Reconsidering Redressability and Traceability in California v. Texas
On Tuesday, the Supreme Court heard oral arguments in California v. Texas. I previously wrote about the merits question, and what would happen if the Court found that Texas lacked standing. Here, I will focus on the standing of the individual plaintiffs. (I’ll presume general familiarity with the case, which I discussed in the Amicus brief I filed for the Cato Institute.)
Lujan identified three factors to determine whether a plaintiff has established Article III standing. The plaintiff must “allege (1) an injury that is (2) “fairly traceable to the defendant’s allegedly unlawful conduct” and that is (3) “likely to be redressed by the requested relief.” Most discussions of standing in California v. Texas have focused on the first element. How can a mandate with a penalty inflict a concrete injury? The second and third factors have received far less attention.
In this case, traceability and redressability are closely linked. If the injury can be traced to the actions of someone in the federal government, then that person’s actions can be enjoined to redress the plaintiff’s injury. But if the injury cannot be traced to actions of someone in the federal government, then the plaintiffs may not be able to show their injury can be redressed. For California v. Texas, redressability and traceability rise together, or fall together. Justices Gorsuch and Barrett asked about these two elements.
Justice Gorsuch asked Kyle Hawkins, the Texas Solicitor General, what precise remedy the “individual Plaintiffs” are requesting. “I guess I’m a little unclear who exactly they want me to enjoin and what exactly do they want me to enjoin them from doing?” In other words, which defendant is injury traceable to, and how can that defendant be enjoined to redress the injury. Justice Gorsuch continued that courts usually “require some proof that we can remedy a plaintiff’s injury more concretely than just [through] a mere declaratory judgment.” Gorsuch said “you’d have to show that there would be an injunction that would be available.” This case would “essentially [be] an anticipatory action” to halt some future enforcement action.
Later, Justice Barrett followed up on Justice Gorsuch’s questions. She asked the Texas Solicitor General about whether the individual plaintiffs can establish traceability. She assumed for purposes of her questions that the mandate makes “them feel a legal compulsion to purchase insurance, [which] has caused them a pocketbook injury.” She asked, “why is that [injury] traceable to the defendants that the individuals have actually sued here.” Justice Barrett said the injury could be “caused by or traceable to a mandate itself.” But, she asked, how is that injury “traceable to the IRS or to HHS.” Justice Barrett asked, “Why is it their action that’s actually inflicting the injury?”
The answer to these questions about redressability and traceability turns on the precise nature of the injury being asserted. And there are two ways to frame the individual Plaintiffs’s injuries. First, that the unconstitutional mandate, standing by itself, causes the injury. Second, that the unconstitutional mandate cannot be severed from other portions of the ACA, and the plaintiffs are injured by the mandate, as well as those other portions of the ACA.
First, the Plaintiffs can argue that the mandate, standing by itself, forces them to purchase unwanted health insurance. With this first frame, it is not clear that the Plaintiffs’ (assumed) injury can be traced to anyone. Who enforces what is, in effect, a self-executing statute? It is not clear that any case would have ever addressed such a statute. During oral arguments, Justice Kavanaugh questioned if Congress had ever enacted a “true mandate with no penalties” “to do something” or “to purchase a good or service.” In reply, Hawkins said that the mandate was an “unprecedented” statute. (I chuckled).
In the Amended Complaint, the Plaintiffs sued five defendants: (1) The United States of America, (2) the Department of Health and Human Services, (3) the Secretary of Health and Human Services, (4) the Internal Revenue Service, and (5) the Commissioner of Internal Revenue. Under the first frame, where the injury is premised solely on a self-executing man
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