Respondents Brief — United States House of Representatives, Petitioner v. Texas, et al.

Nos. 19-840, 19-841

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------CALIFORNIA, et al.,

Petitioners,

v.

TEXAS, et al.,

Respondents.

-----------------------------------------------------------------UNITED STATES HOUSE OF REPRESENTATIVES,

Petitioner,

v.

TEXAS, et al.,

Respondents.

-----------------------------------------------------------------On Petitions For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

-----------------------------------------------------------------INDIVIDUAL RESPONDENTS’

BRIEF IN OPPOSITION

-----------------------------------------------------------------ROBERT HENNEKE

TEXAS PUBLIC

POLICY FOUNDATION

901 Congress Avenue

Austin, Texas 78701

Telephone: (512) 472-2700

rhenneke@texaspolicy.com

Counsel of Record for

Individual Respondents

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

In Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519

(2012) (“NFIB”), this Court held that 26 U.S.C. § 5000A(a)

was unconstitutional as a stand-alone command to

purchase health insurance. However, the Court then

went on to collectively construe Section 5000A as a

lawful exercise of tax powers since the payment required in subsections 5000A(b) and 5000A(c) yielded

the essential feature of any tax—it raised revenue for

the government. Congress subsequently eliminated

the payment in 2017 by reducing the amount in Section 5000A(c) to zero dollars, which left the individual

mandate standing alone as an unconstitutional command to participate in commerce. The questions presented are:

1.

Whether, in light of this Court’s ruling in

NFIB, 26 U.S.C. § 5000A(a) exceeds the

constitutional powers of Congress.

2.

Whether, if 26 U.S.C. § 5000A(a) is invalid, the provision is severable from the

remainder of the Patient Protection and

Affordable Care Act.

3.

Whether NFIB resolved the question of

Individual Respondents’ standing to challenge the constitutionality of the individual mandate provision in 26 U.S.C.

§ 5000A(a).

ii

RELATED PROCEEDINGS

The proceedings directly related to this opposition

to the petitions for a writ of certiorari are:

United States Court of Appeals for the Fifth

Circuit:

Texas, et al. v. United States, et al., No. 1910011 (Dec. 18, 2019).

United States District Court for the Northern

District of Texas:

Texas, et al. v. United States, et al., No.

4:18-cv-167-O (Dec. 30, 2018).

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................

i

RELATED PROCEEDINGS ..................................

ii

TABLE OF AUTHORITIES ...................................

v

OPINIONS BELOW ...............................................

1

JURISDICTION .....................................................

1

STATEMENT..........................................................

1

REASONS FOR DENYING THE PETITION .......

4

I.

THIS CASE DOES NOT PRESENT A COMPELLING REASON OR AN UNUSUAL

CIRCUMSTANCE TO GRANT CERTIORARI, PARTICULARLY AHEAD OF JUDGMENT ...........................................................

6

A. Because the decision below lacks a remedy,

there is no sufficiently compelling reason to grant certiorari at this time .......

6

B. While the Fifth Circuit’s remand falls

well within the accepted and usual course

of judicial proceedings, a premature grant

of certiorari does not..............................

8

1. This Court rarely grants certiorari

on questions that have not yet been

addressed by the court below ...........

9

2. Courts of appeals regularly remand

a case to a district court for further

consideration .................................... 11

iv

TABLE OF CONTENTS—Continued

Page

II. CERTIORARI IS ALSO IMPROPER BECAUSE THIS CASE INVOLVES ONLY

STRAIGHTFORWARD APPLICATION OF

SETTLED LAW ........................................... 15

A. This Court already resolved the issue of

an individual’s standing to challenge

the individual mandate in NFIB .......... 15

1. This Court considered and implicitly decided private plaintiffs’

standing in NFIB ............................ 16

2. The individual respondents’ circumstances and arguments are

nearly identical to those of the private plaintiff in NFIB ..................... 21

B. The Fifth Circuit followed this Court’s

unambiguous, directly-on-point precedent in NFIB to invalidate the individual mandate ........................................... 22

C. In deciding severability, the courts below need only apply this Court’s settled

precedent ............................................... 27

CONCLUSION .......................................................

31

v

TABLE OF AUTHORITIES

Page

CASES:

Abbott v. Veasey,

137 S.Ct. 612 (2017) ................................................10

Alaska Airlines v. Brock,

480 U.S. 678 (1987) ..................................... 27, 28, 30

Anonymous v. Omnicorp Grp., Inc.,

852 F.3d 195 (2d Cir. 2017) ............................... 13, 14

Brotherhood of Locomotive Firemen

& Enginemen v. Bangor & A. R. Co.,

389 U.S. 327 (1967) .................................................11

Carter v. Bigelow,

787 F.3d 1269 (10th Cir. 2015) ................................14

City & Cty. of S.F. v. Trump,

897 F.3d 1225 (9th Cir. 2018) ..................................13

Cutter v. Wilkinson,

544 U.S. 709 (2005) ...................................................9

Dick v. N.Y. Life Ins. Co.,

359 U.S. 437 (1959) ...................................................4

Douglass v. Convergent Outsourcing,

765 F.3d 299 (3d Cir. 2014) .....................................14

DSS Tech. Mgmt. v. Apple, Inc.,

885 F.3d 1367 (Fed. Cir. 2018) ................................11

EEOC v. BNSF Ry. Co.,

902 F.3d 916 (9th Cir. 2018) ....................................14

Florida v. U.S. Dep’t of Health & Human Servs.,

648 F.3d 1235 (11th Cir. 2011) ................................18

vi

TABLE OF AUTHORITIES—Continued

Page

Florida v. U.S. Dep’t of Health & Human Servs.,

780 F. Supp. 2d 1256 (N.D. Fla. 2011) ....................18

Florida v. U.S. Dep’t of Health & Human Servs.,

No. 3:10-cv-91-RV/EMT (N.D. Fla. Nov. 10, 2010) .... 17, 18

Free Enterprise Fund v. Public Co.

