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Tomorrow, SCOTUS will hear oral argument in California v. Texas—the latest challenge to the Affordable Care Act. There are three questions at issue. We've put together a symposium addressing each one.
You can access it here: https://www.scotusblog.com/category/special-features/symposia-before-oral-arguments-in-the-2020-21-term/symposium-before-oral-argument-in-california-v-texas/
You can access it here: https://www.scotusblog.com/category/special-features/symposia-before-oral-arguments-in-the-2020-21-term/symposium-before-oral-argument-in-california-v-texas/
Before deciding the legal merits of the challenge to the health law, SCOTUS must determine if it can even reach those questions. Do the challengers have standing to sue?
Katie Keith says no: https://www.scotusblog.com/2020/11/symposium-no-injury-means-no-standing/
@JoshMBlackman & @ishapiro say yes: https://www.scotusblog.com/2020/11/symposium-the-individual-plaintiffs-in-california-v-texas-suffer-a-greater-article-iii-injury-than-did-the-individual-plaintiffs-in-nfib-v-sebelius/
Katie Keith says no: https://www.scotusblog.com/2020/11/symposium-no-injury-means-no-standing/
@JoshMBlackman & @ishapiro say yes: https://www.scotusblog.com/2020/11/symposium-the-individual-plaintiffs-in-california-v-texas-suffer-a-greater-article-iii-injury-than-did-the-individual-plaintiffs-in-nfib-v-sebelius/
Next question: Is the ACA's "individual mandate" (which states that most Americans must have insurance) constitutional? In 2012, SCOTUS upheld the mandate under Congress' taxing power, but Congress reduced the tax penalty to $0 in 2017. That change gave rise to the current case.
Brietta Clark argues that the individual mandate remains valid, even though it no longer contains a tax penalty: https://www.scotusblog.com/2020/11/symposium-enough-is-enough-the-coverage-provision-is-still-constitutional-and-the-court-should-reject-this-latest-pretext-for-attacking-the-aca/
Matthew Forys says that, without the penalty, the mandate is merely an unconstitutional command to purchase insurance: https://www.scotusblog.com/2020/11/symposium-schrodingers-tax-is-dead-and-the-command-to-buy-health-insurance-is-unconstitutional/
Matthew Forys says that, without the penalty, the mandate is merely an unconstitutional command to purchase insurance: https://www.scotusblog.com/2020/11/symposium-schrodingers-tax-is-dead-and-the-command-to-buy-health-insurance-is-unconstitutional/
Finally, if the individual mandate is unconstitutional, can it be severed from the ACA without striking down the entire law?
@Pratik_A_Shah says the severability question is an easy one & the answer is yes: https://www.scotusblog.com/2020/11/symposium-severability-poses-a-high-stakes-question-with-what-should-be-an-easy-answer/
Andy Schlafly says no: https://www.scotusblog.com/2020/11/symposium-the-court-should-not-sever-where-the-president-cannot/
@Pratik_A_Shah says the severability question is an easy one & the answer is yes: https://www.scotusblog.com/2020/11/symposium-severability-poses-a-high-stakes-question-with-what-should-be-an-easy-answer/
Andy Schlafly says no: https://www.scotusblog.com/2020/11/symposium-the-court-should-not-sever-where-the-president-cannot/
