The plaintiffs in the Texas lawsuit? They also don’t have standing. It’s not even close.
David Schwartz: Why John Roberts should have listened to John Marshall
The case was originally brought by a group of 20 red states. According to them, the so-called individual mandate became unconstitutional when Congress eliminated the financial penalty for going without insurance. And if the mandate is unconstitutional, then the entire law is null and void. But the states aren’t subject to the individual mandate. People are. And the states don’t have standing to complain about a mandate that doesn’t even apply to them.
And so, the red states added new plaintiffs—two self-employed Texans, John Nantz and Neill Hurley, who say they have to pay higher prices for insurance because of Obamacare. They may be right about that: If the law were wiped from the books, insurers could refuse to sell insurance to sick people. That would allow insurers to charge healthy people less for their coverage.
But freewheeling complaints about the Affordable Care Act aren’t enough to give Nantz and Hurley standing, any more than they’d be enough for the red states. “Standing is not dispensed in gross,” as the Supreme Court has said. To have standing to sue, Nantz and Hurley have to show that the individual mandate caused them some kind of injury.
And they can’t do that. Remember, the entire basis for this lawsuit is that Congress, in 2017, repealed the tax penalty for going without coverage. That means Nantz and Hurley are free to buy insurance, or free not to. The individual mandate doesn’t force them to do a damn thing.
Read: What happens to Obamacare now?
O’Connor, however, really wanted to hear this case. So he stretched. He drew a sharp distinction between the individual mandate—the instruction to buy insurance—and the tax penalty for going without. Although Congress has zeroed out the penalty, the (now unenforceable) mandate is still on the books and “requires [Nantz and Hurley] to purchase and maintain certain health-insurance coverage.”
That’s not true: The ACA requires nothing of the kind. If you don’t believe me, believe the Supreme Court. In the first round of litigation over the individual mandate, the Court held that every person has “a lawful choice” to purchase or not purchase health insurance, “so long as he is willing to pay a tax levied on that choice.” Eliminating the tax penalty eliminates the consequence of that choice, but it doesn’t transform the individual mandate into a legal command.
Or look at the ACA itself. From the moment it was adopted, the ACA has said that “no penalty shall be imposed” on certain people, including American Indian tribal members and those with brief gaps in coverage. The law characterizes them as “exempt.”
In O’Connor’s view, all those people are still nominally compelled to adhere to the (unenforceable) mandate—which means they’re in exactly the same position as Nantz and Hurley, and have been for years. It would follow that these exempt people have been legally required to buy insurance all along, and that they all broke the law if they didn’t. Really?