Accounting Oversight Bd.,

561 U.S. 477 (2010) ........................................... 27, 28

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

240 U.S. 251 (1916) .................................................10

Harvey E. Yates Co. v. Powell,

98 F.3d 1222 (10th Cir. 1996) ..................................12

Hollingsworth v. Perry,

558 U.S. 183 (2010) .................................................14

Huch v. United States,

439 U.S. 1007 (1978)................................................11

INS v. Chadha,

462 U.S. 919 (1983) .................................................30

Khanh Phuong Nguyen v. United States,

539 U.S. 69 (2003) ...................................................14

King v. Burwell,

135 S.Ct. 2480 (2015) ..............................................29

Lewis v. Casey,

518 U.S. 343 (1996) ........................................... 16, 17

Marks v. United States,

430 U.S. 188 (1977) .................................................24

Maryland v. Balt. Radio Show, Inc.,

338 U.S. 912 (1950) ............................................. 9, 10

vii

TABLE OF AUTHORITIES—Continued

Page

Murphy v. NCAA,

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

National Collegiate Athletic Assn. v. Smith,

525 U.S. 459 (1999) ...................................................9

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ......................................... passim

New York v. United States,

505 U.S. 144 (1992) .................................................30

Nyland v. Moore,

216 F.3d 1264 (11th Cir. 2000) ................................13

Railroad Retirement Bd. v. Alton R. Co.,

295 U.S. 330 (1935) ........................................... 27, 28

Spears v. United States,

555 U.S. 261 (2009) .................................................12

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ...................................................16

Texas v. United States,

945 F.3d 355 (5th Cir. 2019) ....................................12

The Conqueror,

166 U.S. 110 (1897) .................................................10

Toyota Motor Sales, U.S.A., Inc. v. Tabari,

610 F.3d 1171 (9th Cir. 2010) ..................................13

United States v. Stitt,

139 S.Ct. 399 (2018) ..................................................9

viii

TABLE OF AUTHORITIES—Continued

Page

U.S. Dep’t of Health and Human Servs. v. Florida,

567 U.S. 519 (2012) ........................................... 17, 19

Va. Military Inst. v. United States,

508 U.S. 946 (1993) ....................................... 9, 10, 13

STATUTES AND RULES:

26 U.S.C.

§ 5000A ............................................................ passim

§ 5000A(a)............................................................ 2, 15

§ 5000A(b)........................................................ passim

§ 5000A(b)(1) .............................................................2

§ 5000A(c) ........................................................ passim

§ 5000A(e) ................................................................20

§ 5000A(g)(1) .............................................................2

28 U.S.C.

§ 1254(1) ....................................................................1

§ 1291.........................................................................1

42 U.S.C.

§ 18091(2)(I) ........................................................ 1, 29

Sup. Ct. R.

10 ....................................................................... 4, 6, 8

10(a) ..................................................................... 8, 14

10(c) ................................................................... 16, 23

Affordable Care Act, 124 Stat. 119..................... passim

Tax Cuts and Jobs Act, 131 Stat. 2054 ........................2

ix

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES:

Cong. Budget Office, Key Issues in Analyzing

Major Health Insurance Proposals 53 (Dec.

2008) ........................................................................17

Cong. Budget Office, Repealing the Individual

Health Insurance Mandate: An Updated Estimate 1 (Nov. 2017) ...................................................22

The White House, Office of the Press Secretary,

Official Transcript of News Conference by President Obama, July 22, 2009, https://obama

whitehouse.archives.gov/realitycheck/the_press_

office/News-Conference-by-the-President-July22-2009 ....................................................................28

The White House, Office of the Press Secretary,

Official Transcript of Remarks by President

Obama at Health Care Reform Town Hall,

July 23, 2009, https://obamawhitehouse.archives.

gov/the-press-office/remarks-president-healthcare-reform-town-hall .............................................29

The White House, Office of the Press Secretary,

Official Transcript of Remarks of President

Barack Obama, Address to Joint Session of

Congress, February 24, 2009, https://obama

whitehouse.archives.gov/the-press-office/remarkspresident-barack-obama-address-joint-sessioncongress ...................................................................29

1

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit will be reported at 945 F.3d 355

(5th Cir. 2019). The relevant orders and partial final

judgment of the United States District Court for the

Northern District of Texas are reported at 340 F. Supp. 3d

579 and 352 F. Supp. 3d 665.

------------------------------------------------------------------

JURISDICTION

The Court of Appeals had jurisdiction over Petitioners’ appeal of the District Court’s partial final judgment under 28 U.S.C. § 1291. The judgment of the

Court of Appeals was entered on December 18, 2019.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

------------------------------------------------------------------

STATEMENT

Congress passed in 2010 the Patient Protection

and Affordable Care Act (“Affordable Care Act” or “the

Act”), 124 Stat. 119. The Act describes the individual

mandate of 26 U.S.C. § 5000A(a), which commands the

majority of Americans to maintain minimum essential

health insurance coverage, as “essential.” 42 U.S.C.

§ 18091(2)(I).

The individual mandate requires that “every applicable individual shall for each month beginning after

2013 ensure that the individual, and any dependent of

2

the individual who is an applicable individual, is covered under minimum essential coverage.” 26 U.S.C.

§ 5000A(a). From 2014 until 2019, individuals who

were subject to the mandate and failed to comply with

it were then obligated to make a “shared responsibility

payment” to the Internal Revenue Service. 26 U.S.C.

§ 5000A(b)(1). The Act describes the payment as a

“penalty,” 26 U.S.C. § 5000A(c), and provides that it

“shall be assessed and collected in the same manner”

as tax penalties. 26 U.S.C. § 5000A(g)(1).

In 2010, twenty-six states, the National Federation of Independent Business, and multiple individuals

challenged the constitutionality of the individual mandate. In NFIB, this Court repudiated the notion that

the individual mandate was a lawful exercise of the

congressional power to regulate interstate commerce.

567 U.S. 519, 562 (2012). However, by reading the individual mandate, 26 U.S.C. § 5000A(a), in conjunction with the shared responsibility payment, 26 U.S.C.

§ 5000A(b), this Court adopted a saving construction

that treated the penalty together with the mandate as

a constitutional exercise of Congress’s power to tax. Id.

at 544-46.

In 2017, President Trump signed the Tax Cuts and

Jobs Act, 131 Stat. 2054, which reduced the Act’s

shared responsibility payment to zero without regard

to income. 26 U.S.C. § 5000A(c). In 2018, a coalition of

States, led by Texas, and Neill Hurley and John Nantz,

two individuals who are subject to the mandate (“Respondents”), filed suit in the United States District

Court for the Northern District of Texas. Pet. App. 10a.

3

Respondents argued that the savings construction utilized by the Court in NFIB to construe the mandate as

a tax no longer applied, thus leaving the mandate as

an unconstitutional command to participate in commerce by purchasing insurance. Id. at 10a-11a. Respondents also argued that the individual mandate

was inseverable from the remainder of the Affordable

Care Act. Id. at 10a. The District Court agreed, holding

that the individual mandate “is no longer fairly readable as an exercise of Congress’s Tax Power and continues to be unsustainable under Congress’s Interstate

Commerce Power.” Id. at 204a. The District Court also

held the individual mandate inseverable from the

law’s remaining provisions and invalidated the entire

Act. Id. at 231a. The District Court entered a partial

final summary judgment granting declaratory relief.

