The Constitutional Problem with the Obamacare Case | Opinion
This November the Supreme Court will for the third time hear arguments in a case that seems to pose an existential challenge to Obamacare. Individual plaintiffs, together with Republican state attorneys general and the Trump administration, are asking the Court to kill the law. Democratic state attorneys general want the justices to confirm, once and for all, that the law is constitutional. But the justices shouldn't do either. Instead, they should tell both sides the Court has no business deciding this case.
That, indeed, should be the outcome for which conservatives hope. Conservatism takes seriously the idea that our government is one of separated powers. The judiciary's role in the system is restricted to resolving concrete disputes that determine the respective rights of adverse litigants. At various points in American history, however, the judiciary's role has been stretched to a breaking point, with courts acting as a quasi-legislature. The latest Obamacare challenge threatens to push the Court far beyond this breaking point, and the justices should have nothing to do with it.
If Judge Amy Coney Barrett is confirmed to the High Court, the Obamacare case will be one of her first opportunities to weigh in on a major constitutional issue. By dismissing the suit, she and her colleagues can reaffirm their commitment to constitutional text and structure.
Article III of the Constitution gives the federal judiciary "the judicial Power" but limits its jurisdiction to "'Cases' and 'Controversies.'" Known as "Article III standing," or the "case-or-controversy requirement," this rule demands that a plaintiff show three things. First, she must have an actual injury; a concrete, particular-to-her harm. Second, the harm must be traceable to the defendant's alleged unlawful conduct. Third, the harm must be redressable, such that the requested relief would remedy it.
The plaintiffs here can potentially go two for three. But two for three isn't enough.
These plaintiffs argue Obamacare's individual mandate became unconstitutional in 2017 when Congress made the penalty for not carrying health insurance zero dollars. Because the mandate was upheld in 2012 only under Congress's taxing power, the new penalty-less mandate—which raises no revenue—can't be a tax. But despite the penalty being zero, the plaintiffs say they feel obligated to follow the law simply because it has been duly enacted by Congress. That leaves them with no option except to pay out of pocket for insurance.
Ironically, the plaintiffs borrowed arguments advanced in 2012 by the Obama administration, which asserted that the mandate is so vital to Obamacare that without it, the rest of the law wouldn't work as intended. That, the plaintiffs say, means the whole law (including protections for preexisting conditions) should fall if the mandate is unconstitutional. In 2018, a district court in Texas agreed. Commentators have debated the legal grounds for that ruling ever since. But none of that should matter when the justices hear oral arguments a week after the November election.
Whether the plaintiffs are right or wrong on the merits, they need to show Article III standing, or else they can't be in court. That, again, requires them to show injury, traceability and redressability. And although the individual plaintiffs are joined here by 18 states, the states only have standing for this challenge if their citizens do.
The plaintiffs say their "injury"—unwanted costs of insurance—is traceable to the illegal mandate still on the books. But even if that's true, the plaintiffs cannot satisfy the redressability requirement.
Here's why. When, as in this case, federal courts review a statute, they have no power to "strike" or remove it from the books. The "judicial Power" conferred by the Constitution does not allow judges to remove statutes from the U.S. Code or repeal duly enacted laws. In fact, in 1787 the Framers rejected a similar system—the Council of Revision.
Instead, if judges deem the law unconstitutional, they can merely refuse to enforce it and order executive officials to refrain from enforcing it. Judges and legal scholars frequently refer to such laws as "voided" or "repealed," but that's wrong.
In various contexts, Justices Clarence Thomas, Neil Gorsuch and 14 other federal judges—including Obama-appointed Ninth Circuit Judge Paul Watford—have explicitly rejected the idea that judges "erase" statutes. Most importantly, of course, the Founders themselves rejected the notion that courts can erase laws.
If the justices cannot erase Obamacare—if all they can do is say it's not enforceable—then winning will give the plaintiffs no relief. Right now, the Obamacare mandate requires plaintiffs to maintain health insurance, but provides no penalty. If the plaintiffs win, the Obamacare mandate—as it will continue to exist on the books—will still require plaintiffs to maintain health insurance, and still provide no penalty except that Congress has still said non-compliers are behaving unlawfully.
If the plaintiffs feel compelled to obey Congress now, the same should be true even after a favorable day in court. The only difference is that the Supreme Court will have issued an advisory opinion on the mandate's constitutionality.
Thus, winning cannot redress the injury. And even if the plaintiffs subjectively derive solace from the justices weighing in, plaintiffs aren't entitled to a court's opinion just to make themselves feel better.
A dismissal might look like a defeat for conservatives who have fought against Obamacare for a decade. But it will be a triumph for constitutional conservatism. By dismissing the case, the justices can affirm that federal courts remain tethered to the fundamental constitutional restraint preventing them from opining on disputes they cannot resolve. The justices can—and should—refuse the plaintiffs' invitation to give the judiciary near-mystical powers of erasure.
Tyler B. Lindley is a third-year law student at the University of Chicago Law School.
The views expressed in this article are the author's own.
