analysis was necessary.” Pet. App.

68a (citing Ayotte v. Planned Parenthood of N. New

Eng., 546 U.S. 320 (2006)). The court of appeals “d[id]

the same here, directing the district court to employ a

finer-toothed comb on remand and conduct a more

searching inquiry into which provisions of the ACA

Congress intended to be inseverable from the individual

mandate.” Ibid. The court of appeals stressed that it

was not prescribing the precise contours of the analysis;

for example, it left it to the district court’s “best judgment to determine how best to break the ACA down into

constituent groupings, segments, or provisions to be

analyzed.” Ibid. The court of appeals also did not “suggest what result will be merited ‘after a more thorough

inquiry.’ ” Id. at 69a (brackets and citation omitted).

Second, the court of appeals directed the district

court on remand to consider the federal government’s

argument that relief should be confined to redressing

the plaintiffs’ own injuries. Pet. App. 70a-72a. The

court of appeals explained that “[t]he relief the plaintiffs sought in the district court was a universal nationwide injunction: an order that totally ‘enjoined Defend-

10

ants from enforcing the [ACA] and its associated regulations.’ ” Id. at 70a (brackets omitted). Although the

district court had not granted injunctive relief, it had

entered “a judgment declaring the entire ACA ‘invalid.’ ” Ibid. The court of appeals noted that, in granting

that relief, “[t]he district court did not have the benefit

of considering” the government’s argument that “the

declaratory judgment should only reach ACA provisions that injure the plaintiffs.” Id. at 71a. The court of

appeals “agree[d]” with the federal government “that

remand is appropriate for the district court to consider”

that question of the proper scope of relief “in the first

instance.” Ibid. The court of appeals observed that the

district court “is in a far better position than [the court

of appeals] to determine which ACA provisions actually

injure the plaintiffs.” Ibid. It “place[d] no thumb on the

scale as to the ultimate outcome.” Id. at 72a.

b. Judge King dissented. Pet. App. 73a-113a. In her

view, all of the plaintiffs lacked standing to challenge

the individual mandate. Id. at 74a-91a. On the merits,

Judge King concluded that the individual mandate is

constitutional and that, in any event, it is severable from

the remainder of the ACA’s provisions. Id. at 91a-113a.

5. Following a request by a judge on the court of appeals for a poll on whether to rehear the case en banc,

the court denied rehearing. 1/29/20 19-10011 C.A. Order

2. Six of the 14 judges who voted would have granted

rehearing en banc. Ibid.

ARGUMENT

Petitioners seek interlocutory review of the court of

appeals’ decision vacating the district court’s partial final judgment in substantial part and remanding for further proceedings. Immediate review is unwarranted in

the case’s present posture because the court of appeals

11

did not definitively resolve any question of practical

consequence. The court concluded only that the plaintiffs have standing to challenge the individual mandate,

26 U.S.C. 5000A(a), and that the mandate now exceeds

Congress’s constitutional authority. Neither conclusion

warrants interlocutory review in this Court. The court

of appeals’ case-specific, factbound application of standing principles does not meet this Court’s ordinary certiorari criteria. And the court’s determination that the

individual mandate is no longer valid presents no realworld exigency that might warrant immediate review

because, as all parties agree, the elimination of the monetary penalty renders the mandate either invalid (as the

Fifth Circuit held) or precatory (as petitioners argue).

Instead, petitioners principally urge the Court to

grant review (19-840 Pet. 15-19, 23-26; 19-841 Pet.

12-17, 29-34) to address a question that the court of appeals did not decide: which if any other ACA provisions

are severable from the individual mandate. The court

expressly declined to resolve that issue. Instead, it

vacated the district court’s severability ruling and

remanded for a more fine-grained analysis of severability, and for further consideration of the appropriate

scope of any relief. Petitioners offer no compelling reason for this Court to short-circuit the lower-court litigation by granting review now to address severability and

the scope of relief in the first instance, without the benefit of decisions from the lower courts on those issues.