Id. at 117a. Because its ruling affected only one of five

claims asserted in the operative complaint, the district

court entered an order staying further litigation and

the effect of its judgment pending appeal. Id.

The United States Court of Appeals for the Fifth

Circuit affirmed the District Court’s partial final judgment in part, vacated it in part, and remanded to the

District Court for further proceedings. Id. at 72a. The

Fifth Circuit affirmed the District Court’s ruling that

the individual mandate is unconstitutional and “was

saved from unconstitutionality” in NFIB only “because

it could be read together with the shared responsibility

payment as an option to purchase insurance or pay a

tax.” Id. at 51a. The Fifth Circuit also affirmed the District Court’s ruling that the mandate can no longer be

4

read as a tax because the shared responsibility payment no longer produces revenue, so it must now be

read in the most straightforward way—as a command

to purchase insurance. Id. at 51a-52a. The Fifth Circuit

vacated the District Court’s ruling on severability and

remanded to the District Court to analyze in more complete detail which provisions, if any, could be severed

from the mandate. Id. at 68a-69a.

------------------------------------------------------------------

REASONS FOR DENYING THE PETITION

This Court’s longstanding rules and precedent

show this case is not appropriate for review at this

time. Review “is not a matter of right, but of judicial

discretion.” Sup. Ct. R. 10. While the considerations

announced in Rule 10 are “neither controlling nor

fully measuring [of ] the Court’s discretion,” id., distinguished members of this Court have counseled that

“laxity by the Court in respecting its own rules is

bound to stimulate petitions for certiorari with which

the Court should never be burdened.” Dick v. N.Y. Life

Ins. Co., 359 U.S. 437, 460 (1959) (Frankfurter, J., dissenting). The instant case represents just such an unwarranted burden both because the Fifth Circuit’s

decision was correct and because there remains considerable work to be done by the lower courts.

The United States Court of Appeals for the Fifth

Circuit correctly concluded that Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519 (2012) (“NFIB”) required

it to affirm the individual mandate provision of the

5

Affordable Care Act as unconstitutional. In NFIB,

this Court held that a stand-alone command to purchase health insurance is unconstitutional. However,

the Court then went on to collectively construe Section

5000A as a lawful exercise of the taxing power, as the

payment required in subsections 5000A(b) and 5000A(c)

yielded the essential feature of any tax by raising revenue for the government. In 2017, Congress reduced

the amount in Section 5000A(c) to $0, which left the

individual mandate standing alone as an unconstitutional command to participate in commerce. Both the

appellate court’s and trial court’s analyses of the individual mandate adhere to the binding precedent of

NFIB.

To justify premature review, Petitioners assume

the role of Chicken Little, claiming “the sky is falling”

despite the trial court stay having been in place for

well over a year. But the “crippling uncertainty” alleged by Petitioners has yet to materialize. Nor is it

likely to manifest while this case is remanded to the

trial court to resolve the severability issue.

6

I.

THIS CASE DOES NOT PRESENT A COMPELLING REASON OR AN UNUSUAL CIRCUMSTANCE TO GRANT CERTIORARI,

PARTICULARLY AHEAD OF JUDGMENT.

The Rules of this Court state unequivocally that

“[a] petition for a writ of certiorari will be granted

only for compelling reasons.” Sup. Ct. R. 10 (emphasis

added). But no such compelling reason exists here. The

District Court’s stay remains in place. See Pet. App.

114a. And because there is no final ruling on scope of

remedy, the decision below presents no immediate impact, either on the parties to this case or the public in

general. Far from having departed from the normal

course of proceedings, the Fifth Circuit’s decision to remand for further proceedings about remedy represents

a completely unremarkable occurrence that happens

regularly in courts of appeals across the country. The

only real departure from the normal course of litigation in this case is Petitioners’ premature request for

certiorari, not the routine actions of either the District

Court or the Fifth Circuit.

A. Because the decision below lacks a remedy, there is no sufficiently compelling

reason to grant certiorari at this time.

In December 2018, the District Court entered a

partial final judgment on Respondents’ claim for declaratory relief regarding one of their five claims, Pet.

7

App. 116a,1 but also stayed that judgment pending

appeal, id. at 117a-162a. Notably, the District Court

justified this stay in light of the risk that “many everyday Americans would otherwise face great uncertainty

during the pendency of appeal.” Id. at 162a. On appeal,

the Fifth Circuit upheld the District Court’s invalidation of the individual mandate without lifting the stay,

but then chose to vacate and remand with regard to

the issues of severability and the proper scope of judicial relief. Id. at 52a-72a. Accordingly, neither decision

has had a real-world impact thus far, and the status

quo will remain until this case is finally resolved.

Since the District Court’s order was entered over

a year ago, health insurance markets have continued

to function under the Act just as they did before the

judgment. Ignoring this, Petitioners now predict that

“uncertainty” created by the decision below will result

in widespread chaos as their justification for this Court

to grant certiorari. See House Pet. at 4 (“Paralyzing uncertainty now hangs over the ACA.”); States Pet. at 16

(“The uncertainty created by this litigation is especially problematic because individuals, businesses, and

state and local governments make important decisions

in reliance on the ACA.”). However, Petitioners do not

cite to any immediate consequence flowing from the

Fifth Circuit’s decision. Furthermore, the continuing

stay was specifically targeted toward ameliorating any

“uncertainty.” Thus, Petitioners’ attempt to conjure

up a “compelling reason” for immediate review by this

1

Unless otherwise indicated, this response refers to the appendix to the petition for a writ of certiorari in No. 19-840.

8

Court falls short. That this case has generated interest

in the media and in politics does nothing to change the

reality that its current posture is poorly suited for review by this Court.

Petitioners also now contend that the mandate

presents a pressing, real-world concern, even after

consistently arguing throughout the litigation that the

Act’s lack of a penalty post-2017 means it harms no

one. Indeed, Petitioners continue to press this argument even while petitioning this Court for certiorari.

See States Pet. at 3 (“Section 5000A is merely a precatory provision that [at most] encourages Americans to

buy health insurance but does not compel anyone to do

anything.”); House Pet. at 24 (“there is no threat, much

less a credible one, that the individual respondents

will be subject to government enforcement of Section

5000A.”). This provides one more reason to deny certiorari at this early stage of the litigation.

B. While the Fifth Circuit’s remand falls well

within the accepted and usual course of

judicial proceedings, a premature grant

of certiorari does not.

