IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10011

STATE OF TEXAS; STATE OF ALABAMA; STATE OF ARIZONA; STATE 

OF FLORIDA; STATE OF GEORGIA; STATE OF INDIANA; STATE OF 

KANSAS; STATE OF LOUISIANA; STATE OF MISSISSIPPI, by and 

through Governor Phil Bryant; STATE OF MISSOURI; STATE OF 

NEBRASKA; STATE OF NORTH DAKOTA; STATE OF SOUTH 

CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TENNESSEE; 

STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF ARKANSAS; 

NEILL HURLEY; JOHN NANTZ, 

 Plaintiffs – Appellees,

v.

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF 

HEALTH; HUMAN SERVICES; ALEX AZAR, II, SECRETARY, U.S. 

DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES 

DEPARTMENT OF INTERNAL REVENUE; CHARLES P. RETTIG, in his 

Official Capacity as Commissioner of Internal Revenue, 

 Defendants – Appellants,

STATE OF CALIFORNIA; STATE OF CONNECTICUT; DISTRICT OF 

COLUMBIA; STATE OF DELAWARE; STATE OF HAWAII; STATE OF 

ILLINOIS; STATE OF KENTUCKY; STATE OF MASSACHUSETTS; 

STATE OF NEW JERSEY; STATE OF NEW YORK; STATE OF NORTH 

CAROLINA; STATE OF OREGON; STATE OF RHODE ISLAND; STATE OF 

VERMONT; STATE OF VIRGINIA; STATE OF WASHINGTON; STATE OF 

MINNESOTA, 

 Intervenor-Defendants – Appellants.

United States Court of Appeals

Fifth Circuit

FILED

December 18, 2019

Lyle W. Cayce

Clerk

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Appeals from the United States District Court

for the Northern District of Texas

Before KING, ELROD, and ENGELHARDT, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

The Patient Protection and Affordable Care Act (the Act or ACA) is a 

monumental piece of healthcare legislation that regulates a huge swath of the 

nation’s economy and affects the healthcare decisions of millions of Americans. 

The law has been a focal point of our country’s political debate since it was 

passed nearly a decade ago. Some say that the Act is a much-needed solution 

to the problem of increasing healthcare costs and lack of healthcare 

availability. Many of the amici in this case, for example, argue that the law 

has extensively benefitted everyone from children to senior citizens to local 

governments to small businesses. Others say that the Act is a costly exercise 

in burdensome governmental regulation that deprives people of economic 

liberty. Amici of this perspective argue, for example, that the Act “has deprived 

patients nationwide of a competitive market for affordable high-deductible 

health insurance,” leaving “patients with no alternative to . . . skyrocketing 

premiums.” Association of American Physicians & Surgeons Amicus Br. at 15.

None of these policy issues are before the court. And for good reason—

the courts are not institutionally equipped to address them. These issues are 

far better left to the other two branches of government. The questions before 

the court are far narrower: questions of law, not of policy. Those questions are: 

First, is there a live case or controversy before us even though the federal 

defendants have conceded many aspects of the dispute; and, relatedly, do the 

intervenor-defendant states and the U.S. House of Representatives have 

standing to appeal? Second, do the plaintiffs have standing? Third, if they do, 

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is the individual mandate unconstitutional? Fourth, if it is, how much of the 

rest of the Act is inseverable from the individual mandate?

We answer those questions as follows: First, there is a live case or 

controversy because the intervenor-defendant states have standing to appeal 

and, even if they did not, there remains a live case or controversy between the 

plaintiffs and the federal defendants. Second, the plaintiffs have Article III 

standing to bring this challenge to the ACA; the individual mandate injures

both the individual plaintiffs, by requiring them to buy insurance that they do 

not want, and the state plaintiffs, by increasing their costs of complying with 

the reporting requirements that accompany the individual mandate. Third, 

the individual mandate is unconstitutional because it can no longer be read as 

a tax, and there is no other constitutional provision that justifies this exercise 

of congressional power. Fourth, on the severability question, we remand to the 

district court to provide additional analysis of the provisions of the ACA as they 

currently exist.

I.

On March 23, 2010, President Barack Obama signed the ACA into law. 

See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 

119 (2010). The Act sought to “increase the number of Americans covered by 

health insurance and decrease the cost of health care” through several key 

reforms. See Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519, 538 

(2012).

Some of those reforms implemented new consumer protections, aiming 

primarily to protect people with preexisting conditions. For example, the law 

prohibits insurers from refusing to cover preexisting conditions. 42 U.S.C. 

§ 300gg-3. The “guaranteed-issue requirement” forbids insurers from turning 

customers away because of their health. See 42 U.S.C. §§ 300gg, 300gg-1. The 

“community-rating requirement” keeps insurers from charging people more 

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because of their preexisting health issues. 42 U.S.C. § 300gg-4.1 The law also 

requires insurers to provide coverage for certain types of care, including 

women’s and children’s preventative care. 42 U.S.C. § 300gg-13(a)(3)–(4).2

Other reforms sought to lower the cost of health insurance by using both 

policy “carrots” and “sticks.”3 On the stick side, the individual mandate—

which plaintiffs challenge in the instant case—requires individuals to 

“maintain [health insurance] coverage.” 26 U.S.C. § 5000A(a). If individuals

do not maintain this coverage, they must make a payment to the IRS called a 

“shared responsibility payment.”4 Id.; see also King v. Burwell, 135 S. Ct. 2480, 

2486 (2015). 

 

1 The ACA features a few other consumer-protection reforms of note. For example, 

the Act requires insurance companies to allow young adults to stay on their parents’ health 

insurance plans until they turn 26; prohibits insurers from imposing caps on the value of 

benefits provided; and mandates that the insurance plans cover at least ten “essential health 

benefits,” including emergency services, prescription drugs, and maternity and newborn care. 

See 42 U.S.C. §§ 300gg-14 (young adults), 300gg-11 (restriction on benefit caps), 18022 

(essential health benefits). The ACA also requires employers with at least fifty full-time 

employees to pay the federal government a penalty if they fail to provide their employees 

with ACA-compliant coverage. 26 U.S.C. § 4980H. 

2 The women’s preventative care provision was at issue in a trio of recent Supreme 

Court cases. See Zubik v. Burwell, 136 S. Ct. 1557 (2016); Wheaton College v. Burwell, 573 

U.S. 958 (2014); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); see also California 

v. U.S. Dep’t of Health & Human Servs., No. 19-15072, 2019 WL 5382250 (9th Cir. Oct. 22, 

2019); Pennsylvania v. President United States, 930 F.3d 543 (3d Cir. 2019), as amended (July 

18, 2019); DeOtte v. Azar, 393 F. Supp. 3d 490, 495 (N.D. Tex. 2019).

3 Some opponents of the ACA assert that the goal was not to lower health insurance 

costs, but that the entire law was enacted as part of a fraud on the American people, designed 

to ultimately lead to a federal, single-payer healthcare system. In a hearing before the House 

Committee on Oversight and Government Reform, for example, Representative Kerry 

Bentivolio suggested that Jonathan Gruber, who assisted in crafting the legislation, had 

“help[ed] the administration deceive the American people on this healthcare act or [told] the 

truth in [a] video . . . about how [the Act] was a fraud upon the American people.” Examining 

Obamacare Transparency Failures: Hearing Before the H. Comm. on Oversight and 

Government Reform, 113th Cong. 83 (2014) (statement of Rep. Kerry Bentivolio). 

4 The Act exempts several groups of people from the shared responsibility payment. 

Specifically, the Act provides that “[n]o penalty shall be imposed” on those “who cannot afford 

[insurance] coverage,” on “[t]axpayers with income below [the] filing threshold,” on 

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The individual mandate was designed to lower insurance premiums by 

broadening the insurance pool. See 42 U.S.C. § 18091(2)(J) (“By significantly 

increasing . . . the size of purchasing pools, . . . the [individual mandate] will 

significantly . . . lower health insurance premiums.”). When the young and 

healthy must buy insurance, the insurance pool faces less risk, which, at least 

in theory, leads to lower premiums for everyone. See 42 U.S.C. § 18091(2)(I) 

(positing that the individual mandate will “broaden the health insurance risk 

pool to include healthy individuals, which will lower health insurance 

premiums”). The individual mandate thus serves as a counterweight to the

ACA’s protections for preexisting conditions, which push riskier, costlier 

individuals into the insurance pool. Under the protections for consumers with 

preexisting conditions, if there were no individual mandate, there would 

arguably be an “adverse selection” problem: “many individuals would,” in 

theory, “wait to purchase health insurance until they needed care.” Id.5

The Act also sought to lower insurance costs for some consumers through

policy “carrots,” providing tax credits to offset the cost of insurance to those 

with incomes under 400 percent of the federal poverty line. See 26 U.S.C. 

§ 36B; 42 U.S.C. §§ 18081, 18082. The Act also created government-run, 

taxpayer-funded health insurance marketplaces—known as “Exchanges”—

which allow customers “to compare and purchase insurance plans.” King, 135 

 

“[m]embers of Indian tribes,” on those who had only “short coverage gaps,” or on anyone who, 

in the Secretary of Health and Human Services’ determination, has “suffered a hardship.” 

26 U.S.C. § 5000A(e).

5 Opponents of the ACA, however, argue that the Act goes too far in limiting 

individuals’ freedom to choose healthcare coverage. For example, at a House committee 

hearing, Representative Darrell Issa argued that one of the “false claims” that the Obama 

administration made in passing the Act was that “[i]f you like your doctor, you will be able to 

keep your doctor, period. . . . [And i]f you like your [insurance] plan, you can keep your plan.” 

Examining Obamacare Transparency Failures: Hearing Before the H. Comm. on Oversight 

and Government Reform, 113th Cong. 2 (2014) (statement of Rep. Darrell Issa, Chairman, H. 

Comm. on Oversight and Government Reform).

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S. Ct. at 2485; see also 42 U.S.C. § 18031. Opponents of the law argue that the 

law has led to unintended subsidies to keep plans afloat and insurance 

companies in the black. Texas points in its brief, for example, to a 

Congressional Budget Office study estimating that federal outlays for health 

insurance subsidies and related spending will rise by about 60 percent over the 

next ten years, from $58 billion in 2018 to $91 billion by 2028. CBO, The 

Budget and Economic Outlook: 2018 to 2028 at 51 (April 2018), available at

https://tinyurl.com/CBOBudgetEconOutlook-2018-2028; State Plaintiffs’ Br. at 

13–14.

The ACA also enlarged the class of people eligible for Medicaid to include 

childless adults with incomes up to 133 percent of the federal poverty line. 42 

U.S.C. §§ 1396a(a)(10)(A)(i)(VII), 1396a(e)(14)(I)(i); NFIB, 567 U.S. at 541–42. 

The ACA originally required each state to expand its Medicaid program or risk 

losing “all of its federal Medicaid funds.” NFIB, 567 U.S. at 542. In NFIB, 

however, the Supreme Court held that this exceeded Congress’ powers under 

the Spending Clause. Id. at 585 (plurality opinion). But the Court allowed 

those states that wanted to accept Medicaid expansion funds to do so. See id.

at 585–86 (plurality opinion); id. at 645–46 (Ginsburg, J., concurring in part, 

concurring in the judgment in part, and dissenting in part). As a result, the 

states that have not participated in the expansion now subsidize, through their 

general tax dollars, the states that have participated in expansion. 

Since the Act was passed, its opponents have attempted to attack it both 

through congressional amendment and through litigation. Between 2010 and 

2016, Congress considered several bills to repeal, defund, delay, or amend the 

ACA. See Intervenor-Defendant States’ Br. at 10. Except for a few modest 

changes, these efforts were closely fought but ultimately failed. IntervenorDefendant States’ Br. at 10–11. In 2017, the shift in presidential 

administrations reinvigorated opposition to the law, but many of these later

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legislative efforts failed as well. In March 2017, House leaders pulled a bill 

that would have repealed many of the ACA’s essential provisions. In July 

2017, the Senate voted on three separate bills that similarly would have 

repealed major provisions of the Act, but each vote failed.6 Finally, in 

September 2017, several Senators introduced another bill that would have 

repealed some of the ACA’s most significant provisions, but Senate leaders 

ultimately chose not to bring it to the floor for a vote. Intervenor-Defendant 

States’ Br. at 11.

The ACA’s opponents also took their cause to the courts in a series of 

lawsuits, some of which reached the Supreme Court. Particularly relevant

here, the Court, in NFIB, upheld the law’s individual mandate. 567 U.S. at 

574. Through fractured voting and shifting majorities—explained in more 

detail in Part V of this opinion—the Court decided that the ACA’s individual 

mandate could be read as a tax on an individual’s decision not to purchase 

insurance, which was a constitutional exercise of Congress’ taxing powers 

under Article I of the U.S. Constitution. Id.; U.S. Const. art. I, § 8, cl. 1. The 

Court favored this tax interpretation to save the provision from 

unconstitutionality. Reading the provision as a standalone command to 

purchase insurance would have rendered it unconstitutional. This reading

could not have been justified under the Commerce Clause because it would 

have done more than “regulate commerce . . . among the several states.” U.S. 

Const. art. I, § 8, cl. 3. It would have compelled individuals to enter commerce 

in the first place.7 NFIB, 567 U.S. at 557–58. The Court also held that the 

 

6 One of these bills failed by a razor-thin vote of fifty-one against, forty-nine in favor. 

See 163 Cong. Rec. S4415 (daily ed. July 27, 2017).

7 Chief Justice Roberts cautioned that concluding otherwise would empower the 

government to compel Americans into all kinds of behavior that the government thinks is 

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provision could not be justified under the Constitution’s Necessary and Proper 

Clause. Id. at 561 (Roberts, C.J.); id. at 654–55 (Scalia, Kennedy, Thomas, and 

Alito, JJ., dissenting).

In December 2017, the ACA’s opponents achieved some legislative 

success. As part of the Tax Cuts and Jobs Act, Congress set the “shared 

responsibility payment” amount—the amount a person must pay for failing to 

comply with the individual mandate—to the “lesser” of “zero percent” of an 

individual’s household income or “$0,” effective January 2019. Pub. L. No. 115-

97, § 11081, 131 Stat. 2054, 2092 (2017); see also 26 U.S.C. § 5000A(c). The 

individual mandate is still “on the books” of the U.S. Code and still consists of 

the three fundamental components it always featured. Subsection (a) 

prescribes that certain individuals “shall . . . ensure” that they and their 

dependents are “covered under minimum essential coverage.” 26 U.S.C. 

