ACA: The Lay of the Land
The oral argument transcript in California v. Texas (the ACA case) makes for interesting reading. Here’s my sense of where things stand—not a prediction of how the Justices will vote, but how I’d evaluate the arguments at this point.
TL;DR: The plaintiffs have standing, but only under their ‘bank-shot’ theory of inseverability. Because they lose on severability, the Court shouldn’t even get to the merits.
Direct standing. The plaintiffs’ ‘direct’ standing theories—the ones citing injuries following directly from the mandate—are pretty thin gruel. The individuals say they’re injured by the mandate itself: they don’t want to comply and buy health insurance, but they also don’t want to shirk their legal duties. The states claim a different kind of direct injury: the more people who feel compelled to buy insurance under the ACA, the more money they’ll have to spend for various other reasons.
Neither claim seems right. Imagine that Congress passed the following statute:
§ 1. The Church of Jesus Christ of Latter-day Saints is the established church of the United States, and all citizens shall comply with its tenets.
If anything violates the Establishment Clause, that does. But can anyone go to court over it? Like the ACA, this statute has no enforcement mechanism, so there’s no one to sue: the plaintiff’s quarrel is with the statute book, not with any particular defendant. As Justice Barrett noted, you can’t sue Congress to make them repeal a law; and in any case, courts don’t issue “writs of erasure,” stripping pages out of the Statutes at Large.
This may seem kind of crazy, that a literal establishment of religion could go without challenge. But a core lesson of standing doctrine is that a law can be unconstitutional—even wildly unconstitutional—and yet no single plaintiff might have standing to challenge it. That’s why standing is separate from the merits: because courts have to wait for a certain kind of case to weigh in, even if what they’re waiting to say is true. (I have other reservations about modern standing doctrine, but that part seems right to me.)
In this hypo, even if an individual plaintiff objects to the new legal duty, there’s no defendant to whom that injury is traceable; there’s no one for a court to enjoin, much less to award damages against. And, as Justice Gorsuch noted, you can’t get declaratory relief just to answer an abstract question; you need the possibility of some other kind of relief in some other kind of suit. (Maybe the establishment could be challenged in private lawsuits—say, if LDS tenets rendered alcohol contracts among private persons void as against public policy. But you’d still need an actual defendant.)
The Texas SG noted that the United States is a defendant in the ACA case (as has Josh Blackman in a previous post). Maybe our hypothetical objector could sue the U.S. too, assuming an appropriate waiver of sovereign immunity. But this may not help. If the U.S. can sue private citizens in equity, obtaining injunctions to force them to adhere to the new religion (as Justice Gorsuch suggested with respect to 26 U.S.C. § 7402(a)), then sure, an individual defendant could invoke the Establishment Clause in defense. Maybe that individual could also, as plaintiff, race to the courthouse for an anti-suit injunction, or else for some kind of declaratory judgment establishing their rights and liabilities relative to the United States. But the former requires some real threat of enforcement, and the latter a “case of actual controversy.” If the United States agrees that the law is unconstitutional, and if no one is going after you, then what are the plaintiffs worried about?
The ACA plaintiffs seem to be assuming that unconstitutional statutes really do impose legal obligations, until a court officially announces that they don’t. But that’s not how it works. “[A]n act of the legislature, repugnant to the constitution, is void,” even before any court says so. A void statute imposes no obligations whatsoever: that’s why a court must refuse to apply it when the statute is invoked. If a government officer were to come and throw you in jail for not buying health insurance, then yes, you could challenge that deten
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