This Court’s Rule 10 provides that among the considerations governing the decision of whether to grant

certiorari is a court of appeals having “so far departed

from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court,

as to call for an exercise of this Court’s supervisory

power.” Sup. Ct. R. 10(a). But the only real departure

9

from the accepted and usual course of judicial proceedings is what the Petitioners request from this Court—

a premature grant of certiorari before the lower court

has finally resolved all legal issues in the case. By contrast, the Fifth Circuit’s decision to remand this case

to the District Court with guidance on what legal

standards to apply is a normal and routine undertaking.

1. This Court rarely grants certiorari

on questions that have not yet been

addressed by the court below.

It is exceedingly rare for this Court to grant certiorari in order to address legal issues not decided below.

See National Collegiate Athletic Assn. v. Smith, 525

U.S. 459, 470 (1999) (stating that “we do not decide in

the first instance issues not decided below”); see also

Va. Military Inst. v. United States, 508 U.S. 946 (1993)

(Scalia, J., concurring in the denial of the petition for

writ of certiorari) (“We generally await final judgment

in the lower courts before exercising our certiorari jurisdiction”). It has long been recognized that denying

the writ is appropriate when “the judgment of the

lower court may not be final.” Maryland v. Balt. Radio

Show, Inc., 338 U.S. 912, 917-18 (1950). And this makes

perfect sense, given that this Court is “a court of review, not of first view.” See United States v. Stitt, 139

S.Ct. 399, 407 (2018) (quoting Cutter v. Wilkinson, 544

U.S. 709, 718, n.7 (2005)).

10

The well-founded reticence to grant certiorari

prior to the issuance of a final decree, absent extraordinary circumstances not present here, goes back well

over a century. See Hamilton-Brown Shoe Co. v. Wolf

Bros. & Co., 240 U.S. 251, 258 (1916) (observing that

“except in extraordinary cases, the writ is not issued

until final decree”); The Conqueror, 166 U.S. 110, 113

(1897) (observing that certiorari “is ordinarily only issued, after a final decree in the Court of Appeals”).

That this Court possesses the power to hear this case

now does not mean that it would be prudent for it to

do so. See Abbott v. Veasey, 137 S.Ct. 612, 613 (2017)

(Roberts, C.J., respecting the denial of certiorari) (“Although there is no barrier to our review, [one] claim is

in an interlocutory posture, having been remanded for

further consideration. As for [that] claim, the District

Court has yet to enter a final remedial order. . . . The

issues will be better suited for certiorari review at that

time.”); see also Va. Military Inst., 508 U.S. at 946

(Scalia, J., concurring in the denial of the petition for

writ of certiorari) (stating that it was “prudent” to await

final judgment in the lower courts before granting certiorari since doing so would not “preclude [Petitioners]

from raising the same issues in a later petition, after

final judgment has been rendered”).

This Court has long recognized that because

“[w]ise adjudication has its own time for ripening,” it is

often “desirable to have different aspects of an issue

further illumined by the lower courts.” Maryland v.

Balt. Radio Show, Inc., 338 U.S. 912, 918 (1950). Thus,

“because the Court of Appeals remanded the case, it is

11

not yet ripe for review by this Court” and certiorari

should thus be denied. See Brotherhood of Locomotive

Firemen & Enginemen v. Bangor & A. R. Co., 389 U.S.

327, 328 (1967).

2. Courts of appeals regularly remand

a case to a district court for further

consideration.

This is not a case that justifies deviating from this

Court’s ordinary practice of waiting to take a case until

after final judgment. Rather, the instant case features

a common, everyday occurrence in this nation’s courts

of appeals—a vacatur and remand for further proceedings about remedy, accompanied by ample guidance on

the legal standard to be applied. See Pet. App. 52a-72a.

This cannot be considered a departure from the “accepted and usual course of judicial proceedings” that

justifies certiorari—let alone certiorari ahead of final

judgment. Cf. Huch v. United States, 439 U.S. 1007,

1012 (1978) (Rehnquist, J., dissenting from the denial

of certiorari) (arguing that it is a departure from the

accepted and usual course of judicial proceedings

where a “Court of Appeals’ opinion gives no clue to the

District Court as to where it went wrong or how it can

correct whatever mistake the Court of Appeals believes that it made”); accord DSS Tech. Mgmt. v. Apple

Inc., 885 F.3d 1367, 1377 (Fed. Cir. 2018) (Newman, J.,

dissenting) (observing that where there is an inadequate explanation to support the decision below, one

“appropriate action is . . . to remand for additional explanation”). Furthermore, as Chief Justice Roberts has

12

observed, a case that neither involves a circuit split nor

calls for an exercise of this Court’s supervisory authority typically constitutes “exactly the sort of issue that

could benefit from further attention in the courts of appeals.” Spears v. United States, 555 U.S. 261, 270 (2009)

(Roberts, C.J., dissenting). That is the circumstance

here.

The routine nature of the Fifth Circuit’s remand

to the District Court to implement its ruling on severability was addressed by Judge Elrod during oral argument: “In any other normal case, you would send it

back to the district court in the first instance to make

its best stab at trying to implement the ruling that we

made. That would be the normal proceeding in a hundred cases that we have this month.” Oral Argument

at 1:41:44, Texas v. United States, 945 F.3d 355 (5th Cir.

2019) (No. 19-10011), http://www.ca5.uscourts.gov/Oral

ArgRecordings/19/19-10011_7-9-2019.mp3. In fact, another Court of Appeals previously vacated and remanded on the issue of severability—the exact legal

question implicated in this case—without any fanfare

or controversy. See Harvey E. Yates Co. v. Powell, 98

F.3d 1222, 1240-41 (10th Cir. 1996) (vacating and remanding due to “the district court’s failure to consider

the independent validity of the other portions” of the

invalidated rule).

The Fifth Circuit also remanded in the instant

case “so that the district court may consider the federal

defendants’ new arguments as to the proper scope of

relief in this case.” Pet. App. 70a. But remanding a case

for consideration of the proper scope of a remedy is not

13

a new or innovative judicial action. See, e.g., Va. Military Inst. v. United States, 508 U.S. 946 (1993) (Scalia,

J., concurring in the denial of the petition for writ of

certiorari) (arguing that this Court’s “intervention before the litigation below has come to final judgment”

would be improper where the Court of Appeals had vacated and remanded “for determination of an appropriate remedy”); City & Cty. of S.F. v. Trump, 897 F.3d

1225, 1245 (9th Cir. 2018) (vacating a nationwide injunction “to the extent that it applies outside California” and remanding to the district court “for a more

searching inquiry into whether this case justifies the

breadth of the injunction imposed”); Toyota Motor

Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171, 1182 (9th

Cir. 2010) (vacating an injunction and remanding for

reconsideration because “the district court is in a better position to assess in the first instance . . . the scope

of the remedy, if any remedy should prove to be required”).