§ 5000A(a). Subsection (b) “impose[s] . . . a penalty” called a “[s]hared 

responsibility payment” on those who fail to ensure they have minimum 

essential coverage. 26 U.S.C. § 5000A(b). Subsection (c) sets the amount of 

that payment. All Congress did in 2017 was change the amount in subsection 

(c) to zero dollars. 26 U.S.C. § 5000A(c).

Two months after the shared responsibility payment was set at zero 

dollars, the plaintiffs here—two private citizens8 and eighteen states9—filed 

this lawsuit against several federal defendants: the United States of America,

 

beneficial for them, including, for example, compelling them to purchase broccoli. See NFIB, 

567 U.S. at 558 (Roberts, C.J.).

8 Namely, Neill Hurley and John Nantz.

9 Namely, Texas, Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, 

Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, 

Utah, West Virginia, and Arkansas. Wisconsin, which was originally a plaintiff state, sought 

and was granted dismissal from the appeal.

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the Department of Health and Human Services and its Secretary, Alex Azar, 

as well as the Internal Revenue Service and its Acting Commissioner, David J. 

Kautter. The plaintiffs argued that the individual mandate was no longer 

constitutional because: (1) NFIB rested the individual mandate’s 

constitutionality exclusively on reading the provision as a tax; and (2) the 2017 

amendment undermined any ability to characterize the individual mandate as 

a tax because the provision no longer generates revenue, a requirement for a 

tax. The plaintiffs argued further that, because the individual mandate was 

essential to and inseverable from the rest of the ACA, the entire ACA must be 

enjoined. On this theory, the plaintiffs sought declaratory relief that the 

individual mandate is unconstitutional and the rest of the ACA is inseverable. 

The plaintiffs also sought an injunction prohibiting the federal defendants 

from enforcing any provision of the ACA or its regulations.

The federal defendants agreed with the plaintiffs that once the shared 

responsibility payment was reduced to zero dollars, the individual mandate 

was no longer constitutional. They also agreed that the individual mandate 

could not be severed from the ACA’s guaranteed-issue and community-rating 

requirements. Unlike the plaintiffs, however, the federal defendants 

contended in the district court that those three provisions could be severed 

from the rest of the Act. Driven by the federal defendants’ decision not to fully 

defend against the lawsuit, sixteen states10 and the District of Columbia 

intervened to defend the ACA.

The district court agreed with the plaintiffs’ arguments on the merits. 

Specifically, the court held that: (1) the individual plaintiffs had standing 

 

10 Namely, California, Connecticut, Delaware, Hawaii, Illinois, Kentucky, 

Massachusetts, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, 

Virginia, Washington, and Minnesota.

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because the individual mandate compelled them to purchase insurance; 

(2) setting the shared responsibility payment to zero rendered the individual 

mandate unconstitutional; and (3) the unconstitutional provision could not be 

severed from any other part of the ACA. The district court granted the 

plaintiffs’ claim for declaratory relief. Specifically, the district court’s order 

“declares the Individual Mandate, 26 U.S.C. § 5000A(a), 

UNCONSTITUTIONAL,” and the order further declares that “the remaining 

provisions of the ACA, Pub L. 111-148, are INSEVERABLE and therefore 

INVALID.” The district court, however, denied the plaintiffs’ application for a 

preliminary injunction. The district court entered partial final judgment11 as 

to the grant of summary judgment for declaratory relief, but stayed judgment 

pending appeal. This appeal followed.

On appeal, the U.S. House of Representatives intervened to join the 

intervenor-defendant states in defending the ACA.12 Also on appeal, the 

federal defendants changed their litigation position. After contending in the 

district court that only a few provisions of the ACA were inseverable from the 

individual mandate, the federal defendants contend in their opening brief for 

the first time that all of the ACA is inseverable. See Fed. Defendants’ Br. at

43–49. Moreover, the federal defendants contend for the first time on appeal

 

11 The final judgment is only partial because it addresses only Count One of the 

plaintiffs’ amended complaint. Count One requests a declaratory judgment that the 

individual mandate exceeds Congress’ constitutional powers. The district court has not yet 

ruled on the other counts in the amended complaint. In Count Two, the plaintiffs request a 

declaratory judgment that the ACA violates the Due Process Clause of the Fifth Amendment. 

In Count Three, the plaintiffs request a declaratory judgment that the ACA violates the 

Tenth Amendment. In Count Four, the plaintiffs request a declaratory judgment that agency 

rules promulgated pursuant to the ACA are unlawful. In Count Five, the plaintiffs request 

an injunction prohibiting federal officials from “implementing, regulating, or otherwise 

enforcing any part of the ACA.”

12 In addition to the U.S. House, four other states intervened on appeal to join the 

original group that defended the Act in the district court: Colorado, Iowa, Michigan, and 

Nevada.

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that—even though the entire ACA is inseverable—the court should not enjoin 

the enforcement of the entire ACA. The federal defendants now argue that the 

district court’s judgment should be affirmed “except insofar as it purports to 

extend relief to ACA provisions that are unnecessary to remedy plaintiffs’ 

injuries.”13 Fed. Defendants’ Br. at 49. They also now argue that the district 

court’s judgment “cannot be understood as extending beyond the plaintiff 

states to invalidate the ACA in the intervenor states.” Fed. Defendants’ Supp. 

Br. at 10. Simply put, the federal defendants have shifted their position on 

appeal more than once.

II.

We review a district court’s grant of summary judgment de novo. Time 

Warner Cable, Inc. v. Hudson, 667 F.3d 630, 638 (5th Cir. 2012). Summary 

judgment is appropriate when “the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a); see also Dialysis Newco, Inc. v. Cmty. 

Health Sys. Grp. Health Plan, 938 F.3d 246, 250 (5th Cir. 2019). A dispute 

about a material fact is genuine if “the evidence is such that a reasonable jury 

could return a verdict for the non-moving party.” Amerisure Ins. v. Navigators 

Ins., 611 F.3d 299, 304 (5th Cir. 2010) (quoting Gates v. Tex. Dep’t of Protective 

& Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008)). When ruling on a 

motion for summary judgment, the court views all inferences drawn from the 

 

13 The federal defendants do not specify which precise provisions, in their view, injure 

the plaintiffs and which do not.

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factual record “in the light most favorable to the non-moving parties below.” 

Trent v. Wade, 776 F.3d 368, 373 n.1 (5th Cir. 2015).

III.

We first must consider whether there is a live “[c]ase” or “[c]ontroversy”

before us on appeal, as Article III of the U.S. Constitution requires. U.S. Const. 

art. III, § 1. A case or controversy does not exist unless the person asking the 

court for a decision—in this case, asking us to decide whether the district 

court’s judgment was correct—has standing, which requires a showing of 

“injury, causation, and redressability.” Sierra Club v. Babbitt, 995 F.2d 571, 

574 (5th Cir. 1993). When “standing to appeal is at issue, appellants must 

demonstrate some injury from the judgment below.” Id. at 575 (emphasis 

omitted).

We conclude, as all parties agree, that there is a case or controversy

before us on appeal. Two groups of parties appealed from the district court’s 

judgment: the federal defendants, and the intervenor-defendant states.14

There is a case or controversy before us because both of these groups have their 

own independent standing to appeal.15

The federal defendants have standing to appeal. The instant case is on 

all fours with the Supreme Court’s decision in United States v. Windsor, 570 

U.S. 744 (2013). In that case, the executive branch of the federal government 

declined to defend a federal statute that did not allow the surviving spouse of 

 

14 The U.S. House of Representatives, also a party in this case, intervened in our court 

after the intervenor-defendant states and the federal government had filed notices of appeal.

15 Even if only one of these parties had standing to appeal, that would be enough to 

sustain the court’s jurisdiction. An intervenor needs standing only “in the absence of the 

party on whose side the intervenor intervened.” Sierra Club, 995 F.2d at 574 (alteration 

omitted) (quoting Diamond v. Charles, 476 U.S. 54, 68 (1986)); see also Vill. of Arlington 

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (1977) (exercising jurisdiction 

because “at least one” plaintiff had standing to sue).

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a same-sex couple to receive a spousal tax deduction. Id. at 749–53. The 

district court ruled that the statute was unconstitutional and ordered the 

executive branch to issue a tax refund to the surviving spouse. Id. at 754–55. 

The executive branch agreed with the district court’s legal conclusion, but it 

appealed the judgment and continued to enforce the statute by withholding the 

tax refund until a final judicial resolution. Id. at 757–58. 

The Supreme Court ruled that “the United States retain[ed] a stake 

sufficient to support Article III jurisdiction.” Id. at 757. That stake was the 

tax refund, which the federal government refused to pay. This threat of 

payment of money from the Treasury constituted “a real and immediate 

economic injury” to the federal government, which was sufficient for standing 

purposes. Id. at 757–58 (quoting Hein v. Freedom From Religion Found., Inc., 

551 U.S. 587, 599 (2007) (plurality opinion)). As the Court explained, “the 

refusal of the Executive to provide the relief sought suffices to preserve a 

justiciable dispute as required by Article III.” Windsor, 570 U.S. at 759; see 

also Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2362 (2019) 

(concluding that there was a justiciable controversy because the government 

“represented unequivocally” that it would not voluntarily moot the controversy 

absent a final judicial order, and “[t]hat is enough to satisfy Article III”); INS 

v. Chadha, 462 U.S. 919, 939 (1983) (holding that there was “adequate Art. III 

adverseness” because the executive branch determined that a federal statute 

was unconstitutional and refused to defend it but simultaneously continued to 

abide by it).

The instant case is similar. Though the plaintiffs and the federal 

defendants are in almost complete agreement on the merits of the case, the 

government continues to enforce the entire Act. The federal government has 

made no indication that it will begin dismantling any part of the ACA in the 

absence of a final court order. Just as in Windsor, then, effectuating the 

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district court’s order would require the federal government to take actions that 

it would not take “but for the court’s order.” Windsor, 570 U.S. at 758. And 

just as in Windsor, the federal defendants stand to suffer financially if the 

district court’s judgment is affirmed.16 As just one example, the district court’s 

judgment declares the Act’s Medicare reimbursement schedules unlawful, 

which, if given effect, would require Medicare to reimburse healthcare 

providers at higher rates. See, e.g., 42 U.S.C. § 1395ww(b)(3)(B)(xi)–(xii). 

Therefore, just as in Windsor, an appellate decision here will “have real 

meaning.” 570 U.S. at 758 (quoting Chadha, 462 U.S. at 939).17

The intervenor-defendant states also have standing to appeal. While a

party’s mere “status as an intervenor below . . . does not confer standing,” 

Diamond v. Charles, 476 U.S. 54, 68 (1986), intervenors may appeal if they can 

demonstrate injury from the district court’s judgment. Sierra Club, 995 F.2d 

at 574; see also Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 

(2019); Cooper v. Tex. Alcoholic Beverage Comm’n, 820 F.3d 730, 737 (5th Cir. 

2016). The intervenor-defendant states have made this showing because the 

district court’s judgment, if ultimately given effect, would: (1) strip these states

of funding that they receive under the ACA; and (2) threaten to hamstring 

these states in possible future litigation because of the district court 

judgment’s potentially preclusive effect.18

 

16 The dissenting Justices in Windsor objected to the Windsor majority’s approach to 

standing. Justice Scalia, for example, said that this approach to standing “would have been 

unrecognizable to those who wrote and ratified our national charter.” Windsor, 570 U.S. at 

779 (Scalia, J., dissenting). We are bound by the Windsor majority opinion.

17 Just as in Windsor, moreover, principles of prudential standing weigh in favor of 

exercising jurisdiction despite the government’s alignment with the plaintiffs. Just like the 

intervenors in Windsor, the intervenor-defendant states and the U.S. House both put on a 

“sharp adversarial presentation of the issues.” Id. at 761.

18 At first glance, it may not be entirely clear how a mere partial summary judgment 

on the issuance of a declaratory judgment would aggrieve anyone. But at oral argument, all 

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First, the intervenor-defendant states receive significant funding from 

the ACA, which would be discontinued if we affirmed the district court’s 

judgment declaring the entire Act unconstitutional. “[F]inancial loss as a 

result of” a district court’s judgment is an injury sufficient to support standing 

to appeal. United States v. Fletcher ex rel. Fletcher, 805 F.3d 596, 602 (5th Cir. 

2015). In their supplemental briefing, the intervenor-defendant states identify 

a few examples of the funding sources they would lose under the district court’s 

judgment. Evidence in the record shows that eliminating the Act’s Medicaid 

expansion provisions alone would cost the original sixteen intervening state 

defendants and the District of Columbia a total of more than $418 billion in 

the next decade. See 42 U.S.C. §§ 1396a(a)(10)(A)(i)(VIII), (e)(14)(I)(i), 

1396d(y)(1). Moreover, the Act’s Community First Choice Option program

gives states funding to care for the disabled and elderly at home or in their 

communities instead of in institutions. See 42 U.S.C. § 1396n(k). Record 

evidence shows that eliminating this program would cost California $400 

million in 2020, and that Oregon and Connecticut have already received $432.1 

million under this program. This evidence is more than enough to show that 

the intervenor-defendant states would suffer financially if the district court’s 

judgment is given effect, an injury sufficient to confer standing to appeal. See

Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 (2019). 

The district court’s judgment, if given effect, also threatens to injure the 

intervenor-defendant states with the judgment’s potentially preclusive effect 

in future litigation. We have held that “[a] party may be aggrieved by a district 

court decision that adversely affects its legal rights or position vis-à-vis other 

 

parties agreed that the district court’s partial summary judgment would have binding effect. 

Indeed, this is partly why the district court issued a stay. The district court acknowledged 

that the intervenor-defendant states would be prejudiced by the judgment, which means that 

the district court understood it to be binding. 

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parties in the case or other potential litigants.” Leonard v. Nationwide Mut. 

Ins., 499 F.3d 419, 428 (5th Cir. 2007) (quoting Custer v. Sweeney, 89 F.3d 

1156, 1164 (4th Cir. 1996)). If the federal defendants began unwinding the 

ACA, either in reliance on the district court’s judgment or on their own, the 

district court’s judgment would potentially estop the intervenor-defendant 

states from challenging that action in court. This case thus stands in contrast 

to the cases in which there was no chance whatsoever of a preclusive effect. 

