The Mask Slips: Standing, the Affordable Care Act, and Hypocrisy in High Places


On November 10, the U.S. Supreme Court heard argument in California v. Texas. The Court had granted certiorari on three questions regarding the Affordable Care Act, Barack Obama’s signal piece of legislation during his presidency. First, whether individual and state plaintiffs have standing to challenge the minimum coverage provision in section 5000A of the Patient Protection and Affordable Care Act (ACA). Second, whether reducing the amount specified in section 5000A to zero rendered the minimum coverage provision unconstitutional. And third, if so, whether the minimum coverage provision is severable from the rest of the ACA. This column will consider one particular aspect of the oral argument, the way some of the Justices talked about standing.

Standing and Article III

Article III of the Constitution speaks of the judicial power to hear “all cases” and “controversies.” From this language, the Supreme Court has developed a doctrine that demands a great deal of anyone wanting to get into federal court. In one case that I found astonishing as a law student, City of Los Angeles v. Lyons, the Supreme Court denied standing to a plaintiff who sought an injunction against the Los Angeles Police Department’s chokehold policy and who had been choked pursuant to that policy. The Court said that the plaintiff (respondent) could not show that he would be choked (again) in the future and therefore failed the test for standing to seek an injunction. In a more recent case, Lujan v. Defenders of Wildlife, the Court held that caring deeply about harm to the environment was not enough, alone, to give people standing to bring a lawsuit challenging activities that threatened to harm the environment in violation of federal law.

It has generally been conservative Justices who developed this remarkably stingy doctrine, an impediment to lawsuits that has, at most, a tenuous link to the constitutional text on which it rests. It often results, moreover, in the Court never reaching the merits of a case, and we thus never learn who should have won.

In Allen v. Wright, another standing case from the 1980s, the Court held that plaintiffs could not sue the Internal Revenue Service (IRS) for continuing to give tax-exempt status to many schools that failed to desegregate and discriminated on the basis of race, in violation of the law. Though plaintiffs argued that IRS policy interfered with plaintiffs’ African American children’s ability to attend desegregated schools, the Court reasoned that what plaintiffs experienced was too disconnected from what the IRS did to sustain the lawsuit.

This Scroogelike approach to standing meant that even when the government was plainly violating the Constitution or other federal law, courts would block those people with an interest in stopping the misconduct from entering the courtroom to prove their case. It also meant that it might be impossible for any plaintiff to sue to force defendants to comply with the law when defendants’ misconduct did not concretely injure any individual, though many people might have felt personally affronted by the failure to obey a law that would have benefited the community, the world, or the environment in which we all must live. I have long thought that textualists on the Court were taking unwarranted liberties with the text by interpreting “the judicial power” of Article III of the Constitution, which “extend[s] to all Cases” and to “Controversies,” to require as an eligibility criterion that plaintiff have suffered a concrete rather than abstract injury, with abstract interpreted extremely broadly. While Article III says nothing of standing or of anything resembling standing, the words in the text do say “all” as in “all Cases” and therefore arguably require that federal courts rule on every case that presents a legal dispute rather than limiting themselves to those that complain of the kind of injury that strikes a majority of Supreme Court Justices as concrete enough.

On the Other Hand

As mentioned above, it has been mainly conservative Justices that have supported the stingy standing doctrine that leaves parties without any resolution of the merits. This fact is hardly surprising given that conservatives have generally, in the past, claimed to be reluctant to exercise the power of judicial review. It is the state legislatures or Congress that make the law, they liked to say, not a small number of unelected judges. To dismiss a case on standing grounds enables conservative Justices to avoid imposing upon the will of a majority (as the court would be doing if it struck down the legislation) without expressly having to interpret the Constitution in a manner that might betray judges’ ideological commitments (in either sense of the word). Dismissing a case on procedural grounds might sometimes seem more neutral than doing so on the merits, particularly if a merits decision appears to be lacking in empathy or moral principle.

Then came Tuesday, November 10, the day on which Texas had the distinction of reaching a million COVID-19 cases and also of having its Solicitor General argue before the Supreme Court that the ACA (which could help support medical care for COVID patients) is unconstitutional. The Court upheld the ACA over eight years ago. At that time, the Obama administration defended the law against a challenge arguing that Congress lacked the power to impose the individual mandate, a portion of the ACA that required people to purchase a health insurance policy or else pay a tax/penalty. Five Justices said that although the Commerce Clause did not authorize the individual mandate, the taxing power did. Chief Justice Roberts cast the deciding vote in the case.

Republicans subsequently tried to repeal the individual mandate, hoping that it would lead to the collapse of what they called “Obamacare,” wielding the name like an insult. Congress ultimately kept the provision but reduced the amount of the tax to $0. Though not technically a repeal, this move seemed as close to a repeal as one could get.