Finally, remand by the appellate court in the instant case is appropriate because, as the Fifth Circuit

recognized and the Federal Defendants themselves

admitted, the government’s scope-of-relief arguments

were only raised for the first time on appeal. See Pet.

App. 12a-13a, 63a, 71a. It is widely recognized that

where “there is an issue that the district court did not

decide in the first instance, it is not properly before”

the Court of Appeals and should thus be “remand[ed]

for the district court’s consideration.” See Nyland v.

Moore, 216 F.3d 1264, 1266 (11th Cir. 2000); accord

Anonymous v. Omnicom Grp., Inc., 852 F.3d 195, 201

14

n.3 (2d Cir. 2017) (deciding that “[b]ecause the district

court did not reach the time-bar issue below,” the Court

of Appeals would remand rather than “decide it here

in the first instance”); Carter v. Bigelow, 787 F.3d 1269,

1282-83 (10th Cir. 2015) (remanding where “the district court did not decide the issue whether a stay to

pursue unexhausted claims is appropriate” so that the

district court could “make this determination in the

first instance”); Douglass v. Convergent Outsourcing,

765 F.3d 299, 305 n.8 (3d Cir. 2014) (declining to decide

whether certain damages should still be awarded if

there “was at most a technical breach” since this was

“for the District Court to determine in the first instance”).

When the argument first raised on appeal deals

with the scope of relief to be granted, a remand may be

especially appropriate. See EEOC v. BNSF Ry. Co., 902

F.3d 916, 929 n.13 (9th Cir. 2018) (remanding for consideration of the argument that the court “should cabin

the scope of any injunction to the Ninth Circuit” so that

this issue could “be considered in the first instance by

the district court”). Because that is exactly the scenario

in this case, the Fifth Circuit’s remand falls well within

“the accepted and usual course of judicial proceedings”

that falls outside the scope of this Court’s “supervisory

power,” Sup. Ct. R. 10(a); Hollingsworth v. Perry, 558

U.S. 183, 196 (2010) (per curiam) (describing circumstances where that power is appropriate); Khanh Phuong Nguyen v. United States, 539 U.S. 69, 73 (2003)

(same).

15

II.

CERTIORARI IS ALSO IMPROPER BECAUSE

THIS CASE INVOLVES ONLY STRAIGHTFORWARD APPLICATION OF SETTLED LAW.

This case presents questions of federal law that

are well-settled. Indeed, this Court has already decided the exact issues Petitioners now ask it to consider. A straightforward application of this Court’s

holdings in NFIB, as well as Murphy v. NCAA, 138

S.Ct. 1461 (2018) (“Murphy”), will continue to guide

the courts below in deciding this case. Yet Petitioners

ask this Court to rule on the same issues—namely,

standing and the constitutionality of the individual

mandate—that were decided eight years ago in NFIB.

Similarly, a simple application of the severability doctrine reaffirmed just two years ago in Murphy will lead

the courts to the correct result in the instant case. This

case breaks no new legal ground, and denial of the petitions for a writ of certiorari is appropriate.

A. This Court already resolved the issue of

an individual’s standing to challenge the

individual mandate in NFIB.

The majority opinion in NFIB implicitly decided

that, even absent any collateral consequences, Section

5000A(a) causes individuals to suffer an injury in fact

sufficient to confer Article III standing. The Fifth Circuit’s decision in the instant case did nothing more

than straightforwardly apply that implicit ruling to Individual Respondents that are nearly identically situated to the NFIB private plaintiffs. Accordingly, the

issue of Individual Respondents’ standing in this case

16

does not constitute the kind of unsettled question of

federal law that justifies this Court’s review. See Sup.

Ct. R. 10(c).

1. This Court considered and implicitly

decided private plaintiffs’ standing

in NFIB.

In responding to the majority’s observation that

“[t]he standing issues presented by the individual

plaintiffs are not novel” since “[t]he Supreme Court

faced a similar situation when it decided NFIB in

2012,” Pet. App. 20a, the dissenting judge below argued

that any reliance on NFIB with regard to standing is a

“violation of the Supreme Court’s ‘repeated[ ]’ command ‘that the existence of unaddressed jurisdictional

defects has no precedential effect.’ ” Id. at 85a (quoting

Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996)). But the

dissent’s argument misunderstands this Court’s rule

that “drive-by jurisdictional rulings . . . have no precedential effect.” See Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 91 (1998). As the Court made clear

in Lewis, the rule against drive-by jurisdiction deals

only with scenarios where “standing was neither challenged nor discussed” in the previous case. 518 U.S. at

352 n.2 (emphasis added). A close examination of the

history of NFIB and the decision itself shows that

though standing is not explicitly discussed, it was not

a “drive-by” ruling at all.

Standing to challenge the mandate—not the tax

penalty—was clearly both “challenged” and “discussed”

17

in NFIB. Id. The private plaintiffs specifically challenged the individual mandate throughout the pendency

of the NFIB litigation. In particular, their brief explicitly stated that, “Private Respondents are not challenging the penalty, but rather the antecedent legal duty to

purchase insurance, with which they must comply unless the mandate is invalidated.” Brief for Private Respondents on the Anti-Injunction Act at 6-7, U.S. Dep’t

of Health and Human Servs. v. Florida, 567 U.S. 519

(2012) (No. 11-398) (emphasis added). The mandate

was the target of their challenge “precisely because

they are law-abiding citizens who intend to comply

with the mandate unless it is invalidated.” Id. at 14

(emphasis in the original); see also id. at 6, 10. In support of their argument for standing, the brief further

cited a 2008 Congressional Budget Office (“CBO”) report stating that “many individuals . . . would comply

with a mandate, even in the absence of penalties, because they believe in abiding by the nation’s laws.” Id.

at 14-15 (quoting Cong. Budget Office, Key Issues in

Analyzing Major Health Insurance Proposals 53 (Dec.

2008)).

The NFIB private plaintiffs also discussed their

specific injury in fact. Specifically, they claimed in their

declarations that they would be “harmed” if they were

“required” to purchase the insurance mandated by the

Act because each would be “forced to divert financial

resources” from more important priorities. Appendix of

Exhibits in Support of Plaintiffs’ Motion for Summary

Judgment, Florida v. U.S. Dep’t of Health & Human

Servs., No. 3:10-cv-91-RV/EMT (N.D. Fla. Nov. 10, 2010),

18

ECF No. 80-6. In addition, as the Fifth Circuit emphasized in this case (Pet. App. 22a), each private plaintiff

declared that “[t]o comply with the individual insurance mandate, . . . I must now investigate whether and

how to rearrange my personal finance affairs.” Id.