See Klamath Strategic Inv. Fund ex rel. St. Croix Ventures v. United States, 

568 F.3d 537, 546 (5th Cir. 2009) (holding that there was no threatened injury 

from potential estoppel from the appealed-from judgment because that 

judgment was interlocutory, not final, and therefore could not estop the 

appealing party).

Finally, we examine the standing of the U.S. House of Representatives, 

which intervened after the case had been appealed. The Supreme Court’s 

recent decision in Virginia House of Delegates v. Bethune-Hill calls the House’s 

standing to intervene into doubt. 139 S. Ct. at 1953 (“This Court has never 

held that a judicial decision invalidating a state law as unconstitutional inflicts 

a discrete, cognizable injury on each organ of government that participated in 

the law’s passage.”). However, we need not resolve the question of the House’s 

standing. “Article III does not require intervenors to independently possess 

standing” when a party already in the lawsuit has standing and seeks the same 

“ultimate relief” as the intervenor. Ruiz v. Estelle, 161 F.3d 814, 830 (5th Cir. 

1998). That is the case here: the intervenor-defendant states have standing to 

appeal, and the House seeks the same relief as those states. We accordingly 

pretermit the issue of whether the House has standing to intervene.

IV.

We now turn to the issue of whether any of the plaintiffs had Article III 

standing to bring this case at the time they brought the lawsuit. To be a case 

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or controversy under Article III, the plaintiffs must satisfy the same three 

requirements listed above. First, a plaintiff must have suffered an “injury in 

fact”—a violation of a legally protected interest that is “concrete and 

particularized,” as well as “actual or imminent, not ‘conjectural’ or 

‘hypothetical.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (quoting 

Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Second, that injury must be 

“fairly . . . trace[able] to the challenged action of the defendant, and not . . . 

th[e] result [of] the independent action of some third party not before the 

court.” Id. (alterations in original) (quoting Simon v. E. Ky. Welfare Rights 

Org., 426 U.S. 26, 41–42 (1976)). Third, it must be “likely”—not merely 

“speculative”—that the injury will be “redressed by a favorable decision.” Id.

at 561 (quoting Simon, 426 U.S. at 38, 43).

The instant case has two groups of plaintiffs: the individual plaintiffs 

and the state plaintiffs. Only one plaintiff need succeed because “one party 

with standing is sufficient to satisfy Article III’s case-or-controversy 

requirement.”19 Texas v. United States (DAPA), 809 F.3d 134, 151 (5th Cir. 

2015) (quoting Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 

U.S. 47, 52 n.2 (2006)).20 The individual plaintiffs and the state plaintiffs

allege different injuries. We evaluate each in turn and conclude that both the 

individual plaintiffs and the state plaintiffs have standing.

A.

The standing issues presented by the individual plaintiffs are not novel. 

The Supreme Court faced a similar situation when it decided NFIB in 2012. 

 

19 For an academic critique of this approach, see Aaron-Andrew P. Bruhl, One Good 

Plaintiff Is Not Enough, 67 Duke L. J. 481 (2017).

20 We refer to this 2015 case as “DAPA”—after Deferred Action for Parents of 

Americans, the policy at issue there—to prevent confusion with the present case of the same 

name.

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At oral argument in that case, Justice Kagan asked Gregory Katsas, 

representing NFIB, whether he thought “a person who is subject to the 

[individual] mandate but not subject to the [shared responsibility payment]

would have standing.” Transcript of Oral Argument at 68, Dep’t of Health and 

Human Servs. v. Florida, 567 U.S. 519 (2012) (No. 11-398). Mr. Katsas replied, 

“Yes, I think that person would, because that person is injured by compliance 

with the mandate.” Id. Mr. Katsas explained, “the injury—when that person 

is subject to the mandate, that person is required to purchase health insurance. 

That’s a forced acquisition of an unwanted good. It’s a classic pocketbook 

injury.” Id. at 68–69.

In 2012, this questioning made sense because neither the individual 

mandate nor the shared responsibility payment would be assessed for another 

two years. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 

§ 1501, 124 Stat. 119, 244 (2012) (requiring insurance coverage “for each 

month beginning after 2013” and applying the shared responsibility payment 

for any failure to purchase insurance “during any calendar year beginning 

after 2013”). It was thus certainly imminent that the private plaintiffs would 

be subject to the individual mandate, which applies to everyone, but not certain 

that they would be subject to the shared responsibility payment, which 

exempts certain people. 26 U.S.C. § 5000A(e) (prescribing that “[n]o penalty 

shall be imposed” on certain groups of people).21 The distinction was important 

because a plaintiff “must demonstrate standing for each claim he seeks to 

press.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (quoting 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). To bring a claim 

 

21 For the full list of exemptions, see supra note 4.

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against the individual mandate, therefore, the plaintiffs needed to show injury 

from the individual mandate—not from the shared responsibility payment.

Accordingly, the district court in NFIB ruled that the private plaintiffs 

were injured by the ACA “because of the financial expense [they would] 

definitively incur under the Act in 2014,” and the private plaintiffs’ need “to 

take investigatory steps and make financial arrangements now to ensure 

compliance then.” Florida ex rel. Bondi v. U.S. Dep’t of Health & Human 

Servs., 780 F. Supp. 2d 1256, 1271 (N.D. Fla. 2011), aff’d in part and rev’d in 

part, 648 F.3d 1235 (11th Cir. 2011), aff’d in part and rev’d in part, 567 U.S. 

519 (2012). The record evidence in that case supported this conclusion. Mary 

Brown, one of the private plaintiffs in that case, for example, had declared that 

“to comply with the individual insurance mandate, and well in advance of 2014, 

I must now investigate whether and how to rearrange my personal finance 

affairs.” Appendix of Exhibits in Support of Plaintiffs’ Motion for Summary 

Judgment, Florida v. U.S. Dep’t of Health & Human Servs., No. 3:10-cv-91-

RV/EMT (N.D. Fla. Nov. 10, 2010), ECF No. 80-6. At the Eleventh Circuit, all 

parties agreed that Mary Brown had standing. Florida ex rel. Atty. Gen. v. 

U.S. Dep’t of Health & Human Servs., 648 F.3d 1235, 1243 (11th Cir. 2011), 

aff’d in part and rev’d in part, 567 U.S. 519 (2012) (“Defendants do not dispute 

that plaintiff Brown’s challenge to the minimum coverage provision is 

justiciable.”). Congress could have reasonably contemplated people like Mary 

Brown. As Mr. Katsas explained at oral argument in the Supreme Court, 

“Congress reasonably could think that at least some people will follow the law 

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precisely because it is the law.” Transcript of Oral Argument at 67, Dep’t of 

Health & Human Servs. v. Florida, 567 U.S. 519 (2012) (No. 11-398).

The district court in the instant case followed a similar approach with 

regard to the individual plaintiffs’ standing.22 It concluded that because the 

individual plaintiffs are the object of the individual mandate, which requires 

them to purchase health insurance that they do not want, those plaintiffs have 

demonstrated two types of “injury in fact”: (1) the financial injury of buying 

that insurance; and (2) the “increased regulatory burden” that the individual 

mandate imposes. In concluding that these injuries were caused by the 

individual mandate, the court made specific fact findings that both Nantz and 

Hurley purchased insurance solely because they are “obligated to comply with 

the . . . individual mandate.” The district court made these findings based on 

Nantz’s and Hurley’s declarations, which the intervenor-defendant states 

never challenged. Because the undisputed evidence showed that the

individual mandate caused these injuries, the district court reasoned that a 

favorable judgment would redress both injuries, allowing the individual 

plaintiffs to forgo purchasing health insurance and freeing them “from what 

they essentially allege to be arbitrary governance.”

We agree with the district court. The Supreme Court has held that when 

a lawsuit challenges “the legality of government action or inaction, the nature 

and extent of facts that must be averred (at the summary judgment stage) or 

proved (at the trial stage) in order to establish standing depends considerably 

upon whether” the plaintiffs are themselves the “object[s] of the action (or 

forgone action) at issue.” Lujan, 504 U.S. at 561; see also Texas v. EEOC, 933 

F.3d 433, 446 (5th Cir. 2019). “Whether someone is in fact an object of a 

 

22 No party initially questioned the plaintiffs’ standing in the district court. An amicus 

brief raised the issue, and the intervenor-defendant states addressed it at oral argument.

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regulation is a flexible inquiry rooted in common sense.” EEOC, 933 F.3d at

446 (quoting Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 265 

(5th Cir. 2015)). If a plaintiff is indeed the object of a regulation, “there is 

ordinarily little question that the action or inaction has caused [the plaintiff] 

injury, and that a judgment preventing or requiring the action will redress it.” 

Lujan, 504 U.S. at 561–62.

It is undisputed that Hurley and Nantz are the objects of the individual 

mandate and that they have purchased insurance in order to comply with that 

mandate. Record evidence supports these conclusions. In his declaration in 

the district court, Nantz stated, “I continue to maintain minimum essential 

health coverage because I am obligated.” Similarly, Hurley averred in his 

declaration that he is “obligated to comply with the ACA’s individual 

mandate.” They both explain in their declarations that they “value compliance 

with [their] legal obligations” and bought insurance because they “believe that 

following the law is the right thing to do.” Accordingly, the district court 

expressly found that Hurley and Nantz bought health insurance because they 

are obligated to, and we must defer to that factual finding. The evidentiary 

basis for this injury is even stronger than it was in NFIB. In the instant case, 

the individual mandate has already gone into effect, compelling Nantz and 

Hurley to purchase insurance now as opposed to two years in the future.

The intervenor-defendant states fail to point to any evidence 

contradicting these declarations, and they did not challenge this evidence in 

the district court. In fact, some of the evidence these parties rely on actually 

supports the conclusion that Nantz and Hurley purchased insurance to comply 

with the individual mandate. The intervenor-defendant states acknowledge a 

2017 report from the Congressional Budget Office indicating that “a small 

number of people” would continue to buy insurance without a penalty “solely 

because” of a desire to comply with the law. Cong. Budget Office, Repealing 

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the Individual Health Insurance Mandate: An Updated Estimate 1 (Nov. 2017).

This report is at least somewhat consistent with a 2008 Congressional Budget 

Office report, relied on by the state plaintiffs, that “[m]any individuals” subject 

to the mandate, but not the shared responsibility payment, will obtain 

coverage to comply with the mandate “because they believe in abiding by the 

nation’s laws.” Cong. Budget Office, Key Issues in Analyzing Major Health 

Insurance Proposals 53 (Dec. 2008). Whether this group of law-abiding citizens 

includes “many individuals” or “a small number of people,” Nantz and Hurley 

have undisputed evidence showing that they are a part of this group. 

In this context, being required to buy something that you otherwise 

would not want is clearly within the scope of what counts as a “legally 

cognizable injury.” “Economic injury” of this sort is “a quintessential injury 

upon which to base standing.” Tex. Democratic Party v. Benkiser, 459 F.3d 582, 

586 (5th Cir. 2006); see also Vt. Agency of Nat. Res. v. United States, 529 U.S. 

765, 772–77 (1998) (finding Article III injury from financial harm); Clinton v. 

New York, 524 U.S. 417, 432 (1998) (same); Sierra Club v. Morton, 405 U.S. 

727, 733–34 (1972) (same); DAPA, 809 F.3d at 155 (same). In Benkiser, for 

example, we held that a political party would suffer an injury in fact because 

it would need to “expend additional funds” in order to comply with the 

challenged regulation. 459 F.3d at 586. In the instant case, the undisputed 

record evidence shows that the individual plaintiffs have spent “additional 

funds” to comply with the statutory provision that they challenge on 

constitutional grounds.

This injury, moreover, is “actual,” not merely a speculative fear about 

future harm that may or may not happen. Lujan, 504 U.S. at 560. The record 

shows that, at the time of the complaint, Hurley and Nantz held health 

insurance, spending money every month that they did not want to spend. 

Nantz reports that his monthly premium is $266.56, and Hurley says his is 

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$1,081.70. The injury is also “concrete” because it involves the real 

expenditure of those funds. See Barlow v. Collins, 397 U.S. 159, 162–63, 164 

(1970) (finding a concrete injury when a regulation caused economic harm from 

lost profit).

Causation and redressability “flow naturally” from this concrete, 

particularized injury. Contender Farms, 779 F.3d at 266. The evidence in the 

record from Hurley’s and Nantz’s declarations show that they would not have 

purchased health insurance but for the individual mandate, and the 

intervenor-defendant states have no evidence to the contrary. A judgment 

declaring that the individual mandate exceeds Congress’ powers under the 

Constitution would allow Hurley and Nantz to forgo the purchase of health 

insurance that they do not want or need. They could purchase health 

insurance below the “minimum essential coverage” threshold, or even decide 

not to purchase any health insurance at all. 

The intervenor-defendant states make several arguments against this 

straightforward injury, and all of them come up short. They first argue that 

there is no legally cognizable injury because there is no longer any penalty for 

failing to comply. In one sense, this argument misses the point. The threat of 

a penalty that Hurley and Nantz would face under the pre-2017 version of the 

statute is one potential form of injury, but it is far from the only one. We have 

held that the costs of compliance can constitute an injury just as much as the 

injuries from failing to comply. See, e.g., Benkiser, 459 F.3d at 586. Thus, in 

this instance, it is this injury—the time and money spent complying with the 

statute, not the penalty for failing to do so—that constitutes the plaintiffs’

injury.

But the intervenor-defendant states also argue that even the costs of 

compliance cannot count as an injury in fact if there is no consequence for 

failing to comply. The individual mandate’s compulsion cannot inflict a 

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cognizable injury, they say, because it is not a compulsion at all. Because the 

enforcement mechanism has been removed, the U.S. House contends, it is now 

merely a suggestion, at most. We recently rejected this argument in Texas v. 

EEOC, when the Equal Employment Opportunity Commission tried to argue 

that Texas could not challenge its allegedly non-final administrative guidance 

because “the Guidance does not compel Texas to do anything.” 933 F.3d at 448. 

We concluded that it would “strain credulity to find that an agency action 

targeting current ‘unlawful’ discrimination among state employers—and 

declaring presumptively unlawful the very hiring practices employed by state 

agencies—does not require action immediately enough to constitute an injuryin-fact.”23 Id. The individual mandate is no different. Just like the agency 

guidance, the individual mandate targets as “unlawful” the decision to go 

without health insurance.