Then something unexpected happened. The ACA did not collapse. People continued to purchase insurance, even though they would suffer no penalty or other enforcement action if they failed to do so. States and individuals then brought the current suit challenging the law on the ground that absent a monetary payment component, the individual mandate could no longer rest on Congress’s power to tax, the only authority that Congress had had to pass the legislation after the Supreme Court rejected the Commerce Clause as a source of authority. And if the Court agreed with the view that the individual mandate was unconstitutional for this reason, then, plaintiffs maintained, the entire law should fall because the mandate could be severed from the rest of the statute.

What most interests me at this stage is a preliminary issue that the Supreme Court faced: do the plaintiffs have standing to complain about the alleged unconstitutionality of the individual mandate? Recall that conservative Justices have for years maintained that standing is a very demanding requirement that those who challenge the nation’s laws cannot meet merely because they suffer an abstract injury as a result of an invalid law or policy. So will the Justices be throwing the plaintiffs out of court in a unanimous opinion?

Well, we do not know, but a few of the Justices said some very strange things. Note that the argument against standing here is straightforward: the people do not suffer any injury as a consequence of the individual mandate. It is effectively a piece of paper that tells everyone to get insurance and threatens no penalty against anyone who fails to sign up. Even if the “mandate” is unconstitutional, it causes no injury to the plaintiffs, and the plaintiffs accordingly lack standing to challenge it.

Some of the Justices, however, seemed to disagree with what, until last week, would have been the straightforward application of decided case law. Justice Clarence Thomas asked the Solicitor General of California (defending the ACA): “I assume that in most places there is no penalty for wearing a face mask or a mask during COVID, but there is some degree of opprobrium if one does not wear it in certain settings. What if someone violates that command? Let’s say it’s in similar terms to the mandate here but no penalty. Would they have standing to challenge the mandate to wear a mask?”

Justice Thomas knows what it feels like to ignore mask requirements, as we can see in this video of him swearing in Justice Amy Coney Barrett at the White House (start at 11:20). Neither Thomas nor Barrett wears a mask or observes social distancing, so it seems they were both exemplars of brave soldiers, ready to confront the social stigma that attaches to those who violate the law, even when no one can enforce that law. But what if they entered a crowd that cares about not infecting their fellow Americans (and, as we now know, themselves)? Justice Thomas might feel social pressure as a consequence of the law, so he should have standing to complain, shouldn’t he?

With his generous conception of standing here, I would think Justice Thomas might want to overrule Lyons. While Adolph Lyons might not be choked again in the future, he might feel at least as much anxiety about the possibility of being choked as Justices Thomas and Barrett felt about the possibility of neighbors judging them (not a certainty either). Justice Thomas talked about the chilling effect (which refers to a fear of enforcement that some might call “neurotic” when the law provides for no enforcement). Justice Barrett later referred to Justice Thomas’s question as follows: “Justice Thomas asked you one [hypothetical example] about forcing people to wear a mask.” Notice that she believes an unenforced law requiring masks “forces” people to wear them. Let us hope Congress never passes an unenforceable mandate requiring consistency.

It is interesting to pause for a moment to think about the breathtaking hypocrisy of at least two of our Supreme Court Justices, which arguably extends beyond the standing issue. One of them, a prophet of colorblindness, made it through his Senate confirmation hearings by comparing an investigation of his alleged sexual misconduct to a “high tech” lynching. These were his words at the time: “And from my standpoint as a black American, as far as I’m concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S.—U.S. Senate, rather than hung from a tree.”

Justice Barrett refused to answer virtually any significant substantive questions during her confirmation hearing. She relied on the old saw that the issue might arise before the Court, although she took it further than prior nominees had. The thinking behind such refusals is that it creates a sort of appearance of impropriety to speak about an issue on which one might be hearing arguments in the future. After her confirmation, however, Justice Barrett arguably created her own appearance of impropriety with a swearing-in with a ceremony the very night of her confirmation, at the White House, where the President, she, and Justice Thomas chose to appear in close proximity, unmasked, in keeping with the “no masks” mandate that the authoritarian who (as of this writing) still claims that he won the election models for all of us.

I have never liked the standing doctrine, and there are things about both Justices Thomas and Barrett that I admire. (I have a harder time coming up with the same about the God-willing-outgoing President). And I have grown accustomed to hypocrisy, a vice that is very common among members of our species. What I find harder to tolerate is the pretense in Justices Thomas and Barrett’s questions that there is no hypocrisy, that of course the plaintiffs should have standing to challenge an unenforced and unenforceable law, as if no one had ever said otherwise. It’s just gaslighting.

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