And granting review in the case’s current posture would

require the Court to confront threshold questions of the

existence and scope of petitioners’ appellate standing to

challenge the Fifth Circuit’s decision. Those questions

might not arise, or at a minimum might be simplified, in

12

review of a final Fifth Circuit decision following the proceedings on remand. Any eventual review in this Court

would thus be better facilitated by allowing the lower

courts to complete their own consideration of those

questions.

1. The court of appeals determined that both the individual plaintiffs and the State plaintiffs have standing

to challenge the individual mandate. Pet. App. 19a-39a.

Petitioners disagree with those determinations. See

19-840 Pet. 19-20; 19-841 Pet. 23-25. But they offer no

reason why that case-specific application of Article III

principles to these plaintiffs and circumstances independently warrants plenary review at all, let alone in

the case’s current interlocutory posture.

As to the individual plaintiffs, the district court found

that “the undisputed evidence showed that the individual mandate caused” them concrete injuries—including

a “financial injury of buying [health] insurance.” Pet.

App. 23a. The Fifth Circuit agreed, explaining that

“[r]ecord evidence supports” the district court’s finding

that the individual plaintiffs purchased insurance in order to comply with the individual mandate, and the intervenor States had “fail[ed] to point to any evidence

contradicting” that finding. Id. at 24a; see id. at 24a-26a.

Petitioners do not appear to dispute in this Court that

the financial cost of complying with the individual mandate by buying insurance constitutes an Article III

injury-in-fact. Instead, they contend (19-840 Pet. 20;

19-841 Pet. 23-24) that the individual plaintiffs could

have chosen to ignore the mandate without facing a

financial penalty. But the court of appeals found it sufficient that “the record in the instant case contains

undisputed evidence” that the individual plaintiffs “fe[lt]

compelled by the individual mandate to buy insurance”

13

and that “they bought insurance solely for that reason.”

Pet. App. 29a-30a. That case-specific determination

does not warrant interlocutory review in this Court.

The court of appeals also concluded that the State

plaintiffs have standing. Pet. App. 32a-39a. Petitioners

dispute that conclusion as well, 19-840 Pet. 20-21; 19-841

Pet. 25-27, but they again identify no reason why it warrants interlocutory review. To the contrary, as the

court of appeals emphasized, its analysis of whether the

State plaintiffs have standing has no practical bearing

on the district court’s jurisdiction to decide the validity

of the individual mandate. Pet. App. 32a n.26. The court

of appeals observed that, “even if the state plaintiffs did

not have standing, this case could still proceed because

the individual plaintiffs have standing.” Ibid. The question whether the State plaintiffs also have standing thus

would not affect the existence of a case or controversy

unless this Court were to grant review of, and reverse,

the Fifth Circuit’s conclusion that the individual plaintiffs have standing. See, e.g., Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n.2

(2006); Bowsher v. Synar, 478 U.S. 714, 721 (1986).

Conversely, as the court of appeals additionally

noted, its conclusion that the State plaintiffs have

standing means that, “[e]ven if the individual plaintiffs

did not have standing, this case could still proceed.”

Pet. App. 32a n.25. Neither of the Fifth Circuit’s rulings

on the plaintiffs’ standing would affect the lower courts’

jurisdiction to adjudicate the merits unless this Court

reviews and reverses both. And although the existence

and nature of the plaintiffs’ asserted injuries bear on

the proper scope of any judicial relief, the court of

appeals has already specifically directed the district court

to examine that issue on remand. See id. at 70a-72a.

14

Petitioners identify no reason for this Court to undertake that fact-dependent inquiry in the first instance.

2. The only conclusion that the Fifth Circuit reached

on the merits was that Congress’s elimination of the

monetary penalty (as of January 1, 2019) for noncompliance with the mandate precludes sustaining the mandate as a tax. Pet. App. 39a-52a. That conclusion also

does not warrant this Court’s review. To be sure, lowercourt decisions holding federal statutes invalid often do

warrant certiorari, see 19-840 Pet. 15 (collecting cases),

even absent a lower-court conflict. But further review

is unwarranted here because the court of appeals and

petitioners agree that the individual mandate no longer

subjects any individual to any concrete consequence.