The dissenting opinion grounds its discussion of the issue in the Supreme 

Court’s decision in Poe v. Ullman, 367 U.S. 497 (1961). There, the Supreme 

Court rejected a challenge to Connecticut’s criminal prohibition on 

contraception. The dissenting opinion states that if there was no standing in 

Ullman, then there cannot be standing here. The dissenting opinion seems to 

treat Ullman as part of the “pre-enforcement challenge” line of cases in which 

the Supreme Court analyzed claims of injury based on future enforcement to 

determine whether the future enforcement was sufficiently imminent. 

Ullman, however, is not cited in the seminal Supreme Court cases of that line. 

 

23 The dissenting opinion states that Texas had standing in Texas v. EEOC because of 

the “consequences for disobeying the [challenged] guidance—including the possibility that 

the Attorney General would enforce Title VII against it.” This depiction of Texas v. EEOC

ignores that opinion’s emphasis on the fact that Texas was “the object of the Guidance.” 933 

F.3d at 446; see also id. (“If, in a suit ‘challenging the legality of government action,’ ‘the 

plaintiff is himself an object of the action . . . there is ordinarily little question that the action 

or inaction has caused him injury . . . .’” (quoting Lujan, 504 U.S. at 561–62)). As explained 

above, the individual plaintiffs in this case are the objects of the individual mandate.

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See, e.g., Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158–61 (2014); 

Holder v. Humanitarian Law Project, 561 U.S. 1, 15 (2010); Virginia v. Am. 

Booksellers Ass’n, Inc., 484 U.S. 383, 392–93 (1988); Babbitt v. United Farm 

Workers Nat’l Union, 442 U.S. 289, 298 (1979); see also Abbott Labs. v. 

Gardner, 387 U.S. 136, 154 (1967). More importantly, as we have explained, 

this case is not a pre-enforcement challenge because the plaintiffs have already 

incurred a financial injury.24

The plurality opinion in Ullman said there was insufficient adversity

between the parties because there was overwhelming evidence—eighty years’ 

worth of no enforcement of the statute—of “tacit agreement” between 

prosecutors and the public not to enforce the anti-contraceptive laws that the 

plaintiffs challenged. 367 U.S. at 507–08. As a result, the Court held that the 

lawsuit before it was “not such an adversary case as will be reviewed here.” Id. 

The fifth, controlling vote in that case—Justice Brennan, who concurred in the 

judgment—emphasized that this adverseness was lacking because of the case’s

“skimpy record,” devoid of evidence that the “individuals [were] truly caught 

in an inescapable dilemma.” Id. at 509 (Brennan, J., concurring).

By contrast, as documented above, the record in the instant case contains

undisputed evidence that Nantz and Hurley feel compelled by the individual 

mandate to buy insurance and that they bought insurance solely for that 

 

24 The dissenting opinion also relies on City of Austin v. Paxton, No. 18-50646, ___ F.3d 

___, 2019 WL 6520769 (5th Cir. Dec. 4, 2019). That reliance is confusing because City of 

Austin is an Ex parte Young case, not a standing case. For the Ex parte Young exception to 

Eleventh Amendment sovereign immunity to apply, the state official sued “must have ‘some 

connection with enforcement of the challenged act.’” Id. at *2 (alteration omitted) (quoting 

Ex parte Young, 209 U.S. 123, 157 (1908)). In City of Austin, the City’s claims against the 

Texas Attorney General failed because the City failed to show the requisite connection to 

enforcement under Ex parte Young. Of course, because this is a lawsuit against the federal 

government, neither the Eleventh Amendment nor Ex parte Young applies. Moreover, even 

if City of Austin had been a pre-enforcement challenge standing case, it would still be 

irrelevant because this case is not a pre-enforcement challenge.

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reason. Especially in light of the fact that the individual mandate lacks a 

similar eighty-year history of nonenforcement, Nantz and Hurley have gone 

much further in demonstrating that they are caught in the “inescapable 

dilemma” that the Ullman plaintiffs were not.

The intervenor-defendant states also argue that there is no causation 

between the individual mandate and Hurley and Nantz’s purchase of 

insurance because Hurley and Nantz exercised a voluntary “choice” to 

purchase insurance. Because Nantz and Hurley would face no consequence if 

they went without insurance, the intervenor-defendant states argue that their 

purchase of insurance is not fairly traceable to the federal defendants. Instead, 

they claim that Nantz and Hurley impermissibly attempt to “manufacture 

standing merely by inflicting harm on themselves.” Glass v. Paxton, 900 F.3d 

233, 239 (5th Cir. 2018) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 

416 (2013)). 

This argument fails, however, because it conflates the merits of the case 

with the threshold inquiry of standing. The argument assumes that 26 U.S.C. 

§ 5000A presents not a legal command to purchase insurance, but an option 

between purchasing insurance and doing nothing. Because this option exists, 

the argument goes, any injury arising from Hurley’s and Nantz’s decisions to 

buy insurance instead of doing nothing (the other putative option) is entirely 

self-inflicted. This, however, is a merits question that can be reached only after 

determining the threshold issue of whether plaintiffs have standing.

Texas v. EEOC makes clear that courts cannot fuse the standing inquiry 

into the merits in this way. There, in addition to the injury described above 

from the Guidance’s rebuke of Texas’s employment practices as “unlawful,” 

Texas claimed it was injured by the EEOC’s curtailing of Texas’s procedural 

right to notice and comment before being subject to a regulation. EEOC, 933 

F.3d at 447. In rejecting the suggestion that Texas was not truly injured 

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because the EEOC had not in fact violated the Administrative Procedure Act’s 

notice-and-comment rules, we held that “[w]e assume, for purposes of the 

standing analysis, that Texas is correct on the merits of its claim that the 

Guidance was promulgated in violation of the APA.” Id. (citing Sierra Club v. 

EPA, 699 F.3d 530, 533 (D.C. Cir. 2012)); see also Bennett v. Spear, 520 U.S. 

154, 177–78 (1997) (treating constitutional standing and finality as distinct 

inquiries). 

Indeed, allowing a consideration of the merits as part of a jurisdictional 

inquiry would conflict with the Supreme Court’s express decision in Steel Co v. 

Citizens for a Better Environment to not abandon “two centuries of 

jurisprudence affirming the necessity of determining jurisdiction before 

proceeding to the merits.” 523 U.S. 83, 98 (1998). That case presented both 

the question of Article III standing and the merits question of whether the 

relevant statute authorized lawsuits for purely past violations. Id. at 86. The 

Court rejected any “attempt to convert the merits issue . . . into a jurisdictional 

one.” Id. at 93. The Court further rejected the “doctrine of hypothetical 

jurisdiction,” under which certain courts of appeals had “proceed[ed] 

immediately to the merits question, despite jurisdictional objections” in certain 

circumstances. Id. at 93–94. As the district court correctly noted, that is 

exactly what the appellants ask this court to do. They urge us to “skip ahead 

to the merits to determine § 5000A(a) is non-binding and therefore 

constitutional and then revert to the standing analysis to use its merits 

determination to conclude there was no standing to reach the merits in the 

first place.”

Moreover, even if we were to consider the merits as part of our

jurisdictional inquiry, it would not make a difference in this case. Because we 

conclude in Part IV of this opinion that the individual mandate is best read as 

a command to purchase insurance (and an unconstitutional one at that), rather 

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than as an option between buying insurance or doing nothing, the individual 

plaintiffs would have standing even if we considered the merits.25

B.

We next consider whether the eighteen state plaintiffs have standing, 

and we conclude that they do.26 The state plaintiffs allege that the ACA causes 

them both a fiscal injury as employers and a sovereign injury “because it 

prevents them from applying their own laws and policies governing their own 

healthcare markets.” State Plaintiffs’ Br. at 25. In DAPA, we determined that 

the state of Texas was entitled to special solicitude because it was “exercising 

a procedural right created by Congress and protecting a ‘quasi-sovereign’

interest.” DAPA, 809 F.3d at 162 (quoting Massachusetts v. EPA, 549 U.S. 497, 

520 (2007)); see also id. at 154–55. Because the state plaintiffs in this case 

have suffered fiscal injuries as employers, we need not address special 

solicitude or the alleged sovereign injuries.

Employers, including the state plaintiffs, are required by the ACA to 

issue forms verifying which employees are covered by minimum essential 

coverage and therefore do not need to pay the shared responsibility payment. 

See 26 U.S.C. § 6055(a) (“Every person who provides minimum essential 

coverage to an individual during a calendar year shall, at such time as the 

Secretary may prescribe, make a return described in subsection (b).”); 26 

U.S.C. § 6056(a) (“Every applicable large employer [that meets certain 

 

25 Even if the individual plaintiffs did not have standing, this case could still proceed 

because the state plaintiffs have standing. DAPA, 809 F.3d at 151 (holding that only one 

plaintiff needs standing for the court to exercise jurisdiction). “This circuit follows the rule 

that alternative holdings are binding precedent and not obiter dictum.” Id. at 178 n.158 

(quoting United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011)).

26 Likewise, even if the state plaintiffs did not have standing, this case could still 

proceed because the individual plaintiffs have standing. DAPA, 809 F.3d at 151 (holding that 

only one plaintiff needs standing for the court to exercise jurisdiction).

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statutory requirements] shall . . . make a return described in subsection (b).”). 

These provisions have led to Form 1095-B and 1095-C statements that 

employees receive from their employers around tax time, which include a series 

of check boxes indicating the months that employees had health coverage that 

complies with the ACA. State Plaintiffs’ Br. at 23. These legally required 

reporting practices exist on top of state employers’ own in-house 

administrative systems for managing and tracking their employees’ health 

insurance coverage.

The record is replete with evidence that the individual mandate itself 

has increased the cost of printing and processing these forms and of updating 

the state employers’ in-house management systems. For example, Thomas 

Steckel, the director of the Division of Employee Benefits within the South 

Dakota Bureau of Human Resources, submitted a declaration documenting the 

administrative costs that the individual mandate has imposed by way of these 

reporting requirements. He said, “[t]he individual mandate caused significant 

administrative burdens and expenses to program our IT system to track and 

report ACA eligible employees and complete mandatory IRS Form 1095 annual 

reports.” Steckel noted specifically that “the individual mandate caused . . . 

$100,000.00 [in] ongoing costs” for Form 1095-C administration alone. The 

dissenting opinion discards this evidence as conclusory. But as even counsel 

for the intervenor-defendant states admitted at oral argument, nobody 

challenged this evidence as conclusory in the district court or in the appellate 

court.27 Oral Argument at 5:12.

South Dakota is far from the only state that has been harmed from the 

financial cost of the reporting requirements that the individual mandate 

 

27 The reason why is obvious: the evidence is not conclusory. This is bread-and-butter 

summary judgment practice, not, as the dissenting opinion contends, any “new summaryjudgment rule.” Of course, a properly-included affidavit must be based on personal 

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aggravates. Judith Muck, the Executive Director of the Missouri Consolidated 

Health Care Plan, reported that Missouri’s costs for preparing 1095-B forms, 

along with 1094-B forms, are projected to be $47,300 in fiscal year 2019 and 

$49,200 in fiscal year 2020. Similarly, Teresa MacCartney, the Chief Financial 

Officer of the State of Georgia and the Director of the Georgia Governor’s Office 

of Planning and Budget, reported that Georgia’s overall cost of compliance with 

the ACA’s reporting requirements “is an estimated net $3.6 million to date.” 

MacCartney also reported that after the ACA’s implementation, Georgia’s 

Department of Community Health “experienced increased enrollment of 

individuals already eligible for Medicaid benefits under pre-ACA eligibility 

standards.” This enrollment increase required the Department to enhance its 

management systems, which was “very costly.” Blaise Duran, who is the 

Manager for Underwriting, Data Analysis and Reporting for the Employees 

Retirement System of Texas, further documented Texas’ costs of the reporting 

requirements. He declared that the Texas Employees Group Benefits Program 

“has made administrative process changes in connection with its ACA 

 

knowledge, and conclusory facts and statements on information and belief cannot be utilized. 

See Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure, § 2738 (4th 

ed. 2019). The Steckel affidavit easily satisfies this standard: it is a detailed 8-page 

declaration. Steckel attested, under penalty of perjury, that he is “responsible for developing 

and implementing the State’s health plan for state employees” and that he is “particularly 

familiar with changes in costs, plans, and policies related to the enactment of the ACA 

because of my role as the Director of the Division [of Employee Benefits].” He estimates the 

financial costs the individual mandate has caused in nine different categories, including 

ongoing costs of $10,400 for review of denied appeals, ongoing costs of $100,000 for Form 

1095-C administration, and a one-time cost of $3,302,942 as a Transitional Reinsurance 

Program fee. For other costs, such as the pre-existing conditions prohibition and the 

expanded eligibility for adult dependent children to age 26, he conceded that he was “unable 

to accurately estimate the ongoing costs of this mandate.” A determination of standing is 

supported by the administration of Form 1095-C, the CBO’s prediction that some individuals 

will continue to purchase insurance in the absence of a shared responsibility payment, the 

fact that two such individuals are before this court, and the Supreme Court’s observation 

that “third parties will likely react in predictable ways.” Department of Commerce, 139 S. Ct. 

at 2566.

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compliance, such as those related to the provision of Form 1095-Bs to plan 

participants and the Internal Revenue Service.”28

The intervenor-defendant states and the U.S. House have not challenged 

the state plaintiffs’ evidence or presented any evidence to the contrary. 

Instead, they argue that the reporting requirements set forth in Sections 

6055(a) and 6056(a) “are separate from the mandate and serve independent 

purposes.” U.S. House Reply Br. at 19. Therefore, they claim, “any resulting 

injury is thus neither traceable to Section 5000A nor redressable by its 

invalidation.” U.S. House Reply Br. at 19. But this misreads the undisputed 

evidence in the record. The individual mandate commands individuals to get 

insurance. Every time an individual gets that insurance through a state 

employer, the state employer must send the individual a form certifying that 

he or she is covered and otherwise process that information through in-house

management systems.29 Thus, the reporting requirements in Sections 6055(a) 

and 6056(a) flow from the individual mandate set forth in Section 5000A(a). 