The lower courts in NFIB expressly ruled upon

plaintiffs’ standing to challenge the mandate (as opposed to the penalty). The district court found that “the

financial expense [that they would] definitively incur

under the Act in 2014” was the cause of their need “to

take investigatory steps and make financial arrangements now to ensure compliance then,” which in turn

was “enough to show standing.” Florida v. U.S. Dep’t of

Health & Human Servs., 780 F. Supp. 2d 1256, 1271

(N.D. Fla. 2011). Importantly, the District Court made

no mention of the penalty as part of this analysis. Furthermore, when the case was appealed to the Eleventh

Circuit, the court observed that the Defendants did

“not dispute that [private] plaintiff Brown’s challenge

to the minimum coverage provision is justiciable.” Pet.

App. 22a (quoting Florida v. U.S. Dep’t of Health & Human Servs., 648 F.3d 1235, 1243 (11th Cir. 2011) (emphasis added). In other words, both the District Court

and the Eleventh Circuit considered the private plaintiffs’ standing to be based on the individual mandate,

not the penalty.

Even though these standing arguments were not

specifically addressed in the Court’s opinion in NFIB,

they were nonetheless presented to and discussed by

the Court. The critical exchange on this issue occurred

when Justice Kagan directly asked NFIB’s counsel

19

whether he “th[ought] a person who is subject to the

mandate but not subject to the penalty would have

standing.” Id. at 68. Counsel responded in the affirmative, explaining that such a person “is injured by compliance with the mandate” and further elaborating

that when “a person is required to purchase health insurance,” that constitutes “a forced acquisition of an

unwanted good” and is thus “a classic pocketbook injury.” Id. at 68-69.2 And in answering Chief Justice

Roberts’ question about why there would be “a requirement that is completely toothless,” NFIB’s counsel responded that “Congress reasonably could think that at

least some people will follow the law precisely because

it is the law.” Transcript of Oral Argument at 67, U.S.

Dep’t of Health and Human Servs. v. Florida, 567 U.S.

519 (2012) (No. 11-398).

Given the extensive history of standing being argued by counsel, addressed by the lower courts, and

questioned by the justices of this Court, it becomes

clear that the majority in NFIB actually did consider

and decide the issue even though it was not explicitly

addressed in the opinion itself. Indeed, any other reading of this Court’s decision would make no sense. First,

as the Fifth Circuit observed, “neither the individual

mandate nor the shared responsibility payment would

be assessed” until well after the NFIB litigation had

concluded. Pet. App. 21a. However, the Act specifically

2

This exchange between Justice Kagan and NFIB’s counsel

did not escape the Fifth Circuit’s notice in the instant case, as

evidenced by the court’s reliance on, and extensive quoting of,

that interaction. See Pet. App. 20a-21a.

20

exempted certain groups from the penalty that would

be imposed for noncompliance. Id. (referencing 26

U.S.C. § 5000A(e)). Accordingly, the Fifth Circuit recognized that it was only “certainly imminent that the

private plaintiffs would be subject to the individual

mandate, which applies to everyone,” as opposed to

“the shared responsibility payment, which exempts

certain people.” Id. Therefore, the only basis for standing at that time was the mandate, not the penalty that

would not even be assessed for another two years.

The acknowledgement of individual standing is

also implicit in Part III-A of NFIB. See generally 567

U.S. 519, 547-61 (2012). In response to a criticism from

Justice Ginsberg, Chief Justice Roberts explained that

he addressed the Government’s commerce power argument because “the statute reads more naturally as a

command to buy insurance than as a tax.” Id. at 574.

And in applying this more natural reading throughout

Part III-A, no reference is made to the penalty contained in § 5000A(b). Instead, the focus in Part III-A

remains squarely and exclusively on the individual

mandate, repudiating Congress’s attempt “to compel

individuals not engaged in commerce to purchase an

unwanted product.” Id. at 549. Taken together, all of

this adds up to an undeniable conclusion: Part III-A

shows that the mandate and the penalty are separate

legal provisions, and the former causes the private

plaintiffs’ injury through its compulsion to purchase

health insurance.

To reach the issues addressed in Part III-A, the

Court must have concluded that the mandate, absent

21

any penalty, conveyed standing to the private plaintiffs. Were it otherwise, the Chief Justice would have

been required to dismiss the case for lack of standing, or

at least to adhere to Justice Ginsburg’s view that there

was “no reason to undertake a Commerce Clause analysis that is not outcome determinative.” Id. at 623 n.12

(Ginsburg, J., concurring in part, concurring in the

judgment in part, and dissenting in part). But rather

than dismiss, the Court engaged in a full and thoughtful

discussion of the merits of the Government’s Commerce

Clause arguments. Accordingly, the very existence of

Part III-A speaks to the fact that this Court necessarily

resolved the private plaintiffs’ standing.

2. The individual respondents’ circumstances and arguments are nearly

identical to those of the private

plaintiff in NFIB.

As explained by the Fifth Circuit, John Nantz and

Neill Hurley both declared that they “value compliance

with [their] legal obligations” and bought insurance because they “believe that following the law is the right

thing to do.” Pet. App. 24a (quoting Individual Respondents’ declarations filed in the District Court).

Both also declared that the mandate forced them to

“divert resources” in order to obtain the health insurance mandated by the Act. As the Fifth Circuit recognized, “it is this injury—the time and money spent

complying with the statute, not the penalty for failing

to do so—that constitutes the plaintiffs’ injury.” Id. at

27a.

22

In reaching the conclusion that Individual Respondents have standing, the Fifth Circuit relied on

the same 2008 CBO report cited in the private plaintiffs’ brief in NFIB, as well as a 2017 CBO report stating that “a small number of people” would continue to

purchase insurance even without a penalty “solely because” of a desire to comply with the law. Id. at 25a

(quoting Cong. Budget Office, Repealing the Individual

Health Insurance Mandate: An Updated Estimate 1

(Nov. 2017)). Petitioners question why any individual

would be so “irrational” as to abide by the law absent a

penalty for not doing so. See House Pet. at 26. But, as

the Fifth Circuit observed, whether those that would

adhere to the mandate absent any legal consequences

includes “many individuals” or “a small number of people,” the Individual Respondents “have undisputed evidence showing that they are a part of this group.” Id.

at 25a. Indeed, the evidence supporting Nantz’s and

Hurley’s injuries was “even stronger than it was in

NFIB” since they were both compelled “to purchase insurance now as opposed to two years in the future.” Id.

at 24a. Because the Fifth Circuit did nothing more

than apply the same reasoning to the Individual Respondents’ standing in the instant case, review is not

warranted.

B. The Fifth Circuit followed this Court’s unambiguous, directly-on-point precedent in

NFIB to invalidate the individual mandate.

