This article is part of a symposium previewing California v. Texas.

Brietta Clark is a professor of law and J. Rex Dibble fellow at Loyola Law School, Loyola Marymount University, Los Angeles.

In California v. Texas, two individuals and 18 states are once again asking the Supreme Court to do what it refused to do eight years ago in National Federation of Independent Business v. Sebelius. They want the court to find the minimum coverage provision in Section 5000A of the Patient Protection and Affordable Care Act unconstitutional and to invalidate the entire ACA as inseverable from the provision.

To justify a second bite at this apple, the plaintiffs are relying on the 2017 Tax Cuts and Jobs Act, which amended Section 5000A to set the penalty for failing to have insurance at zero. Paradoxically, they claim the TCJA transformed the minimum coverage provision into an unconstitutional mandate to buy insurance, despite the fact that it eliminated the only means of enforcing the provision. Indeed, President Donald Trump and legislators have described the TCJA as effectively repealing the mandate so that no one would be compelled to purchase insurance. Continue reading »

The Supreme Court meets Friday morning for a private conference to discuss whether to add any new cases to its docket. Among the petitions slated for discussion is a case involving the Sixth Amendment right to effective assistance of counsel for a person who was sentenced to death in Arizona, along with a pair of cases that involve the status of administrative law judges that adjudicate disability benefits under the Social Security Administration — specifically, what people seeking benefits need to do in order to mount a challenge arguing that their judge was not properly appointed under the Constitution’s appointments clause. Continue reading »

Pennsylvania election officials urged the Supreme Court to deny the Trump campaign’s motion to join the Pennsylvania Republican Party’s appeal of a state court ruling that requires election officials to count mail-in ballots received by Nov. 6. The campaign went to the court on Wednesday afternoon, telling them that the outcome of the presidential election could hinge on the vote in Pennsylvania. By the time the election officials and the Democratic Party filed their briefs opposing the campaign’s intervention on Thursday afternoon, former Vice President Joe Biden had closed the gap with the president significantly, with the counting expected to conclude late Thursday or Friday. Continue reading »

This article is part of a symposium previewing California v. Texas.

Josh Blackman is a professor of law at South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the author of two (and soon three) books on Obamacare’s legal controversies. Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. Together they filed an amicus brief on Cato’s behalf supporting respondents Neill Hurley and John Nantz.

Obamacare is back at the Supreme Court, again. This time, the justices will be called upon to decide the constitutionality of the individual mandate and, if necessary, how much of the rest of the Affordable Care Act has to fall.

But wait, didn’t the world-historical litigation culminating in National Federation of Independent Business v. Sebelius settle those questions in 2012? Remember, Chief Justice John Roberts changed his vote and transmogrified the penalty for not complying with the mandate to purchase health insurance into a tax? Well yes, but since Congress zeroed out that tax-penalty in 2017, we have to replay this script all over again. Continue reading »

This article is part of a symposium previewing California v. Texas.

Katie Keith is an associate research professor at Georgetown University’s Health Policy Institute and an adjunct professor at Georgetown University Law Center. She writes the “Following the ACA” column for Health Affairs. She joined an amicus brief on behalf of health policy scholars supporting California.

Before deciding whether the individual mandate is constitutional or severable from the rest of the Affordable Care Act in California v. Texas, the Supreme Court must first decide whether it can reach those questions. Under Article III of the Constitution, federal courts can only adjudicate actual cases or controversies. That constitutional requirement – embodied in the doctrine known as standing – means that at least one plaintiff must be able to show a concrete injury that is fairly traceable to the mandate and likely to be redressed by a favorable court decision. Continue reading »

The Supreme Court heard nearly two hours of oral argument Wednesday in Fulton v. City of Philadelphia, the high-profile case that involves a clash between religious rights and government efforts to prevent discrimination against same-sex couples. A majority of the court seemed sympathetic to the religious challengers in the case, but the justices appeared to be searching for a way to issue a narrow, rather than a sweeping, ruling.

Meanwhile, with the presidential election results still too close to call in several states and many ballots still being counted, President Donald Trump’s campaign is seeking to intervene at the Supreme Court in a dispute over late-arriving ballots in Pennsylvania. The justices declined to intervene in the dispute before Election Day, but a petition from Pennsylvania Republicans asking the court to get involved now remains pending. The justices ordered state officials to file a response to the Trump campaign’s motion to intervene by 5 p.m. EST on Thursday. Continue reading »

Telling the court that “the vote in Pennsylvania may well determine the next President of the United States,” the campaign of President Donald Trump went to the Supreme Court on Wednesday afternoon. In a 10-page filing in Republican Party of Pennsylvania v. Boockvar, the president’s campaign asked to join the Pennsylvania Republican Party’s appeal of a ruling by the Pennsylvania Supreme Court that requires election officials to count mail-in ballots received by Nov. 6. The justices rejected a plea from the party to fast-track their challenge to that ruling last week, but an opinion from Justice Samuel Alito left open the possibility that the court could take up the dispute again. Continue reading »

If the justices – like many of us – were up late on Tuesday night watching election returns, it was hard to tell when they took the virtual bench on Wednesday morning to hear oral argument in an important case involving a clash between religious freedom and laws and policies that protect LGBTQ rights. When the justices considered a similar dispute two years ago, in the case of a Colorado baker who refused to make a custom cake to celebrate a same-sex wedding because he believed that doing so would violate his religious beliefs, they ruled for the baker without deciding whether requiring him to bake the cake would violate his First Amendment rights. After nearly two hours of debate Wednesday in Fulton v. City of Philadelphia, it once again seemed that the court might rule for the challenger, but without necessarily issuing a sweeping pronouncement about religious rights and the First Amendment.

Lori Windham and co-counsel Mark Rienzi for Catholic Social Services, and Neal Katyal for Philadelphia (Art Lien)

Continue reading »

This article is the first entry in a symposium previewing California v. Texas.

Since Congress passed the Affordable Care Act in 2010, the Supreme Court has reviewed six cases testing various parts of the law or the regulations that flow from it. One week after Election Day, the court will hear oral argument in a seventh.

The newest challenge, California v. Texas, will be the second time the justices review the constitutionality of the ACA’s individual mandate – the requirement that virtually all Americans buy health insurance. As of 2019, there is no longer any financial penalty for the failure to comply with that requirement, but the mandate language itself remains on the books. A group of 18 states with Republican attorneys general or governors, led by Texas, contend not only that the mandate is unconstitutional and must be thrown out, but that the rest of the ACA must go with it. Continue reading »

With the results of the presidential election uncertain and millions of votes still left to be counted, President Donald Trump is already promising to take the election to the Supreme Court. While it’s unclear what any new legal challenge will look like, SCOTUSblog and Election Law at Ohio State have been tracking — and will continue tracking — the most significant election-related lawsuits in our 2020 Election Litigation Tracker.

Meanwhile, with the nation glued to the election returns, the justices will hear argument at 10 a.m. EST in one of the most high-profile cases of the term: Fulton v. City of Philadelphia, which asks when private religious organizations are entitled to exemptions from general non-discrimination laws. Read our case preview here and our pre-argument symposium here. Continue reading »