 

28 This list is not exhaustive. For instance, Arlene Larson, Manager of Federal Health 

Programs and Policy for Wisconsin Employee Trust Funds, declared that the state expended 

funds by “hir[ing] a vendor to issue 343 Form 1095-Cs” in 2017. And Mike Michael, Director 

of the Kansas State Employee Health Plan, averred that reporting for Form 1094 and 1095 

cost the state $43,138 in 2017 and $38,048 in 2018. No record evidence indicates that these 

reporting requirements have been eliminated. Moreover, the “standing inquiry remains 

focused on whether the party invoking jurisdiction had the requisite stake in the outcome 

when the suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008).

29 Relying on this injury, therefore, does not run afoul of Nat’l Fed. of the Blind of 

Texas v. Abbott, 647 F.3d 202 (5th Cir. 2011). That case prevents plaintiffs from claiming 

injury based on provisions whose enforcement would be enjoined only if they are inseverable 

from an unconstitutional provision that does not harm the plaintiff. Id. at 210–11. The state 

plaintiffs’ injuries stem from the increased administrative costs created by the individual 

mandate itself, not from other provisions. To be sure, those costs are created in part by the 

individual mandate’s practical interaction with other ACA provisions, like the reporting 

requirements. But this is no different from the injuries in DAPA, where the challenged action 

interacted with Texas’s driver’s license regulations. It is also no different from Department 

of Commerce, where the challenged census question interacted with constitutional rules tying 

political representation to a state’s population. 

 

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These costs to the state plaintiffs are well-established.30 Moreover, the 

continuing nature of these fiscal injuries is consistent with Fifth Circuit and 

Supreme Court precedent.

In DAPA, we held that the state of Texas had standing to challenge the 

federal government’s DAPA program because it stood to “have a major effect 

on the states’ fisc.” Id. at 152. This was because, if DAPA were permitted to 

go into effect, it would have “enable[d] at least 500,000 illegal aliens in Texas” 

to satisfy Texas’s requirements that the Department of Public Safety “‘shall 

issue’ a license to a qualified applicant,” including noncitizens who present 

“documentation issued by the appropriate United States agency that 

authorizes the applicant to be in the United States.” Id. at 155 (quoting Tex. 

Transp. Code §§ 521.142(a), 521.181). Evidence in the record showed that 

Texas, which subsidizes its licenses, would “lose a minimum of $130.89 on each 

one it issued to a DAPA beneficiary.” Id. Even a “modest estimate” of 

 

30 The dissenting opinion, citing no authority, contends that the state plaintiffs need 

evidence that at least one specific “employee enrolled in one of state plaintiffs’ health 

insurance programs solely because of the unenforceable coverage requirement.” We have 

already explained why the uncontested affidavits suffice. We note, moreover, that the DAPA

court found that Texas had standing because “it would incur significant costs in issuing 

driver’s licenses to DAPA beneficiaries”—without requiring that Texas first show that it had 

issued a specific license to a specific illegal alien because of DAPA. Finally, the dissenting 

opinion’s rule would create a split with our sister circuits. See Massachusetts v. United States 

Dep’t of Health & Human Servs., 923 F.3d 209, 225 (1st Cir. 2019) (“[Massachusetts] need 

not point to a specific person who will be harmed in order to establish standing in situations 

like this.”); California v. Azar, 911 F.3d 558, 572 (9th Cir. 2018), cert. denied sub nom. Little 

Sisters of the Poor Jeanne Jugan Residence v. California, 139 S. Ct. 2716 (2019) (“Appellants 

fault the states for failing to identify a specific woman likely to lose coverage. Such 

identification is not necessary to establish standing.”); Pennsylvania v. President United 

States, 930 F.3d 543, 564 (3d Cir. 2019), as amended (July 18, 2019) (“The Government faults 

the States for failing to identify a specific woman who will be affected by the Final Rules, but 

the States need not define injury with such a demanding level of particularity to establish 

standing.”).

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predictable third-party behavior would rack up costs of “several million 

dollars.” Id. 

The Supreme Court recently applied a similar analysis in Department of 

Commerce v. New York, 139 S. Ct. 2551 (2019). In that case, a group of state 

and local governments sued to prevent the federal government from including 

a question about citizenship status on the 2020 census. Id. at 2563. The 

Supreme Court held that these plaintiffs had standing because they met their 

burden “of showing that third parties will likely react in predictable ways to 

the citizenship question.” Id. at 2566. The census question would likely lead 

to “noncitizen households responding . . . at lower rates than other groups, 

which in turn would cause them to be undercounted.” Id. at 2565. This 

undercounting of third parties would injure the state and local governments 

by “diminishment of political representation, loss of federal funds, degradation 

of census data, and diversion of resources.” Id.

In both DAPA and Department of Commerce, the state plaintiffs 

demonstrated injury by showing that the challenged law would cause third 

parties to behave in predictable ways, which would inflict a financial injury on 

the states. The instant case is no different. The individual mandate commands

people to ensure that they have minimum health insurance coverage. That 

predictably causes more people to buy insurance, which increases the 

administrative costs of the states to report, manage, and track the insurance 

coverage of their employees and Medicaid recipients. 31

V.

Having concluded that both groups of plaintiffs have standing to bring 

this lawsuit, we must next determine whether the individual mandate is a 

 

31 The dissenting opinion contends that our opinion is inconsistent because we rely on 

Department of Commerce, in which the Court found that some individuals will predictably 

violate the law, in explaining why some individuals will predictably “follow the law regardless 

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constitutional exercise of congressional power. We conclude that it is not. We 

first discuss the Supreme Court’s holding in NFIB, and then we explain why, 

under that holding, the individual mandate is no longer constitutional. 

A.

The NFIB opinion was extremely fractured. In that case, Chief Justice 

Roberts wrote an opinion addressing several issues. Parts of that opinion 

garnered a majority of votes and served as the opinion of the Court.32 In 

relevant part, Part III-A of the Chief Justice’s opinion, joined by no other 

Justice, observed that “[t]he most straightforward reading of the [individual] 

mandate is that it commands individuals to purchase insurance,” and that, 

using that reading of the statute, the individual mandate is not a valid exercise 

of Congress’ power under the Interstate Commerce Clause. NFIB, 567 U.S. at 

562, 546–61 (Roberts, C.J.). The Constitution, he explained, “gave Congress 

the power to regulate commerce, not to compel it.” Id. at 555 (Roberts, C.J.). 

For similar reasons, the Chief Justice concluded that this command to 

 

of the incentives.” In a large group, there will predictably be some individuals in each 

category. Even the dissenting opinion accepts the Congressional Budget Office’s projection 

that some people will buy insurance solely because of a desire to comply with the law. See

Cong. Budget Office, Repealing the Individual Health Insurance Mandate: An Updated 

Estimate 1 (Nov. 2017).

32 As a general overview, Chief Justice Roberts’s opinion functioned in the following 

way. In Part III-A, Chief Justice Roberts said that the individual mandate was most 

naturally read as a command to buy insurance, which could not be sustained under either 

the Interstate Commerce Clause or the Necessary and Proper Clause. Though no Justice 

joined this part of the opinion, the four dissenting Justices—Justices Scalia, Kennedy, 

Thomas, and Alito—agreed with Part III-A in a separate opinion. In Part III-B, the Chief 

Justice wrote that even though the most natural reading of the individual mandate was 

unconstitutional, the Court still needed to determine whether it was “fairly possible” to read 

the provision in a way that saved it from being unconstitutional. In Part III-C, the Chief 

Justice—joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor—concluded that the 

provision could be construed as constitutional by reading the individual mandate, in 

conjunction with the shared responsibility payment, as a legitimate exercise of Congress’ 

taxing power. This last part of the opinion supported the Court’s ultimate judgment: that 

the individual mandate was constitutional as saved. 

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purchase insurance could not be sustained under the Constitution’s Necessary 

and Proper Clause. Id. The individual mandate was not “proper” because it 

expanded federal power, “vest[ing] Congress with the extraordinary ability to 

create the necessary predicate to the exercise of” its Interstate Commerce 

Clause powers. Id. at 560.

Though no other Justices joined this part of the Chief Justice’s opinion,

the “joint dissent”—joined by Justices Scalia, Kennedy, Thomas, and Alito—

reached the same conclusions on the Interstate Commerce Clause and 

Necessary and Proper Clause questions. Id. at 650–60 (joint dissent). A 

majority of the court, therefore, concluded that the individual mandate is not 

constitutional under either the Interstate Commerce Clause or the Necessary 

and Proper Clause.

This limited reading of the Interstate Commerce Clause—and, by 

extension, of the Necessary and Proper Clause—was necessary to preserving

“the country [that] the Framers of our Constitution envisioned.” Id. at 554 

(Roberts, C.J.). As Chief Justice Roberts observed, if the individual mandate 

were a proper use of the power to regulate interstate commerce, that power 

would “justify a mandatory purchase to solve almost any problem.” Id. at 553 

(Roberts, C.J.). If Congress can compel the purchase of health insurance today, 

it can, for example, micromanage Americans’ day-to-day nutrition choices 

tomorrow. Id. (Roberts, C.J.); see also id. at 558 (Roberts, C.J.) (reasoning that, 

under an expansive view of the Commerce Clause, nothing would stop the 

federal government from compelling the purchase of broccoli). 

An expansive reading of the Interstate Commerce Clause would be 

foreign to the Framers, who saw the clause as “an addition which few oppose[d]

and from which no apprehensions [were] entertained.” Id. at 554 (Roberts, 

C.J.) (quoting The Federalist No. 45, at 293 (J. Madison) (C. Rossiter ed.,

1961)). Elevating Congress’ power to “regulate commerce . . . among the 

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several states,” U.S. Const. art. I, § 8, cl. 3, to a power to create commerce 

among the several states would make a Leviathan of the federal government, 

“everywhere extending the sphere of its activity and drawing all power into its 

impetuous vortex.” NFIB, 567 U.S. at 554 (Roberts, C.J.) (quoting The 

Federalist No. 48, at 309 (J. Madison) (C. Rossiter ed., 1961)). Justice Scalia, 

writing for the joint dissenters, similarly noted that the more expansive 

reading of the Interstate Commerce Clause would render that provision a “font 

of unlimited power,” id. at 653 (joint dissent), or, in the words of Alexander 

Hamilton, a “hideous monster whose devouring jaws . . . spare neither sex nor 

age, nor high nor low, nor sacred nor profane,” id. (quoting The Federalist No. 

33, at 202 (C. Rossiter ed., 1961)).

In Part III-B, again joined by no other Justice, Chief Justice Roberts 

concluded that because the individual mandate found no constitutional footing 

in the Interstate Commerce or Necessary and Proper Clauses, the Supreme 

Court was obligated to consider the federal government’s argument that, as an 

exercise in constitutional avoidance, the mandate could be read not as a 

command but as an option to purchase insurance or pay a tax. This “option” 

interpretation of the statute could save the statute from being 

unconstitutional, as it would be justified under Congress’ taxing power. Id. at 

561–63 (Roberts, C.J.); see also id. at 562 (Roberts, C.J.) (“No court ought, 

unless the terms of an act rendered it unavoidable, to give a construction to it 

which should involve a violation, however unintentional, of the constitution.”) 

(quoting Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 448–49 (1830)); see also id.

at 563 (Roberts, C.J.) (“The question is not whether that is the most natural 

interpretation of the mandate, but only whether it is a ‘fairly possible’ one.”) 

(quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). 

In Part III-C, the Chief Justice—writing for a majority of the Court, 

joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan—undertook that 

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inquiry of determining whether it was “fairly possible” to read the individual 

mandate as an option and thereby save its constitutionality. See id. at 563–74 

(majority opinion). Chief Justice Roberts reasoned that the individual 

mandate could be read in conjunction with the shared responsibility payment 

in order to save the individual mandate from unconstitutionality. Read 

together with the shared responsibility payment, the entire statutory provision 

could be read as a legitimate exercise of Congress’ taxing power for four

reasons.

First and most fundamentally, the shared-responsibility payment 

“yield[ed] the essential feature of any tax: It produce[d] at least some revenue 

for the Government.” Id. at 564. Second, the shared-responsibility payment 

was “paid into the Treasury by taxpayers when they file their tax returns.” Id.

at 563 (alternations and internal quotation marks omitted). Third, the amount 

owed under the ACA was “determined by such familiar factors as taxable 

income, number of dependents, and joint filing status.” Id. Fourth and finally, 

“[t]he requirement to pay [was] found in the Internal Revenue Code and 

enforced by the IRS, which . . . collect[ed] it in the same manner as taxes.” Id.

at 563–64 (internal quotation marks omitted).

Because of these four attributes of the shared responsibility payment, 

the Court reasoned that “[t]he Federal Government does have the power to 

impose a tax on those without health insurance.” Id. at 575. The Court 

concluded that “[s]ection 5000A is therefore constitutional, because it can 

reasonably be read as a tax.”33 Id. We agree with the dissenting opinion that 

“this case begins and ought to end” with NFIB.

 

33 Seven Justices—Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, 

Breyer, Alito, and Kagan—agreed that the Act’s Medicaid-expansion provisions 

unconstitutionally coerced states into compliance. NFIB, 567 U.S. at 575–85 (plurality 

opinion); id. at 671–89 (joint dissent). But, in light of a severability clause, Part IV–B of the 

Chief Justice’s opinion concluded that the unconstitutional portion of the Medicaid provisions 

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B.

Now that the shared responsibility payment amount is set at zero,34 the 

provision’s saving construction is no longer available. The four central 

attributes that once saved the statute because it could be read as a tax no 

longer exist. Most fundamentally, the provision no longer yields the “essential 

feature of any tax” because it does not produce “at least some revenue for the 

Government.” Id. at 564. Because the provision no longer produces revenue, 

it necessarily lacks the three other characteristics that once rendered the 

provision a tax. The shared-responsibility payment is no longer “paid into the 

Treasury by taxpayer[s] when they file their tax returns” because the payment 

is no longer paid by anyone. Id. at 563 (alteration in original and internal 

quotation marks omitted). The payment amount is no longer “determined by 

such familiar factors as taxable income, number of dependents, and joint filing 

status.” Id. The amount is zero for everyone, without regard to any of these 

factors. The IRS no longer collects the payment “in the same manner as taxes” 

because the IRS cannot collect it at all. Id. at 563–64 (internal quotation marks 

omitted).

