Unreviewable: The Final Installment of the 'Epic' Obamacare Trilogy

2021 Cato Supreme Court Review __

31 Pages Posted: 9 Dec 2021

See all articles by Josh Blackman

Josh Blackman

South Texas College of Law Houston

Date Written: August 29, 2021


Over the past decade, Obamacare has faced three existential legal challenges. And in each “installment [of the] epic Affordable Care Act trilogy,” the Supreme Court rebuffed those attacks. First, NFIB v. Sebelius saved the ACA’s individual mandate as an exercise of Congress’s taxing power. Second, King v. Burwell held that the ACA, which subsidizes only health care exchanges “established by the State,” also subsidizes the federal exchange. And this past term, California v. Texas held that the latest challenge to Obamacare was unreviewable. After three rounds, Obamacare remains undefeated before the Supreme Court.

And the vote wasn’t even close. Seven members of the Court found that plaintiffs lacked standing. Justice Samuel Alito dissented with Justice Neil Gorsuch. They found that the state plaintiffs had standing, the mandate was unconstitutional, and certain portions of the ACA that injure the states should be enjoined. However, the majority and dissent did not address my preferred theory of standing-through-inseverability, which was also advanced by the solicitor general. This article for the Cato Supreme Court Review—my fourth—considers the legal arguments that California v. Texas declined to reach.

In the end, the ACA survived once again. Justice Alito wrote that “in all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.” He lamented, “once again the Court has found a way to protect the ACA.” Justice Alito predicted, “[o]ur Affordable Care Act epic may go on.” Soon enough, the trilogy will become a quadrilogy. You can check out of the Hotel California v. Texas any time you like. But I can never leave.

Keywords: Obamacare, ACA, California v. Texas

Suggested Citation

Blackman, Josh, Unreviewable: The Final Installment of the 'Epic' Obamacare Trilogy (August 29, 2021). 2021 Cato Supreme Court Review __, Available at SSRN: https://ssrn.com/abstract=3913733

Josh Blackman (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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