Thread by @michaelmorley11

1/ Thread on standing in Texas v. United States (the case invalidating the ACA).

2/ I think the case raises a conceptually interesting standing issue, but it's one that the Supreme Court has resolved squarely against the existence of standing, in a precedent the district court overlooks.

3/ The district court held that, although Congress amended ACA to eliminate Shared Responsibility Payments, the Individual Mandate remains law and imposes a legal duty on the plaintiffs (and others) to obtain health insurance.

4/ The district court concludes that the mere existence of a statutory legal duty constitutes legal injury to the plaintiffs, because they are required to follow the law, and complying with the Individual Mandate is sufficiently burdensome to constitute concrete injury-in-fact.

5/ The court's reasoning reminds me of the distinction in Remedies, thoroughly examined by Daryl Levinson, between "rights essentialism" and "remedial equilibration."

6/ "Rights essentialism" is the notion that legal rights/duties are distinct and independent from any remedies that may exist for violations. Rights essentialists recognize judicially unenforceable rights/duties, (meaning a right/duty that lacks an enforcement mechanism)

7/ Levinson identifies Lawrence Sager as a prominent rights essentialist. The district court's opinion in Texas v. U.S. is consistent with rights essentialism: the mere existence of a statutory duty is a judicially cognizable harm regardless of any consequences for violating it

8/ Levinson instead espouses "remedial equilibration," which is the notion that rights (and, by extension, duties) on the one hand, and remedies on the other, are deeply intertwined. A true right/duty cannot exist without a remedy; remedies determine the "cash value" of rights

9/ From a remedial equilibration perspective - which is the perspective most critics of the opinion adopt - a purported legal duty that carries no penalty or other consequence for violation is, in reality, no duty at all. From this perspective, the Individual Mandate is a nullity

10/ From the government's perspective, there is something to be said for a "rights essentialist" perspective on rights/duties. Apart from certain contexts (like civil disobedience or patently immral acts), we generally accept the notion that ppl have a duty to follow the law

11/ We can debate the source of this duty (the social contract, the democratic process, rule utilitarianism, etc.), but many people generally accept the idea that the existence of a law is itself either a prima facie, presumptive, or perhaps even dispositive reason for obeying it

12/ If one accepts that background principle, then the idea that the mere existence of a statutory duty, even without judicially enforceable penalties or other consequences for violating it, constitutes an injury-in-fact that confers standing to challenge that law, can make sense

13/ The Holmesian Bad Man (Bad Person?) comes to mind. The Bad Man wants to know what the consequences for violating a legal provision are; by extension, the "good" citizen accepts the notion that legal duties exist regardless of the consequences for violations.

14/ An argument could be made that Article III standing and injury-in-fact should not be based around a Holmesian "Bad Man" approach to the legal system.

15/ One of the big problems for the district court opinion, however, is that the U.S. Supreme Court has adopted the opposite approach to Article III standing. For me, the main case that comes to mind is Poe v. Ullman.

16/ In that case, the plaintiffs brought a constitutional challenge to a state legal provision (a contraception ban) that actually carried some penalties. The Court held the case was non-justiciable, because the plaintiffs did not face a credible threat of prosecution.

17/ The mere fact that a statutory legal duty (to avoid giving/receiving information about contraception) existed -- a duty backed up by some (admittedly limited) penalties, no less -- was *not sufficient* to render the case a live case or controversy.

18/ The Court held the challenged law had not been enforced, the plaintiffs did not face a credible threat of enforcement, and "the mere existence of a state penal statute would constitute insufficient grounds to support a federal court's adjudication of its constitutionality"

19/ The Court's focus in Poe wasn't on the existence of a statute or legal duty itself, but rather on the existence of consequences for violating that duty and the likelihood such consequences would be imposed.

20/ A provision like the Individual Mandate that completely lacks consequences for "violation" -- if failure to comply with the Mandate can even be deemed a "violation" (a separate issue that others have explored more thoroughly) -- makes the case even less justiciable than Poe

21/ I would be interested to see the various contexts, if any, in which the Fifth Circuit has had occasion to apply and elaborate upon Poe. This is a line of authority that could alleviate the need for that court to reach the merits or remedial severability issues.

22/ P.S. - Poe v. Ullman was, of course, the precursor to Griswold v. Connecticut. The plaintiff in Griswold had to essentially manufacture a prosecution with the help of cooperative officials to generate Article III standing for the case.
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