Because these four critical attributes are now missing from the shared 

responsibility payment, it is, in the words of the state plaintiffs, “no longer 

‘fairly possible’ to save the mandate’s constitutionality under Congress’ taxing 

 

could be severed. Id. at 585–88 (plurality opinion). Meanwhile, Justice Ginsburg, joined by 

Justice Sotomayor, disagreed that the Act’s mandatory Medicaid expansion was 

unconstitutional. Id. at 633 (Ginsburg, J., concurring in the judgment in part, and dissenting 

in part). Those two Justices concurred in the judgment with respect to the Chief Justice’s 

conclusion that the unconstitutional provisions could be severed from the remainder of the 

Act. Id. at 645–46 (Ginsburg, J., concurring in the judgment in part, and dissenting in part). 

The four dissenting Justices concluded that the Act’s Medicaid-expansion provisions were 

unconstitutionally coercive and rejected the relief of allowing states to opt into Medicaid 

expansion. Id. at 671–90 (joint dissent).

34 26 U.S.C. §§ 5000A(c)(2)(B)(iii), (c)(3)(A).

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power.” State Plaintiffs’ Br. at 32. The proper application of NFIB to the new 

version of the statute is to interpret it according to what Chief Justice 

Roberts—and four other Justices of the Court—said was the “most 

straightforward” reading of that provision: a command to purchase insurance. 

Id. at 562 (Roberts, C.J.). As the district court properly observed, “the only 

reading available is the most natural one.” Under that reading, the individual 

mandate is unconstitutional because, under NFIB, it finds no constitutional 

footing in either the Interstate Commerce Clause or the Necessary and Proper 

Clause. Id. at 546–61 (Roberts, C.J.); id. at 650–60 (joint dissent). 

The intervenor-defendant states have several arguments against this 

conclusion, all of which fail. They first argue that the saving construction of 

the individual mandate, interpreting the provision as an option to buy 

insurance or pay a tax, is still “fairly possible.” As the individual plaintiffs 

point out, the Court interpreted the individual mandate as an option only 

because doing so would save it from being unconstitutional. Accordingly, the 

intervenor-defendant states must show that the “option” would still be a 

constitutional exercise of Congress’ taxing power. To make that showing, the 

intervenor-defendant states reject the plaintiffs’ attempt to read a “some 

revenue” requirement into the Constitution’s Taxing and Spending Clause, 

arguing instead for a potential-to-produce-revenue requirement. The 

individual mandate, they say, is still set out in the Internal Revenue Code. It 

still provides a “statutory structure through which” Congress could eventually 

tax people for failing to buy insurance. It still includes references to taxable 

income, number of dependents, and joint filing status. 26 U.S.C. §§ 

5000A(b)(3), (c)(2), (c)(4). Further, it still does not apply to individuals who pay 

no federal income taxes. 26 U.S.C. § 5000A(e)(2).

The intervenor-defendant states have little support for this reading of 

the Taxing and Spending Clause. For starters, NFIB could not be clearer that 

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the “produc[tion]” of “at least some revenue for the Government”—not the 

potential to produce that revenue—is “the essential feature of any tax.” 567 

U.S. at 564 (majority opinion) (emphasis added). As the district court observed, 

when determining whether a statute is a tax, the actual production of revenue 

is “not indicative, not common—[but] essential.”

The intervenor-defendant states also find no support in United States v. 

Ardoin, 19 F.3d 177, 179–80 (5th Cir. 1994). In that unusual case, Congress 

had imposed a tax on machine guns, but subsequently outlawed machine guns 

altogether, which prompted the relevant agency to stop collecting the tax. Id.

at 179–80. The defendant was convicted not only for possessing a machine gun 

but also for failing to pay the tax, which remained on the books. Id. at 178. 

The court upheld the conviction on the basis that the tax law at issue could “be 

upheld on the preserved, but unused, power to tax or on the power to regulate 

interstate commerce.” Id. at 180. But the taxing power was “preserved” in 

Ardoin because it was non-revenue-producing only in practice whereas the 

“tax” here is actually $0.00 as written on the books.35 See Fed. Defendants’ Br.

at 32. Expanding Ardoin to apply here would, as the federal defendants point 

out, puzzlingly allow Congress to “prohibit conduct that exceeds its commerce 

power through a two-step process of first taxing it and then eliminating the tax 

while retaining the prohibition.” Fed. Defendants’ Br. at 32.

The intervenor-defendant states argue further that the individual 

mandate does not even need constitutional justification because it is merely a 

suggestion, not binding legislative action. The individual mandate, they 

contend, is no different from the Flag Code, which, though entered into the 

 

35 This distinction also disposes of the intervenor-defendant states’ concern about 

“cast[ing] constitutional doubt on taxes with delayed start dates or that Congress has 

temporarily suspended for periods of time.” Intervenor-Defendant States’ Br. at 43. In none 

of the examples the intervenor-defendant states cite did the statute purport to levy a “tax” of 

$0.00.

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pages of the U.S. Code, “was not intended to proscribe conduct.” Dimmitt v. 

City of Clearwater, 985 F.2d 1565, 1573 (11th Cir. 1993) (analyzing 36 U.S.C. 

§§ 174–76). This argument is just a repackaged version of their argument that 

the individual mandate can still be read as an option. But, as the state 

plaintiffs, the individual plaintiffs, and the federal defendants point out, the 

Supreme Court has already held that the “most straightforward” reading of 

the individual mandate—which emphatically demands that individuals “shall” 

buy insurance, 26 U.S.C. § 5000A(a)—is as a command to purchase health 

insurance. The Court then concluded that that command lacked constitutional 

justification. The zeroing out of the shared responsibility payment does not

render the provision any less of a command. Quite the opposite: Chief Justice 

Roberts concluded that the greater-than-zero shared responsibility payment 

actually converted the individual mandate into an option. NFIB, 567 U.S. at

563–64 (majority opinion). Now that the shared responsibility payment has 

been zeroed out, the only logical conclusion under NFIB is to read the 

individual mandate as a command, quite unlike the Flag Code. It is an 

individual mandate, not an individual suggestion.

Moreover, it is not true that when the Court adopts a limiting 

construction to avoid constitutional questions, that construction controls as to 

all applications of the statute, regardless of whether the original constitutional 

implications are present. The case on which the U.S. House relies involved 

different applications of an identical statute to different facts. Clark v. 

Martinez, 543 U.S. 371, 380 (2005) (rejecting the argument that “the 

constitutional concerns that influenced” a previous interpretation of a 

provision of the Immigration and Nationality Act were “not present for” the 

aliens at issue in that case). This case is readily distinguishable because the 

four characteristics that made the previous interpretation possible—the 

production of revenue and other tax-like features—have now been legislatively

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removed. The limiting construction is no longer available as a matter of 

statutory interpretation. The interpretation must accordingly change to 

comport with what five Justices of the Supreme Court have said is the “most 

straightforward reading” of that interpretation.36

The dissenting opinion justifies its continued reliance on the saving 

construction—even though it is no longer applicable—by citing Kimble v. 

Marvel Entm’t, LLC, 135 S. Ct. 2401 (2015). This approach fares no better. 

The dissenting opinion quotes Kimble to say that “in whatever way reasoned,” 

the Court’s interpretation “effectively become[s] part of the statutory scheme, 

subject . . . to congressional change.” Id. at 2409. The dissenting opinion 

correctly acknowledges that the individual mandate was never changed. But 

what did change was the provision that actually mattered: the shared 

responsibility payment. When it was set above zero, it could be saved as a tax, 

even though five justices agreed this was an unnatural reading. It would be 

puzzling if Congress could change a statute at will, entirely insulated from 

constitutional infirmity, just because the Court had previously used 

constitutional avoidance to save a previous version of the statute.

The intervenor-defendant states argue furthermore that the individual 

mandate can now be constitutional under the Interstate Commerce Clause 

because it does not compel anyone into commerce. This is again a repackaged 

version of their argument that the individual mandate is an option even 

 

36 Contrary to the dissenting opinion’s suggestion, a saving construction is no longer 

available. The canon of constitutional avoidance applies only “when statutory language is 

susceptible of multiple interpretations.” Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018). 

In NFIB, § 5000A was amenable to two possible interpretations. It was either “a command 

to buy insurance” or “a tax.” NFIB, 567 U.S. at 574 (Roberts, C.J.). After Congress zeroed 

out the shared responsibility payment, one of those possible interpretations fell away. What 

was then the “most straightforward reading” is now the only available reading: it is a 

“command to buy insurance” and “the Commerce Clause does not authorize such a command.” 

Id.

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without a revenue-generating shared responsibility payment, an argument 

that, as the state plaintiffs point out, the Supreme Court has already rejected. 

This argument, as the district court observed, is also logically inconsistent. If 

the individual mandate no longer truly compels anything, then it can hardly 

be said to be a “regulat[ion]” of interstate commerce. In the words of the 

district court, the intervenor-defendant states “hope to have their cake and eat 

it too.”37

Finally, we would be remiss if we did not engage with the dissenting 

opinion’s contention that § 5000A is not an exercise of legislative power. This 

would likely come as a shock to the legislature that drafted it, the president 

who signed it, and the voters who celebrated or lamented it. It is not surprising 

that the dissenting opinion can cite no case in which a federal court deems a 

duly enacted statute not an exercise of legislative power, much less a statute 

that clearly commands that an individual “shall” do something.38 The 

dissenting opinion is inconsistent on this point: it argues that the provision’s 

status as an exercise of legislative power fluctuates according to the amount of 

the shared responsibility payment while simultaneously contending that “if 

the text of the coverage requirement has not changed, its meaning could not 

 

37 Any argument that the individual mandate can now be sustained under the 

Necessary and Proper Clause fails for the same reasons. The individual mandate now must 

be read as a command, and five Justices in NFIB already rejected the argument that such a 

command could be sustained under the Necessary and Proper Clause. NFIB, 567 U.S. at 561 

(Roberts, C.J.); id. at 654–55 (joint dissent). 

38 The dissenting opinion’s theory of the “law that does nothing” results in some 

bizarre metaphysical conclusions. The ACA was signed into law in 2010. No one questions 

that when it was signed, § 5000A was an exercise of legislative power. Yet today, the 

dissenting opinion asserts, § 5000A is not an exercise of legislative power. So did Congress 

exercise legislative power in 2010, as seen from 2015? As seen from 2018? Does § 5000A 

ontologically re-emerge should a future Congress restore the shared responsibility payment? 

Perhaps, like Schrödinger’s cat, § 5000A exists in both states simultaneously. The dissenting 

opinion does not say. Our approach requires no such quantum musings.

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have changed either.” Our decision breaks no new ground. We simply observe 

that § 5000A was originally cognizable as either a command or a tax. Today, 

it is only cognizable as a command. It has always been an exercise of legislative 

power.

* * *

In NFIB, the individual mandate—most naturally read as a command to 

purchase insurance—was saved from unconstitutionality because it could be 

read together with the shared responsibility payment as an option to purchase 

insurance or pay a tax. It could be read this way because the shared 

responsibility payment produced revenue. It no longer does so. Therefore, the

most straightforward reading applies: the mandate is a command. Using that 

meaning, the individual mandate is unconstitutional. 

VI.

Having concluded that the individual mandate is unconstitutional, we 

must next determine whether, or how much of, the rest of the ACA is severable 

from that constitutional defect. On this question, we remand to the district 

court to undertake two tasks: to explain with more precision what provisions

of the post-2017 ACA are indeed inseverable from the individual mandate; and

to consider the federal defendants’ newly-suggested relief of enjoining the 

enforcement only of those provisions that injure the plaintiffs or declaring the 

Act unconstitutional only as to the plaintiff states and the two individual 

plaintiffs. We address each issue in turn.

A.

The Supreme Court has said that the “standard for determining the 

severability of an unconstitutional provision is well established.” Alaska 

Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). Unless it is “evident that the 

Legislature would not have enacted those provisions which are within its 

power, independently of that which is not, the invalid part may be dropped if 

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what is left is fully operative as a law.” Id. (quoting Buckley v. Valeo, 424 U.S. 

1, 108 (1976)).

This inquiry into counterfactual Congressional intent has been

crystallized into a “two-part . . . framework.” NFIB, 567 U.S. at 692 (joint 

dissent). First, if a court holds a statutory provision unconstitutional, it then 

determines whether the now-truncated statute will operate in “a manner 

consistent with the intent of Congress.” Alaska Airlines, 480 U.S. at 685

(emphasis omitted). This first step asks whether the constitutional 

provisions—standing on their own, without the unconstitutional provisions—

are “fully operative as a law,” not whether they would simply “operate in some 

coherent way” not designed by Congress. Free Enter. Fund v. Pub. Co. 

Accounting Oversight Bd., 561 U.S. 477, 509 (2010) (quoting New York v. 

United States, 505 U.S. 144, 186 (1992)); NFIB, 567 U.S. at 692 (joint dissent). 

Second, even if the remaining provisions can operate as Congress designed 

them to, the court must determine if Congress would have enacted the

remaining provisions without the unconstitutional portion. If Congress would 

not have done so, then those provisions must be deemed inseverable. Alaska 

Airlines, 480 U.S. at 685 (“[T]he unconstitutional provision must be severed 

unless the statute created in its absence is legislation that Congress would not 

have enacted.”); Free Enter. Fund, 561 U.S. at 509 (“[N]othing in the statute’s 

text or historical context makes it evident that Congress, faced with the 

limitations imposed by the Constitution, would have preferred no Board at all 

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to a Board whose members are removable at will.” (internal quotation marks 

omitted)).

Severability doctrine places courts between a rock and a hard place. On 

the one hand, courts strive to be faithful agents of Congress,39 which often 

means refusing to create a hole in a statute in a way that creates legislation 

Congress never would have agreed to or passed. See Murphy, 138 S. Ct. at 

1482 (“[Courts] cannot rewrite a statute and give it an effect altogether 

different from that sought by the measure viewed as a whole.” (quoting R.R. 