In arguing that the Fifth Circuit erred, Petitioners

badly misread NFIB. As the Fifth Circuit recognized,

23

the decision below “breaks no new ground,” but rather

“simply observe[d] that § 5000A[,] [which] was originally cognizable as either a command or a tax,” is now

“only cognizable as a command.” Pet. App. 51a. The appellate court merely applied this Court’s unambiguous

precedent to the exact same legal provision that had

only been altered in one important way—the zeroing

out of the penalty for noncompliance. By carefully

tracking this Court’s reasoning in NFIB, the Fifth Circuit simply applied binding law. It was not even required to apply legal precedent to somewhat dissimilar

facts, fill in jurisprudential gaps that this Court has

not directly addressed, or decide how broadly or narrowly to read this Court’s decision. In other words, with

regard to the individual mandate, this case in no way

required the Fifth Circuit to determine an “important

question of federal law that has not been, but should

be, settled,” see Sup. Ct. R. 10(c), and thus the appeal

from that decision also provides no such opportunity

for this Court.

In analyzing § 5000A, the Court held that the individual mandate could be read as either a command

for individuals to buy insurance pursuant to Congress’s power under the Commerce Clause or, alternatively, as a condition (being uninsured) that triggers a

tax under the Taxing Power. Nat’l Fed’n of Indep. Bus.

v. Sebelius, 567 U.S. 519, 561-63 (2012). But since the

provision unambiguously “states that individuals ‘shall’

maintain health insurance,” the “most straightforward

reading of the individual mandate is that it commands

individuals to purchase insurance.” Id. at 562; see also

24

id. at 574 (“[T]he statute reads more naturally as a

command to buy insurance than as a tax”). This was

further supported by the observation that “Congress

thought it could enact such a command under the Commerce Clause, and the Government primarily defended

the law on that basis.” Id. at 562. And four otherwisedissenting Justices agreed with the Chief Justice’s

straightforward reading of the provision, writing that

there was “simply no way, without doing violence to the

fair meaning of the words used,” to interpret Section

5000A as anything but a command to maintain minimum essential coverage. Id. at 662 (Scalia, J., Kennedy,

J., Thomas, J., and Alito, J., dissenting) (hereinafter

“joint dissent”) (internal citations and quotations excluded).

Accordingly, the Court held the individual mandate could not be maintained as a valid exercise of Congress’s power to regulate interstate commerce. Id. at

558 (Roberts, C.J.) (holding that because “[t]he individual mandate forces individuals into commerce precisely because they elected to refrain from commercial

activity,” it “cannot be sustained under a clause authorizing Congress to ‘regulate Commerce’ ”); id. at 649

(joint dissent) (“To be sure, purchasing insurance is

‘Commerce’; but one does not regulate commerce that

does not exist by compelling its existence.”).3 Nor could

the provision be upheld by invoking the Necessary and

3

Marks v. United States, 430 U.S. 188, 193 (1977) (holding

that where no opinion garnered five votes, the “position taken by

the Members who concurred in the judgment[ ] on the narrowest

grounds” represents the holding of the case).

25

Proper Clause. See id. at 560 (Roberts, C.J.) (such an

interpretation of the individual mandate would “vest[ ]

Congress with the extraordinary ability to create the

necessary predicate to the exercise of an enumerated

power,” and this sort of “expansion of federal power is

not a ‘proper’ means for making those reforms effective”); id. at 653 (joint dissent) (“the Commerce Clause,

even when supplemented by the Necessary and Proper

Clause, is not carte blanche for doing whatever will

help achieve the ends Congress seeks”).

However, citing this Court’s “duty to construe a

statute to save it, if fairly possible,” id. at 574, a different majority went on to collectively analyze § 5000A

under Congress’s power to “lay and collect Taxes,” id.

at 561-75. Finding that such a “saving construction”

was indeed possible, id. at 575, this Court upheld the

validity of the individual mandate and shared responsibility payment since “the Constitution permits such

a tax,” id. at 574. Crucial to finding that § 5000A could

be read as a legitimate exercise of Congress’ taxing

power was the Court’s observation that the shared responsibility payment “looks like a tax in many respects.” Id. at 563. The Court pointed to four particular

reasons for this interpretation. First and most importantly, the provision yielded “the essential feature

of any tax: It produce[d] at least some revenue for the

Government.” Id. at 564. Second, the penalty was also

“paid into the Treasury by ‘taxpayer[s]’ when they file

their tax returns.” Id. at 563. Third, “its amount [was]

determined by such familiar factors as taxable income,

number of dependents, and joint filing status.” Id.

Fourth, “[t]he requirement to pay [was] found in the

26

Internal Revenue Code and enforced by the IRS, which

. . . collect[ed] it in the same manner as taxes.” Id. at

563-64 (internal quotation marks omitted). Following

the change in the Act in 2017, these reasons no longer

apply.

In construing the individual mandate in this case,

the Fifth Circuit walked through, step-by-step, Part III

of the NFIB opinion. The court first observed that after

the shared responsibility payment was set to zero,

“[t]he four central attributes that once saved the statute because it could be read as a tax no longer exist.”

Pet. App. 44a. Since “the provision no longer yields the

essential feature of any tax because it does not produce

at least some revenue for the Government,” it also

now “necessarily lacks the three other characteristics

that once rendered the provision a tax.” Id. at 44a-45a.

Therefore, “the provision’s saving construction is no

longer available,” id. at 44a, and thus it is “no longer

‘fairly possible’ to save the mandate’s constitutionality

under Congress’ taxing power,” id. at 45a.

Given this, “[t]he proper application of NFIB to the

new version of the statute” is now what five justices on

this Court “said was the ‘most straightforward’ reading

of that provision: a command to purchase insurance.”

Id. at 45a. Accordingly, the Fifth Circuit correctly held

the mandate to be “unconstitutional because, under

NFIB, it finds no constitutional footing in either the Interstate Commerce Clause or the Necessary and Proper

Clause.” Id. at 45a. Because its ruling meticulously followed this Court’s settled precedent and careful reasoning as announced in NFIB, the petitions for a writ

of certiorari should be denied.

27

C. In deciding severability, the courts below need only apply this Court’s settled

precedent.

Since the Fifth Circuit properly applied this Court’s

precedent in holding the individual mandate unconstitutional, the next step is for the District Court on remand to thoroughly analyze whether this provision is

severable from the remainder of the Act. But in determining the issue of severability, the courts below need

only apply this Court’s well-established precedent.