The Fifth Circuit held that the “saving construction”

of the individual mandate this Court adopted in

National Federation of Independent Business v. Sebelius,

567 U.S. 519 (2012)—as an exercise of Congress’s taxing

power—“is no longer available” in light of Congress’s

elimination of the shared-responsibility payment. Pet.

App. 44a. Petitioners agree that the individual mandate

is no longer backed by any concrete sanction for noncompliance, and they defend the individual mandate’s

continuing validity on the ground that it is “simply precatory.” 19-840 Pet. 21. The intervenor States argue

that the mandate now leaves individuals free to

“cho[ose] between having health insurance and not having health insurance—without paying any tax if they

make the latter choice.” Ibid. The House similarly

asserts that “amended Section 5000A * * * allow[s]

individuals to ‘choose not to enroll in health coverage

once the penalty for doing so is no longer in effect.’ ”

19-841 Pet. 20 (brackets and citation omitted).

15

Thus, although the court of appeals and petitioners

draw different legal conclusions from the elimination of

the monetary penalty, it is common ground that noncompliance with the individual mandate no longer carries any significant real-world consequence. On either

view of the merits—i.e., whether the elimination of the

shared-responsibility payment renders the individual

mandate now invalid, or valid but merely precatory—

the question of the mandate’s validity is not itself a matter of any practical urgency. No exigency exists that

warrants granting interlocutory review to decide that

issue alone.

3. Instead, petitioners principally contend that

immediate review is warranted to address a question the

court of appeals did not decide. They urge this Court

(19-840 Pet. 15-19, 23-26; 19-841 Pet. 12-17, 29-34) to

grant certiorari to determine, assuming the individual

mandate is now invalid, which if any other ACA provisions are severable from it. But that question does not

warrant review in the case’s present posture because

the court of appeals expressly declined to resolve it.

a. The only court below to address the severability

issue was the district court, which concluded that all of

the ACA’s provisions are inseverable from the individual mandate. Pet. App. 165a; see id. at 204a-231a. But

the court of appeals found the district court’s severability analysis inadequate and accordingly vacated the district court’s decision on that issue. Id. at 59a-68a. The

Fifth Circuit did not render any determination on the

ultimate issue of severability. Instead, it remanded for

the district court to conduct a more thorough analysis

addressing the deficiencies the court of appeals identified. Id. at 68a-70a. The Fifth Circuit instructed the

district court “to employ a finer-toothed comb on

16

remand,” to “conduct a more searching inquiry into which

provisions of the ACA Congress intended to be inseverable,” and to provide a more “careful, precise explanation” of its conclusions. Id. at 68a, 70a. The court of

appeals expressed no opinion on the ultimate answer,

disclaiming any “suggest[ion]” of “what result will be

merited ‘after a more thorough inquiry.’ ” Id. at 69a

(brackets and citation omitted). It also reserved judgment on various subsidiary issues, such as “how best to

break the ACA down into constituent groupings,” which

it entrusted to the district court to decide “ ‘in the first

instance.’ ” Id. at 68a-69a (citation omitted).

The court of appeals’ decision declining to resolve

the severability question does not warrant this Court’s

review at this juncture. As the case comes to this Court,

no operative lower-court ruling exists on severability.

As “a court of review, not of first view,” United States

v. Stitt, 139 S. Ct. 399, 407 (2018) (citation omitted), this

Court ordinarily does not consider in the first instance

questions the court below has not decided. That general

rule applies with full force here. If the Court were to

grant review of the severability question now, it would

have to confront the severability of statutory provisions

spanning 900 pages without the benefit of any decision

from the court of appeals on that question, or of a decision from the district court applying the more granular

analysis that the court of appeals prescribed. The appropriate course is instead to defer any review in this

Court until after the district court has completed its

reassessment of severability on remand and the court

of appeals has reviewed that determination.