Ret. Bd. v. Alton R.R., 295 U.S. 330, 362 (1935))). On the other hand, courts 

often try to abide by the medical practitioner’s maxim of “first, do no harm,” 

aiming “to limit the solution to the problem” by “refrain[ing] from invalidating 

more of the statute than is necessary.” Ayotte v. Planned Parenthood of N. New 

England, 546 U.S. 320, 328 (2006); Collins v. Mnuchin, 938 F.3d 553, 592 (5th 

Cir. 2019) (en banc) (Haynes, J.) (severing unconstitutional removal restriction 

from remainder of Federal Housing Finance Agency’s enabling statute).40 In 

fact, courts have a “duty” to “maintain the act in so far as it is valid” if it 

“contains unobjectionable provisions separable from those found to be 

unconstitutional.” Alaska Airlines, 480 U.S. at 684 (quoting Regan v. Time, 

Inc., 468 U.S. 641, 652 (1984) (plurality opinion)).

The Supreme Court emphasizes this duty so strongly that commentators 

have identified “a presumption [of severability] implicit in the Court’s” 

severability jurisprudence. Adrian Vermeule, Saving Constructions, 85 Geo. 

L.J. 1945, 1950 n.28 (1997); see also Brian Charles Lea, Situational 

 

39 See Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 

17 Harv. J. L. & Pub. Pol’y 61, 63 (1994) (“[Courts] are supposed to be faithful agents, not 

independent principals.”).

40 Judge Haynes wrote the opinion of the court as to the question of remedy. See

Collins, 538 F.3d at 591.

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Severability, 103 Va. L. Rev. 735, 744 (2017) (“[C]ourts assume that a 

legislature intends for any unlawful part of its handiwork to be severable from 

all lawful parts in the absence of indicia of a contrary intention.”). This 

presumption is strongest when Congress includes a severability clause in the 

statutory text; however, “[i]n the absence of a severability clause . . . Congress’s

silence is just that—silence—and does not raise a presumption against 

severability.” Alaska Airlines, 480 U.S. at 686.

Nevertheless, the meticulous analysis required by severability doctrine

defies reliance on presumptions or generalities. The Supreme Court’s latest 

venture into severability territory, Murphy v. NCAA, 138 S. Ct. 1461 (2018), 

provides an example. There, the Court held that the entirety of the 

Professional and Amateur Sports Protection Act was unconstitutional because 

one of its provisions—authorizing private sports gambling—violated the anticommandeering doctrine. Id. at 1484. Justice Alito’s majority opinion 

separately explored each of the other operative provisions in the act, reasoning

that all of the act’s provisions were “obviously meant to work together” and be 

“deployed in tandem.” Id. at 1483. Because Congress would not have wanted 

the otherwise-valid provisions “to stand alone,” the Court declined to sever 

them. Id. This conclusion prompted a dissent from Justice Ginsburg, who

characterized the majority as “wield[ing] an ax . . . instead of using a scalpel to 

trim the statute” and reiterated that “the Court ordinarily engages in a salvage 

rather than a demolition operation.” Id. at 1489–90 (Ginsburg, J., dissenting).

These Murphy opinions draw attention to one difficulty inherent in 

severability analysis: selecting the right tool for the job. Justice Thomas’ 

concurring opinion goes further, providing two reasons why navigating 

between the Scylla of poking small but critical holes in complex, carefully 

crafted legislative bargains and the Charybdis of invalidating more duly 

enacted legislation than necessary stands “in tension with traditional limits on 

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judicial authority.” Murphy, 138 S. Ct. at 1485 (Thomas, J., concurring).

“[T]he judicial power is, fundamentally, the power to render judgments in 

individual cases,” and severability doctrine threatens to violate that vital 

separation-of-powers principle in more than one way. Id. (Thomas, J., 

concurring).

First, severability doctrine requires “a nebulous inquiry into 

hypothetical congressional intent,” as opposed to the usual judicial bread-andbutter of “determin[ing] what a statute means.” Id. at 1486 (Thomas, J., 

concurring) (quoting United States v. Booker, 543 U.S. 220 at 321 n.7 (2005) 

(Thomas, J., dissenting in part)). Because “Congress typically does not pass 

statutes with the expectation that some part will later be deemed 

unconstitutional,” id. at 1487, this requirement often leaves courts to exercise 

their imagination or “intuitions regarding what the legislature would have 

desired had it considered the severability issue.” Lea, supra, at 747. This, in 

turn, “enmeshes the judiciary in making policy choices” the Constitution

reserves for the legislature, David H. Gans, Severability as Judicial 

Lawmaking, 76 Geo. Wash. L. Rev. 639, 663 (2008), providing unelected 

judicial officers with cover to simply implement their own policy preferences.

Second, severability doctrine forces courts to “weigh in on statutory 

provisions that no party has standing to challenge, bringing courts 

dangerously close to issuing advisory opinions.” Murphy, 138 S. Ct. at 1487

(Thomas, J., concurring); see also Jonathan F. Mitchell, The Writ-of-Erasure 

Fallacy, 104 Va. L. Rev. 933, 936 (2018) (“The federal courts have no authority 

to erase a duly enacted law from the statute books, [but can only] decline to 

enforce a statute in a particular case or controversy.”41). As Justice Thomas 

 

41 If that is true, then courts are speaking loosely when they state that they are 

“invalidating” or “striking down” a law.

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points out, when Chief Justice Marshall famously declared that “[i]t is

emphatically the province and duty of the judicial department to say what the 

law is,” he justified that assertion by explaining that “[t]hose who apply [a]

rule to particular cases, must of necessity expound and interpret that rule.” 

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Yet severability 

doctrine directs courts to go beyond the necessary—that is, the application of 

a particular statutory provision to a particular case—to consider the viability 

of other provisions without even “ask[ing] whether the plaintiff has standing 

to challenge those other provisions.” Murphy, 138 S. Ct. at 1487 (Thomas, J., 

concurring). “[S]everability doctrine is thus an unexplained exception to the 

normal rules of standing, as well as the separation-of-powers principles that 

those rules protect.” Id.

Severability analysis is at its most demanding in the context of sprawling 

(and amended) statutory schemes like the one at issue here. The ACA’s 

framework of economic regulations and incentives spans over 900 pages of 

legislative text and is divided into ten titles. Most of the provisions directly 

regulating health insurance, including the one challenged in this case, are 

found in Titles I and II. See, e.g., 26 U.S.C. § 5000A(a) (individual mandate);

42 U.S.C. § 300gg-14(a) (requiring insurers offering family plans to cover adult 

children until age 26), §§ 18031–18044 (creating health insurance exchanges). 

The other titles generally amend Medicare (Title III), fund preventative 

healthcare programs (Title IV), seek to expand the supply of healthcare 

workers (Title V), enact anti-fraud requirements for Medicare/Medicaid 

facilities (Title VI), establish or expand drug regulations (Title VII), create a 

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voluntary long-term care insurance program (Title VIII), address taxation 

(Title IX), and improve health care for Native Americans (Title X42).

The plaintiffs group this host of provisions into three categories for ease 

of reference. State Plaintiffs’ Br. at 38. The first category includes the three 

core ACA provisions the Supreme Court has called “closely intertwined”: the 

individual mandate, 26 U.S.C. § 5000A(a), the guaranteed-issue requirement, 

42 U.S.C. §§ 300gg, 300gg-1, and the community-rating requirement, 42 U.S.C.

§ 300gg-4. King, 135 S. Ct. at 2487. The second category includes the 

remaining “[m]ajor provisions of the Affordable Care Act,” NFIB, 567 U.S. at 

697 (joint dissent), namely other provisions dealing with “insurance 

regulations and taxes,” “reductions in federal reimbursements to hospitals and 

other Medicare spending reductions,” the insurance “exchanges and their 

federal subsidies,” and “the employer responsibility assessment.” See, e.g., 25 

U.S.C. § 4980H; 26 U.S.C. § 36B; 42 U.S.C. §§ 1395ww, 18021–22. The third 

category includes a variety of minor provisions, for example taxes on certain 

medical devices or provisions requiring the display of nutritional content at 

restaurants. See, e.g., 21 U.S.C. § 343(q)(5)(H); 26 U.S.C. § 4191(a).

Moreover, Congress has made a number of substantive amendments to 

the ACA, revising the statute in 2010, 2011, 2014, 2017, and 2018. See, e.g., 

Medicare and Medicaid Extenders Act of 2010, Pub. L. No. 111-309, 124 Stat. 

3285 (2010) (modifying tax credit scale and Medicaid requirements);

Department of Defense and Full-Year Continuing Appropriations Act, 2011, 

Pub. L. No. 112-10, 125 Stat. 38 (2011) (repealing program that required some 

employers to provide some employees with vouchers for purchasing insurance);

Bipartisan Budget Act of 2015, Pub. L. No. 114-74, 129 Stat. 584 (2015) 

 

42 Title X also includes a number of miscellaneous provisions relating to the other 

titles.

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(repealing requirement that employers with more than 200 employees enroll 

new full-time employees in health insurance and continue coverage for current 

employees). Most of these amendments occurred prior to the 2017 legislation 

eliminating the shared responsibility payment, but some are more recent. See, 

e.g., Bipartisan Budget Act of 2018, Pub. L. No. 115-123, 132 Stat. 64 (2018) 

(repealing Independent Payment Advisory Board).

In summary, then, this issue involves a challenging legal doctrine 

applied to an extensive, complex, and oft-amended statutory scheme. All 

together, these observations highlight the need for a careful, granular 

approach to carrying out the inherently difficult task of severability analysis

in the specific context of this case. We are not persuaded that the approach to

the severability question set out in the district court opinion satisfies that 

need. The district court opinion does not explain with precision how particular

portions of the ACA as it exists post-2017 rise or fall on the constitutionality of 

the individual mandate. Instead, the opinion focuses on the 2010 Congress’ 

labeling of the individual mandate as “essential” to its goal of “creating 

effective health insurance markets,” 42 U.S.C. § 18091(2)(I), and then proceeds

to designate the entire ACA inseverable. In using this approach, the opinion

does not address the ACA’s provisions with specificity, nor does it discuss how 

the individual mandate fits within the post-2017 regulatory scheme of the 

ACA.

The district court opinion begins by addressing the 2010 version of the 

ACA. Starting with the text of the ACA, the district court opinion points out 

that the 2010 Congress incorporated into the text its view that “the absence of 

the [individual mandate] would undercut Federal regulation of the health 

insurance market.” 42 U.S.C. § 18091(2)(H). The district court opinion notes 

that the 2010 Congress devised the individual mandate, “together with the 

other provisions” of the ACA, to “add millions of new customers to the health 

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insurance market.” 42 U.S.C. § 18091(2)(C). In this way, the 2010 Congress

sought to “minimize th[e] adverse selection” that might otherwise occur if 

healthy individuals “wait[ed] to purchase health insurance until they needed 

care,” 42 U.S.C. § 18091(2)(I)—a strategic choice that would otherwise be 

available given the ACA’s guaranteed-issue and community-rating provisions. 

According to the district court opinion: because the 2010 Congress found the 

individuate mandate “essential” to this plan to reshape health insurance 

markets, the individual mandate is inseverable from the rest of the ACA “[o]n 

the unambiguous enacted text alone.”

The district court opinion also addresses ACA caselaw. Citing the 

Supreme Court’s decisions in NFIB and King, the district court opinion states

that “[a]ll nine Justices . . . agreed the Individual Mandate is inseverable from 

at least the pre-existing-condition provisions.” See NFIB, 567 U.S. at 548 

(Roberts, C.J.), 596–98 (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, 

JJ.), 695–96 (joint dissent of Scalia, Kennedy, Thomas, and Alito, JJ.); King, 

135 S. Ct. at 2487 (stating that the individual mandate is “closely intertwined” 

with the guaranteed-issue and community-rating provisions). As to the ACA’s 

other provisions, the district court opinion notes that the only group of Justices 

who fully considered whether the other major and minor provisions were 

severable was the joint dissent in NFIB—and those Justices would have held

that “invalidation of the ACA’s major provisions requires the Court to 

invalidate the ACA’s other provisions.” NFIB, 567 U.S. at 704 (joint dissent).

Beyond these points, the district court opinion states that its “conclusion 

would only be reinforced” if it “parse[d] the ACA’s provisions one by one.” The 

district court opinion arrives at this conclusion by reasoning that declaring 

only the individual mandate unlawful would disrupt the Act’s careful balance 

of “shared responsibility.” The district court opinion lists a few examples of 

how it would expect this to happen with regard to the ACA’s major provisions. 

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First, the district court opinion reasons that “the Individual Mandate reduces 

the financial risk forced upon insurance companies and their customers by the 

ACA’s major regulations and taxes.” If the individual mandate fell and the 

regulations and taxes did not, insurance companies would suffer a burden 

without enjoying a countervailing benefit—“a choice no Congress made and 

one contrary to the text.” Second, if a court were to declare just the individual 

mandate and the protections for preexisting conditions unlawful—but not the 

subsidies for health insurance—then the Act would be transformed into “a law 

that subsidizes the kinds of discriminatory products Congress sought to 

abolish at, presumably, the re-inflated prices it sought to suppress.” Third, 

Congress never intended “a duty on employers, see 26 U.S.C. § 4980H, to cover 

the skyrocketing insurance premium costs” that would “inevitably result from 

removing” the individual mandate. Fourth, because “the Medicaid-expansion 

provisions were designed to serve and assist fulfillment of the Individual 

Mandate,” removing the individual mandate would remove the need for that 

expansion.

As to the ACA’s minor provisions, the district court opinion states that it 

is “impossible to know which minor provisions Congress would have passed 

absent the Individual Mandate,” and that such an inquiry involves too much 

“legislative guesswork.” Relying on the 2010 Congress’ labeling of the 

individual mandate as “essential,” the district court opinion ultimately 

determines that there is “no reason to believe that Congress would have 

enacted” the minor provisions independently. The district court opinion 

similarly disclaims the ability to divine the intent of the 2017 Congress—which 

had zeroed out the shared responsibility payment but left the rest of the ACA 

untouched—labeling such an inquiry “a fool’s errand.” To the extent it 

analyzed the intent of the 2017 Congress, the district court opinion determines 

that Congress’ failure to repeal the individual mandate shows that it “knew 

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that provision is essential to the ACA.” In sum, the district court opinion 

concludes that the entire ACA is inseverable from the individual mandate.

