The Risks to the ACA of a Standing Decision in California v. Texas Are Overstated
The Supreme Court’s announcement that it would issue opinions this past Wednesday set off a flurry of speculation that the justices would be issuing their decision in California v. Texas, the latest Affordable Care Act challenge to reach One First Street (about which I’ve blogged extensively). One theory was that the Court might have been rushing to get the decision out so as to relieve the Biden Administration of the potentially difficult decision whether to withdraw the Trump Administration’s anti-ACA brief and substitute it with a brief defending the ACA. Alas, all we got was opinions on Foreign Sovereign Immunity for the expropriation of property during World War II and disability benefits under the Railroad Retirement Act.
On Tuesday, my co-blogger Josh Blackman suggested that there was a risk in withdrawing the Trump Administration’s brief insofar as it might encourage the Court to rule on standing. In an uncharacteristic move, the Trump Administration largely conceded that the plaintiffs had standing to challenge the mandate-sans-penalty, and the Biden Administration would be likely to take the other side, both because it would like to defend the ACA and because the Justice Department is usually more aggressive in seeking to deny standing to plaintiffs challenging federal laws. In addition, the plaintiffs’ arguments in favor of Article III standing are quite weak on the merits.
In his post, Blackman wrote:
[The Biden Administration] would prefer to win on the merits, or win on severability. But a win on standing would be short-lived. In the future, the federal government will take some enforcement action in Texas against a person based on the ACA. And that defendant, relying on circuit precedent, co
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