This is another straightforward undertaking, as this

Court’s doctrines on severability have been repeatedly

and consistently applied for generations. See, e.g., Free

Enterprise Fund v. Public Co. Accounting Oversight

Bd., 561 U.S. 477 (2010); Alaska Airlines, Inc. v. Brock,

480 U.S. 678 (1987); Railroad Retirement Bd. v. Alton

R. Co., 295 U.S. 330 (1935). In fact, this Court recited

its precedent and reaffirmed the proper severability

analysis just two years ago. See Murphy, 138 S.Ct. at

1482-484.4

In determining whether an unconstitutional provision can be severed from the remainder of the law,

a court must inquire “whether the law remains ‘fully

operative’ without the invalid provisions[.]” Murphy,

138 S.Ct. at 1482 (quoting Free Enterprise Fund, 561

U.S. at 509). If Congress would not have enacted the

4

To the extent that there is any confusion about how to apply

the severability doctrine, this Court has already granted review

in two cases that will allow it to provide additional clarity. Seila

Law v. CFPB, 19-7; Barr v. Am. Ass’n of Political Consultants Inc.,

No. 19-631.

28

remaining statutory provisions independent of the unconstitutional provision, those other provisions must

also fall. Id. (citing Alaska Airlines, 480 U.S. at 684).

Furthermore, a court “cannot rewrite a statute and

give it an effect altogether different from that sought

by the measure viewed as a whole.” Id. (quoting Railroad Retirement Bd., 295 U.S. at 362).

To determine whether Congress would have preferred no statute to the statute without the unconstitutional provision, a reviewing court should analyze

the text of the statute and its historical context. Free

Enterprise Fund, 561 U.S. at 509. Here, it is exceedingly unlikely that Congress would have passed the Affordable Care Act without including the requirement

that individuals must maintain minimum essential

health insurance coverage. The individual mandate

is not only central to the goals Congress sought to accomplish by passing the Act, it is the bedrock of the

entire law. The unconstitutionality of the mandate

thus dooms the entire Act.

The primary objective of the Affordable Care Act,

to expand health insurance coverage to as many people

as possible, was driven by the individual mandate command. This was not a secret. In fact, President Obama,

in widely publicized speeches about the Act, repeatedly

emphasized that this was the predominant goal of the

legislation. See, e.g., The White House, Office of the Press

Secretary, Official Transcript of News Conference by

President Obama, July 22, 2009, https://obamawhite

house.archives.gov/realitycheck/the_press_office/NewsConference-by-the-President-July-22-2009 (stating his

29

desire “to cover everybody” and stating that “the estimates are at least 97 to 98 percent of Americans”

would be covered under the legislation); The White

House, Office of the Press Secretary, Official Transcript

of Remarks by President Obama at Health Care Reform Town Hall, July 23, 2009, https://obamawhitehouse.

archives.gov/the-press-office/remarks-president-healthcare-reform-town-hall (“We are pursuing health insurance reform so that every American has access to

quality, affordable health coverage”); The White House,

Office of the Press Secretary, Official Transcript of Remarks of President Barack Obama, Address to Joint Session of Congress, February 24, 2009, https://obamawhite

house.archives.gov/the-press-office/remarks-presidentbarack-obama-address-joint-session-congress (referencing “the principle that we must have quality, affordable

health care for every American”).

Under the Act, these dramatic expansions in

healthcare coverage would have been unworkable absent the individual mandate. Indeed, as this Court has

recognized, Congress codified in the text of the Act that

the individual mandate was “essential to creating effective health insurance markets.” King v. Burwell, 135

S.Ct. 2480, 2486 (2015) (quoting 42 U.S.C. § 18091(2)(I)).

Congress’s unambiguously expressed conclusion was

that “[b]y significantly increasing health insurance

coverage,” the individual mandate would work “together with the other provisions of this Act” in order

to “minimize . . . adverse selection and broaden the

health insurance risk pool to include healthy individuals.” 42 U.S.C. § 18091(2)(I). Thus, the mandate was

30

inseparable from the Act’s other insurance market reforms, and those reforms were indispensable to accomplishing the Act’s fundamental purpose. This is not a

case where the excised portion of the statute is of “relative unimportance” to the legislation as a whole. See

Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 696 (1987).

Rather, the individual mandate and the Act’s other

provisions were “obviously meant to work together.”

See Murphy v. NCAA, 138 S.Ct. 1461, 1483 (2018).

Therefore, the provision is not severable because the

remainder of the statute would not “function in a manner consistent with the intent of Congress” about the

individual mandate. Alaska Airlines v. Brock, 480 U.S.

at 684.

Also weighing against severability is the Act’s lack

of a severability clause. While the absence of such a

clause “does not raise a presumption against severability,” New York v. United States, 505 U.S. 144, 186 (1992),

it remains highly relevant to the court’s analysis. For

example, in INS v. Chadha, this Court held that it

“need not embark on that elusive inquiry” of whether

an unconstitutional provision was severable from the

remainder of the law since Congress had included an

unambiguous severability clause in the statute. 462

U.S. 919, 932 (1983). And in Alaska Airlines, this Court

similarly held that the severability inquiry “is eased

when Congress has explicitly provided for severance

by including a severability clause in the statute,” unless there is “strong evidence that Congress intended

otherwise.” 480 U.S. at 686. Consequently, when such a

clause is lacking, courts may infer that the evidence

against severability need not be as robust.

31

Severing the individual mandate and leaving the

remaining provisions standing would result in “a

scheme sharply different from what Congress contemplated” when the Act was enacted. Murphy, 138 S.Ct.

at 1482. Health insurance reform was the chief legislative goal of the Act and the individual mandate is the

core driver of those reforms. The other provisions of the

Act work in tandem with and depend heavily upon the

mandate to create a comprehensive regulatory scheme.

It is evident that the remaining sections of the Act cannot function in the manner intended by Congress independent of the individual mandate because they are so

inextricably intertwined. Therefore, application of this

Court’s existing severability precedents confirms that

the whole Act must fall along with the unconstitutional command.

------------------------------------------------------------------

CONCLUSION

This Court has clearly articulated the considerations it finds relevant in reviewing petitions for a writ

of certiorari. Were any of those considerations

applicable, Petitioners’ request might warrant this

Court’s attention. But here, there is no circuit split to

resolve: only the ruling of a single court of appeals.

There is no departure from the accepted and usual

course of judicial proceedings: only a routine vacatur

and remand. And there is no important federal question that has yet to be decided: only a lower court applying well-established precedent. In short, there is no

compelling reason whatsoever for this Court to burden

32

itself by prematurely hearing this case. Accordingly, for

all the reasons set forth above, this Court should deny

the petitions for a writ of certiorari.

Respectfully submitted,

ROBERT HENNEKE

TEXAS PUBLIC

POLICY FOUNDATION

901 Congress Avenue

Austin, Texas 78701

Telephone: (512) 472-2700

rhenneke@texaspolicy.com

Counsel of Record for

Individual Respondents