Justice Alito’s Questions in California v. Texas Explain The Likely Aftermath Of a Dismissal on Standing Grounds
On Tuesday, the Supreme Court heard oral arguments in California v. Texas. I previously wrote about the merits question. Here, I will focus on the standing question. Specifically, what would happen if the Court held that neither the individual plaintiffs nor the state plaintiffs have standing? (I’ll presume general familiarity with the case, which I discussed in the Amicus brief I filed for the Cato Institute.)
At first glance, this standing holding may seem like the easiest way to get rid of this case. The individual plaintiffs are not injured by a mandate without a penalty, and the state plaintiffs are not subject to the mandate at all. Easy, right? Not quite.
There are two general postures in which a statute can be challenged. The traditional posture is that a plaintiff seeks a declaration that a law is unconstitutional. Here, the Plaintiff must assert that the statute causes an Article III injury. Generally, the government must take some sort of enforcement action to cause that injury. There is a second, less common posture: the government tries to enforce a statute against a person, and she raises as a defense that statute is unconstitutional. For example, in Bond v. United States, the defendant argued that his prosecution was invalid because a chemical weapons treaty violated the principles of federalism. In this case, Article III standing was obvious because the government sought to prosecute Bond with the statute. I’ll call the first path the offensive posture and the second path the defensive posture.
In California v. Texas, even if the Court holds that the plaintiffs lack standing to challenge the ACA in an offensive posture, a defendant in another case could challenge the ACA in the defensive posture. Justice Alito developed this point out in questions to three of the advocates.
First, consider Justice Alito’s colloquy with California Solicitor General Michael Mongan. Texas and other states argued that they incurred certain costs because of the ACA’s mandate. For example, the law requires Texas to “calculate Medicaid eligibility” using a new method. And this new method “has greatly increased the number of persons on Medicaid in Texas . . . by about 100,000 persons.” Was this cost enough for Article III standing, Alito asked? Mongan replied that these ancillary costs would not be enough. Texas would have to claim an “injury by the provision that they actually allege is unconstitutional.” That is, the indivi
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