That approach not only will ensure that the Court

has the benefit of the lower courts’ considered views,

17

but it also may narrow the scope of the severability issue ultimately presented to this Court. In addition to

directing the district court to revisit the severability issue on remand, the Fifth Circuit also directed that court

to consider the government’s argument that relief

should be limited to those applications of particular

ACA provisions necessary to redress the plaintiffs’ injuries. Pet. App. 71a; see Gov’t C.A. Br. 26-29. A proper

threshold analysis of which, if any, ACA provisions

other than the individual mandate the plaintiffs have

standing to challenge may obviate the need to address

provisions that do not cause the plaintiffs in this case

any cognizable injury. Courts generally “have no business answering” questions about the validity of provisions that concern only “the rights and obligations of

parties not before the Court.” Printz v. United States,

521 U.S. 898, 935 (1997); see Murphy v. National Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1487 (2018)

(Thomas, J., concurring). Deferring review until the litigation in the lower courts is complete thus may help to

streamline this Court’s eventual consideration if and

when it considers the severability issue and to avoid a

partially advisory opinion in the meantime.

b. Petitioners’ contrary arguments lack merit. They

broadly contend that the general rule against resolving

issues not addressed by the decision below should not

apply at all because severability is a legal issue. The

intervenor States observe (19-840 Pet. 17) that severability presents a “legal question” that does not require

“further factfinding.” The House likewise contends

(19-841 Pet. 14) that a remand is unwarranted because

severability “is a pure question of law.” But this Court’s

ordinary practice of declining to resolve issues the court

below has not reached applies to legal issues as well as

18

to questions of fact. See, e.g., Retirement Plans Comm.

of IBM v. Jander, No. 18-1165 (Jan. 14, 2020) (per

curiam), slip op. 3; Stitt, 139 S. Ct. at 407-408; Jennings

v. Rodriguez, 138 S. Ct. 830, 851 (2018); Hernandez v.

Mesa, 137 S. Ct. 2003, 2006-2007 (2017) (per curiam);

Expressions Hair Design v. Schneiderman, 137 S. Ct.

1144, 1151 (2017). The Court has previously remanded

for lower courts to consider an “open question” of severability in particular. Ayotte v. Planned Parenthood of

N. New Eng., 546 U.S. 320, 331 (2006); see id. at 330-331.

Moreover, in addition to severability, the Fifth Circuit also directed the district court to address the appropriate scope of any relief that is necessary to redress

the plaintiffs’ cognizable injuries. Pet. App. 70a-72a.

That analysis likely will entail a factual inquiry into the

existence and nature of the plaintiffs’ asserted injuries

stemming from particular ACA provisions. As the court

of appeals noted, the district court “is in a far better

position than [an appellate court] to determine which ACA

provisions actually injure the plaintiffs.” Id. at 71a.

Petitioners also assert (19-840 Pet. 17; 19-841 Pet.

14) that this Court should decide the severability question now, despite the absence of a Fifth Circuit ruling

on that issue, because of “uncertainty” about the ACA’s

future. The House points (19-841 Pet. 14) to the prospect that many or all other ACA provisions “may well

fall” in the course of further litigation. The intervenor

States similarly express concern (19-840 Pet. 18) that

continued litigation in the lower courts will “compound

doubts * * * about the future of important provisions

of the ACA.” But all of this was true when the plaintiffs

first filed their complaint. Now, as then, the district

court will consider the parties’ arguments about the

severability of other ACA provisions and render a final

19

decision, which can then be reviewed on appeal. The

prospect that the parties challenging the law may prevail

does not justify intervening before the district court has

ruled.

The intervenor States point (19-840 Pet. 16) to the district court’s December 2018 decision as a source of

increased uncertainty. But the district court’s partial final

judgment—which has been stayed pending appeal since

it was issued in December 2018, Pet. App. 117a-162a; see

id. at 116a—was vacated by the court of appeals’ decision, except as to the district court’s rulings that the

plaintiffs have standing and that Section 5000A’s individual mandate is invalid. The aspect of the judgment

that underlies petitioners’ assertions of uncertainty—

the portion holding Section 5000A inseverable from the

rest of the ACA—has never been in force and in any

event has now been set aside. With respect to severability of the ACA’s provisions other than the individual

mandate, the situation now is the same as it was before

the district court rendered its December 2018 ruling.

Petitioners do not suggest that this Court’s review of

the severability issue would have been warranted even

before the district court had addressed the issue. The

district court’s now-vacated severability ruling equally

does not warrant interlocutory review today.

