Yes, the latest lawsuit over the ACA seems on its face like a long shot, not the kind of thing the Supreme Court would ultimately smile upon.
Yes, but: It was filed in Texas. It’s seeking the same type of nationwide injunction district courts handed down for President Obama’s immigration policies as well as President Trump’s travel ban. And the initial decision would be appealed to the very conservative 5th Circuit Court of Appeals.
So, could it do some damage in the short term, even if it’s on its way to an eventual loss?
What we’re hearing: I put that question to Jonathan Adler, a law professor at Case Western Reserve University who helped spearhead the King v. Burwell challenge to the ACA. He is … not impressed by this suit.
- “Might they get something out of a district court? Maybe, but I can’t see it going anywhere, for lots and lots of reasons,” he says. “I have a hard time taking it seriously as a legal challenge.”
The problems are myriad:
- Standing: You can only sue the government over a concrete injury. But when no one has to pay a penalty for being uninsured, it’s hard to see the injury.
- The crux of this lawsuit is to reprise the argument, from the last big individual mandate lawsuit, that the law cannot function as intended without the individual mandate.
- But it’s Congress that repealed the individual mandate. It’ll be pretty hard to argue that Congress believed the mandate was not “severable” from the rest of the law — and responded by severing it.
- “If Congress chooses to enact a two-legged stool, Congress chooses to enact a two-legged stool,” Adler says.
The bottom line: “I think it's clever but I think it's too clever,” Adler tells me.