Supreme Court’s ACA Ruling Is a Win for Common Sense

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The first time the Supreme Court decided an Affordable Care Act case, back in 2012, the result was a historic case with a complicated opinion written by the chief justice. It’s still studied closely in law schools. Today, the court revisited the ACA — this time as farce.

Today the Supreme Court rejected a coordinated, partisan challenge to law by holding that no one, neither individuals nor states, had standing to bring the case to court at all. The 7-2 decision was a nice reminder that most members of the court’s conservative majority can still exercise common sense even in cases where the Republican base is fired up.

As you may recall, the first ACA challenge focused on the individual mandate provision of the law, which originally said that everyone must have health care coverage or pay a penalty in the form of the tax. At the time, economists predicted that the whole ACA could go into a death spiral if only sick people bought health insurance and healthy people simply waited until they got sick to buy it. The court narrowly upheld the individual mandate, 5-4.

Then a funny thing happened: The Obama administration never really enforced the individual mandate – and the ACA didn’t go into a death spiral. Subsequently, Congress amended the law so that there is no penalty attached to the individual mandate. The law requiring you to have health insurance stayed on the books, but if you don’t have health insurance, you don’t have to pay a penalty to the IRS.

Trying to be clever, more than a dozen Republican-controlled states challenged the new, no-teeth law in federal court. They argued that Congress lacked the power to establish the mandate, as the four dissenting justices had held in 2012. Then they went on to say that, because the mandate was inextricably linked to the rest of the law, the whole ACA should be struck down.

This whole argument was a bit embarrassing to the justices. Most did not want to strike down the entire ACA. However, if the current Supreme Court were to take up the issue of whether the individual mandate was constitutional, it would have been hard for the court’s new conservatives — that is, the three Trump nominees who weren’t on the court in 2012 — to repudiate the votes of their predecessors.

The simplest solution was for the court to say that, because the plaintiffs did not have standing, it did not have to decide the issue of whether the no penalty mandate was still unconstitutional. Justice Stephen Breyer wrote the opinion explaining, sensibly, that no one has standing to challenge a law that is not enforceable.

The basic idea of standing is that there must be a live, real controversy before the court, exemplified in part by the requirement that a plaintiff has suffered with the court calls “concrete injury.” If failing to follow the law has zero consequences, there is no concrete injury to individuals. And the opinion also concluded, logically, that the states aren’t injured by the fact that the mandate provision is unenforceable.

It was unsurprising that Chief Justice John Roberts joined Breyer’s opinion, given that he had defected from his conservative colleagues in voting to uphold the mandate last time. Justice Clarence Thomas joined, too — writing separately to explain that although he felt sympathy for the conservative dissenters, there really was no standing where there was no injury.

Trump appointees Justices Brett Kavanaugh and Amy Coney Barrett also joined Breyer’s opinion. With the remaining liberals, Justices Elena Kagan and Sonya Sotomayor, that rounded out the majority of seven. Kavanaugh and Barrett could safely base their votes on a conservative view of standing. But their votes also likely reflect a commonsense recognition that it would be absurd to strike down the ACA on the theory propounded by the states.

Justice Samuel Alito dissented, joined by Justice Neil Gorsuch. Alito’s theory was that the states did have standing because implementing the ACA costs them money and the individual mandate is an inextricable part of the ACA, as the Obama administration long ago claimed. In a rhetorical flourish that bordered on the sad, he wrote: “Even $1 in harm is enough to support standing. Yet no State has standing?”

For the case to have come out the other way, Thomas, Kavanaugh and Barrett would all have to have bought Alito’s argument. No doubt they had subtly different reasons for rejecting it. Thomas, to be sure, is a formalist who does not care about practical outcomes. Yet the fact remains that Kavanaugh and Barrett did not go down the conservative rabbit hole when invited to do so. Sometimes, common sense wins.

The clever part of this argument was that, back in 2012, the Obama Justice Department had itself argued at the time that the individual mandate was necessary to the survival of the whole law. (Of course, that was before it turned out the ACA wouldn’t unravel without a penalty for failure to have insurance.)

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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