Finally, the intervenor States observe that the federal government requested expedition of oral argument

in the Fifth Circuit in part to “help reduce uncertainty

in the healthcare sector.” 19-840 Pet. 19 (quoting Gov’t

C.A. Mot. to Expedite 2). From that request, they

extrapolate that interlocutory review in this Court must

be warranted now. Ibid. Petitioners advanced the same

argument in their motions to expedite consideration of

the petitions, see 19-840 Pet. Mot to Expedite 7; 19-841

20

Pet. Mot. to Expedite 7, which this Court denied, Order,

Nos. 19-840 & 19-841 (Jan. 21, 2020). That argument

likewise does not support interlocutory review. When

the government urged accelerating oral argument in

April 2019, the district court’s judgment that was then

under review—which had declared all provisions of the

ACA inseverable from the individual mandate—was the

only decision in the case. And even then, the government did not urge immediate intervention by this Court.

Now, in contrast, the Fifth Circuit’s decision has

made clear that neither its own ruling nor the district

court’s decision has any imminent consequences. The

court of appeals vacated the portion of the district

court’s judgment that deemed all other ACA provisions

inseverable, remanding for the district court to revisit

that question applying a more “granular approach.”

Pet. App. 59a. The Fifth Circuit’s decision also ensures

that the district court will consider on remand the government’s argument that, irrespective of the severability analysis, any relief should be limited to only what is

necessary to redress injuries to the plaintiffs. See id. at

70a-72a. That in turn makes more remote the prospect

of a ruling declaring invalid many ACA provisions that

do not injure any plaintiff in the litigation. The decision

below thus addresses the government’s previous concern.

4. Granting review in the case’s current posture

would also require this Court to confront threshold

questions of the existence and scope of petitioners’

appellate standing, which might be avoided or simplified

by deferring plenary review. Like “any person invoking

the power of a federal court,” to obtain “appellate

review” of the court of appeals’ decision, petitioners

“must demonstrate standing to do so.” Virginia House

21

of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1950-1951

(2019) (citations omitted); see Arizonans for Official

English v. Arizona, 520 U.S. 43, 64 (1997). The House

of Representatives does not have standing to seek this

Court’s review of the Fifth Circuit’s decision at all. And

serious questions exist about the scope of the intervenor

States’ appellate standing and which particular issues

they may ask this Court to adjudicate.

a. The House has no cognizable interest in this litigation. See Gov’t C.A. Opp. to House Mot. to Intervene

6-13. The House has no authority to represent the

United States, a task that the Constitution and federal

statutes vest in the Executive Branch. See, e.g., Buckley v. Valeo, 424 U.S. 1, 138-141 (1976) (per curiam);

28 U.S.C. 515-519. And the House has not identified

any “discrete,” “ ‘legally and judicially cognizable’ ”

harm to the chamber itself from a decision holding the

ACA invalid in part or in full. Bethune-Hill, 139 S. Ct.

at 1953 (citation omitted). Although the House was permitted to intervene in the court of appeals, its “status

as an intervenor below” by itself “does not confer standing sufficient to keep the case alive.” Diamond v.

Charles, 476 U.S. 54, 68 (1986). And the House’s participation in originally enacting the ACA a decade ago and

later amending it does not confer a judicially cognizable

interest. “Th[is] Court’s precedent * * * lends no support for the notion that one House of a bicameral legislature, resting solely on its role in the legislative process, may appeal on its own behalf a judgment invalidating a [legislative] enactment.” Bethune-Hill, 139 S. Ct.

at 1953; see Synar, 478 U.S. at 733 (“[O]nce Congress

makes its choice in enacting legislation, its participation

ends.”).

22

The court of appeals found it unnecessary to decide

whether the House had standing to intervene in the

appeal. Pet. App. 19a (noting that this Court’s decision

in Bethune-Hill had “call[ed] the House’s standing to

intervene into doubt”). The court “pretermit[ted] th[at]

issue,” concluding that the House could participate even

if it did not have standing because it sought the same

relief as the intervenor States, which the court had held

did have standing. Ibid. But if this Court were to conclude that the intervenor States lack standing to seek

review of any of the aspects of the court of appeals’

decision that they challenge, the Court would have to

confront whether the House may seek such review.

b. The scope of the intervenor States’ standing to

seek review of the court of appeals’ decision is unclear.

The court of appeals concluded that the intervenor

States had standing to appeal “the district court’s judgment” because that judgment, “if ultimately given

effect,” would cause them injury. Pet. App. 17a; see id.

at 17a-19a. Specifically, the Fifth Circuit found that, if

the district court’s decision declaring the entire ACA

inseverable from the individual mandate were allowed to

take effect, then the intervenor States would lose “funding that they receive under the ACA”—for example,

under the ACA’s Medicaid provisions. Id. at 17a-18a. It

also stated that the intervenor States might be hindered

in “future litigation because of the district court judgment’s potentially preclusive effect.” Id. at 17a.

But the relevant question now is whether and to what

extent the intervenor States have standing to seek

review in this Court of the court of appeals’ decision.

And the injuries the intervenor States purportedly

would have suffered if the district court’s severability

ruling had ever taken effect are now irrelevant, because

23

the court of appeals vacated that entire portion of the

district court’s judgment. The basis on which the court

of appeals held that the intervenor States had appellate

standing to raise the severability issue thus has been

eliminated.

Because no operative lower-court ruling now exists

in this case on the severability issue, it is at best unclear

on what basis the intervenor States would have appellate standing to seek review of that issue in this Court.

The court of appeals’ decision vacating the district

court’s determination on severability does not itself

appear to cause any harm to the intervenor States. To

the contrary, the district court’s decision was the source

of the injuries to the intervenor States that the court of

appeals identified, see Pet. App. 17a-19a, and those

States prevailed below in seeking to have that decision

set aside. Nor did the court of appeals render any ruling on the severability of any other ACA provisions that

“may have prospective effect on” the intervenor States.

Camreta v. Greene, 563 U.S. 692, 702 (2011); cf. id. at

702-703 (holding that a government-official defendant

could seek appellate review of court of appeals’ decision

that official had violated the plaintiff ’s constitutional

rights, even though defendant had prevailed on qualifiedimmunity grounds, given the “prospective effect” of the

court’s constitutional ruling). The court of appeals made

clear that it was not “suggest[ing]” any view on the merits of the severability issue. Pet. App. 69a.

The court of appeals did conclude that the plaintiffs

had standing to bring this suit, Pet. App. 14a-19a, and

that the individual mandate is invalid, id. at 14a-39a. It

is unclear whether the latter ruling causes the intervenor States any cognizable injury, given their position

that the mandate is “simply precatory.” 19-840 Pet. 21.

24

And neither of those two questions independently warrants review in the case’s current posture. See pp. 12-15,

supra. In any event, even if the intervenor States have

appellate standing to challenge the court of appeals’ rulings on the plaintiffs’ standing and the individual mandate’s validity, that would not necessarily enable them

to seek immediate review in this Court on the separate

severability question. “ ‘[S]tanding is not dispensed in

gross,’ ” and a party invoking federal jurisdiction “must

demonstrate standing for each claim he seeks to press.”

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352-353

(2006) (citation omitted).

c. Whatever conclusion this Court ultimately might

reach on the existence and scope of petitioners’ appellate standing, granting review in the case’s current posture would require confronting those potentially complicated threshold questions before reaching the merits.

Deferring any review in this Court until proceedings on

remand are complete and the Fifth Circuit has rendered

a final decision might avoid or significantly streamline

that inquiry. For example, if the court of appeals concludes that the ACA provisions on which the intervenor

States’ claimed injuries rest are inseverable from the

individual mandate, it may then be clear that they have

appellate standing to seek review in this Court. Conversely, if the court of appeals concludes that the intervenor States’ injuries stem exclusively from provisions

that are severable, it may be clear that they lack standing. Either way, deferring review until after the lower

courts have completed their consideration of severability could substantially simplify the issues presented to

this Court.

25

CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOSEPH H. HUNT

Assistant Attorney General

AUGUST E. FLENTJE

Special Counsel

FEBRUARY 2020