The plaintiffs urge affirmance for essentially the same reasons stated in 

the district court opinion.43 As to the guaranteed-issue and community-rating 

provisions, they rely primarily on the 2010 Congress’ express findings linking 

those provisions to the individual mandate. State Plaintiffs’ Br. at 39–44; 

Individual Plaintiffs’ Br. at 47–48. The 2010 Congress found that, without the 

individual mandate, “many individuals would wait to purchase health 

insurance until they needed care,” creating an “adverse selection” problem. 42 

U.S.C. § 18091(2)(I); see also id. (finding that the individual mandate is

“essential to creating effective health insurance markets in which improved 

health insurance products that are guaranteed issue and do not exclude 

coverage of pre-existing conditions can be sold”). As to the remaining major 

and some of the minor provisions, the plaintiffs rely primarily on the joint 

dissent in NFIB for the proposition that leaving these provisions standing 

would “undermine Congress’ scheme of shared responsibility,” throwing off the 

balance interlocking insurance market reforms set out in the ACA. 567 U.S. 

at 698 (joint dissent) (internal quotation marks omitted); State Plaintiffs’ Br. 

at 44–49. As for the most minor provisions, they argue that these were “mere 

adjuncts” of the more important provisions and would not have been 

independently enacted. State Plaintiffs’ Br. at 50.

On appeal, the federal defendants agree with the plaintiffs that the 

entirety of the ACA is inseverable from the individual mandate. Fed.

Defendants’ Br. at 36–49. This marks a significant change in litigation 

position, as the federal defendants had previously submitted to the district 

 

43 The individual plaintiffs adopt the state plaintiffs’ severability arguments by 

reference. See Fed. R. App. P. 28(i).

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court that only the guaranteed-issue and community-rating provisions were 

inseverable. And that is not the only new argument the federal defendants 

make on appeal. For the first time on appeal, the federal defendants argue 

that the remedy in this case should be limited to enjoining enforcement of the 

ACA only to the extent it harms the plaintiffs. See Fed. Defendants’ Br. at 26–

29 (arguing that the individual “plaintiffs do not have standing to seek relief 

against provisions of the ACA that do not in any way affect them”); Fed. 

Defendants’ Supp. Br. at 10 (“[T]he judgment itself, as opposed to its 

underlying legal reasoning, cannot be understood as extending beyond the 

plaintiff states to invalidate the ACA in the intervenor states.”).

The intervenor-defendant states, meanwhile, argue that every provision 

of the ACA is severable from the individual mandate. They argue that the 

2017 Congress’ decision not to repeal or otherwise undermine any other 

provision of the ACA shows that it intended the rest of the ACA to remain 

operative—and that the court should not focus on the intent of the 2010 

Congress. Intervenor-Defendant States’ Br. at 34–35, 43. They point to the 

statements of several legislators in the 2017 Congress that seem to evince an 

assumption that other parts of the ACA would not be altered,44 and to 

Congress’ knowledge of reports highlighting the severe consequences a total 

 

44 Although we decline to opine on the merits of the parties’ arguments at this 

juncture, we caution against relying on individual statements by legislators to determine the 

meaning of the law. “[L]egislative history is not the law.” Epic Sys. Corp. v. Lewis, 138 S. 

Ct. 1612, 1631 (2018); see also Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620, 626 n.9 (5th 

Cir. 2013) (“[T]he authoritative statement is the statutory text, not the legislative history or 

any other extrinsic material.”) (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 

546, 568 (2005)); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of 

Legal Texts 392–93 (2012) (“Each member voting for the bill has a slightly different reason 

for doing so. There is no single set of intentions shared by all . . . [y]et a majority has 

undeniably agreed on the final language that passes into law . . . and that is the sole means 

by which the assembly has the authority to make law.”). And even among legislative history 

devotees, “floor statements by individual legislators rank among the least illuminating 

forms.” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 943 (2017).

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invalidation of the ACA would have. Intervenor-Defendant States’ Br. at 40. 

Finally, they argue that the passage of time since the ACA’s enactment has 

shown that the individual mandate is not all that crucial after all, and they 

provide examples of ACA provisions they say have nothing to do with insurance 

markets or became operative years before the individual mandate took effect. 

Intervenor-Defendant States’ Br. at 45.

Although we understand and share the district court’s general 

disinclination to engage in what it refers to as “legislative guesswork”—and 

what a Supreme Court Justice has described as “a nebulous inquiry into 

hypothetical congressional intent,” Murphy, 138 S. Ct. at 1486 (Thomas, J., 

concurring) (quoting Booker, 543 U.S. at 321 n.7 (Thomas, J., dissenting in 

part))—we nevertheless conclude that the severability analysis in the district 

court opinion is incomplete in two ways.

First, the opinion gives relatively little attention to the intent of the 2017 

Congress, which appears in the analysis only as an afterthought despite the 

fact that the 2017 Congress had the benefit of hindsight over the 2010 

Congress: it was able to observe the ACA’s actual implementation. Although 

the district court opinion states that burdening insurance companies with 

taxes and regulations without giving them the benefit of compelling the 

purchase of their product is “a choice no Congress made,” it only links this 

observation to the 2010 Congress. It does not explain its statement that the 

2017 Congress’ failure to repeal the individual mandate is evidence of an 

understanding that no part of the ACA could survive without it.

Second, the district court opinion does not do the necessary legwork of 

parsing through the over 900 pages of the post-2017 ACA, explaining how 

particular segments are inextricably linked to the individual mandate. The 

opinion lists a few examples of major provisions and cogently explains their 

link to the individual mandate, at least as it existed in 2010. For example, the 

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opinion discusses the individual mandate’s interplay with the guaranteedissue and community-rating provisions—all of which are found in Title I of the 

ACA—analyzing how Congress intended those provisions to work and how 

they might be expected to work without the individual mandate. But in order 

to strike the delicate balance that severability analysis requires, the district 

court must undertake a similar inquiry for each segment of the post-2017 law 

that it ultimately declares unlawful—and it has not done so. Instead, the 

district court opinion focuses on the 2010 Congress’ designation of the 

individual mandate as “essential to creating effective health insurance 

markets” and intention that, for at least one set of legislative goals, the 

individual mandate was intended to work “together with the other provisions” 

of the ACA. E.g., 42 U.S.C. § 18091(2)(I). On this basis, and on the views of 

the dissenting Justices in NFIB addressing the ACA as it stood in 2012, the 

district court opinion renders the entire ACA inoperative. More is needed to 

justify the district court’s remedy.

Take, for example, the ACA provisions in Title IV requiring certain chain

restaurants to disclose to consumers nutritional information like “the number 

of calories contained in the standard menu item.” Patient Protection and 

Affordable Care Act, Pub. L. No. 111-148, § 4206, 124 Stat. 119, 573–74 (2012) 

(codified at 21 U.S.C. § 343). Or consider the provisions in Title X establishing 

the level of scienter necessary to be convicted of healthcare fraud. Patient 

Protection and Affordable Care Act § 10606, 124 Stat. 119, 1006–09, (codified 

at 18 U.S.C. § 1347). Without more detailed analysis from the district court

opinion, it is unclear how provisions like these—which certainly do not directly 

regulate the health insurance marketplace—were intended to work “together” 

with the individual mandate. Similarly, the district court opinion’s assertion 

that “most of the minor provisions” of the ACA “are mere adjuncts of” or “aids

to the[] effective execution” of the project of the individual mandate is not

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supported by the actual analysis in the district court opinion, which does not 

dive into those provisions. Finally, some insurance-related reforms became 

law years before the effective date of the individual mandate; the district court 

opinion does not explain how provisions like these are inextricably linked to 

the individual mandate. See, e.g., 42 U.S.C. §§ 300gg-11, 300gg-14(a). 

Whatever the solution to the problem of “legislative guesswork” the district 

court opinion identifies in severability doctrine as it currently stands, it must 

include a careful parsing of the statutory scheme at issue to address questions 

like these.

We have long “require[d] that a district court explain its reasons for 

granting a motion for summary judgment in sufficient detail for us to 

determine whether the court correctly applied the appropriate legal test.” 

Wildbur v. ARCO Chem. Co., 974 F.2d 631, 644 (5th Cir. 1992). This is because 

we have “little opportunity for effective review” when the district court opinion 

leaves some reasoning “vague” or “unsaid.” Myers v. Gulf Oil Corp., 731 F.2d 

281, 284 (1984). “In such cases, we have not hesitated to remand . . . .” Id. In 

this case, the analysis the district court opinion provides is substantial and far 

exceeds the sort of cursory reasoning that normally prompts us to remand. Yet,

the vast, wide-ranging statutory scheme at issue in this case also far exceeds 

the comparatively small number of provisions at issue in other severability 

cases, see, e.g., Chadha, 462 U.S. at 931–35 (considering whether 8 U.S.C. 

§ 244(c)(2) could be severed from the rest of § 244)—especially cases in which 

entire legislative acts are determined to be inseverable, see, e.g., Murphy, 138 

S. Ct. at 1481–84 (considering whether part of 28 U.S.C. § 3702(1) could be 

severed from §§ 3701–04).

Moreover, the Supreme Court has remanded in the severability context

upon a determination that additional analysis was necessary. In Ayotte v. 

Planned Parenthood of Northern New England, 546 U.S. 320 (2006), the 

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Supreme Court took up the issue of what relief was appropriate upon a 

determination that a New Hampshire provision requiring parental notification 

prior to abortion was unconstitutional in some applications. Id. at 328–32. 

The Supreme Court determined that, although the district court’s choice to use 

“the most blunt remedy”—total inseverability—was “understandable” under 

its own precedent, more analysis was needed to determine “whether New 

Hampshire’s legislature intended the statute to be susceptible to” severability. 

Id. at 330–31. As a result, the Supreme Court remanded for “lower courts to 

determine legislative intent in the first instance.” Id.

We do the same here, directing the district court to employ a finertoothed comb on remand and conduct a more searching inquiry into which 

provisions of the ACA Congress intended to be inseverable from the individual 

mandate. We do not hold forth on just how fine-toothed that comb should be—

the district court may use its best judgment to determine how best to break the 

ACA down into constituent groupings, segments, or provisions to be analyzed. 

Nor do we make any comment on whether the district court should take into 

account the government’s new posture on appeal or what the ultimate outcome 

of the severability analysis should be.45 Although “we cannot affirm the order 

as it is presently supported,” we do not suggest what result will be merited 

“[a]fter a more thorough inquiry.” Unger v. Amedisys Inc., 401 F.3d 316, 325 

(5th Cir. 2005). We only note that the inquiry must be made, and that the 

district court—which has many tools at its disposal—is best positioned to 

determine in the first instance whether the ACA “remains ‘fully operative as a 

law’” and whether it is evident from “the statute’s text or historical context” 

 

45 The district court should also consider this court’s recent severability analysis in 

Collins v. Mnuchin, 938 F.3d 553 (5th Cir. 2019) (en banc). That opinion was issued after 

both the district court’s decision and the oral argument here.

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that Congress would have preferred no ACA at all to an ACA without the 

individual mandate. Free Enter. Fund, 561 U.S. at 509 (quoting New York, 505 

U.S. at 186).

It may still be that none of the ACA is severable from the individual 

mandate, even after this inquiry is concluded. It may be that all of the ACA is 

severable from the individual mandate. It may also be that some of the ACA 

is severable from the individual mandate, and some is not.46 But it is no small 

thing for unelected, life-tenured judges to declare duly enacted legislation 

passed by the elected representatives of the American people unconstitutional. 

The rule of law demands a careful, precise explanation of whether the 

provisions of the ACA are affected by the unconstitutionality of the individual 

mandate as it exists today.

B.

Remand is appropriate in this case for a second reason: so that the 

district court may consider the federal defendants’ new arguments as to the 

proper scope of relief in this case. The relief the plaintiffs sought in the district 

court was a universal nationwide injunction: an order that totally “enjoin[ed] 

Defendants from enforcing the Affordable Care Act and its associated 

regulations.” Before the district court, the federal defendants urged entry of a 

declaratory judgment stating that the guaranteed-issue and community-rating 

provisions—at that time, the only provisions the federal defendants argued 

were inseverable—were “invalid[ated]” by the zeroing out of the shared 

 

46 For an explanation of some, but certainly not all, of the potential conclusions with 

regard to severability, see Josh Blackman, Undone: The New Constitutional Challenge to 

Obamacare, 23 Tex. Rev. L. & Pol. 1, 28–51 (2018) (stating that the district court could halt 

the enforcement of just the individual mandate, halt the enforcement of the entire Act, or 

halt the enforcement of the community-rating and guaranteed-issue provisions along with 

the individual mandate, for example). The district court could also issue a declaratory 

judgment without enjoining any government official.

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responsibility payment. This would be “sufficient relief against the 

Government,” the federal defendants argued, because a declaratory judgment 

would “operate[] in a similar manner as an injunction” against the federal 

government, which would be “presumed to comply with the law” once the court 

provides “a definitive interpretation of the statute.”

Ultimately, of course, the district court opinion determined that no ACA 

provision was severable and resulted in a judgment declaring the entire ACA 

“invalid.” On appeal, the federal defendants first changed their litigation 

position to agree that no ACA provision was severable. Now they have changed 

their litigation position to argue that relief in this case should be tailored to 

enjoin enforcement of the ACA in only the plaintiff states—and not just that, 

but that the declaratory judgment should only reach ACA provisions that 

injure the plaintiffs. They argue that the Supreme Court has made clear that 

“[a] plaintiff’s remedy must be tailored to redress the plaintiff’s particular 

injury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018); see also Printz v. United 

States, 521 U.S. 898, 935 (1997) (reasoning that the Court has “no business 

answering” questions dealing with enforcement of provisions that “burden . . . 

no plaintiff”); see also Murphy, 138 S. Ct. at 1485–86 (Thomas, J., concurring). 

This argument came as a surprise to the plaintiffs, who explained at oral 

argument that they saw the government’s new position as a possible “bait and 

switch.” The federal defendants admitted at oral argument that they had 

raised the scope-of-relief issue on appeal “for the first time,” but argued that it 

was necessary to address, as it went to the district court’s Article III 

jurisdiction. The federal defendants therefore suggested that it “would be 

appropriate to remand to consider the scope of the judgment.”

The court agrees that remand is appropriate for the district court to 

consider these new arguments in the first instance. The district court did not 

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have the benefit of considering them when it crafted the relief now on appeal.47 

On remand, the district court—which is in a far better position than this court 

to determine which ACA provisions actually injure the plaintiffs—may 

consider the federal defendants’ position on the proper relief to be afforded. As 

part of this inquiry, the district court may consider whether the federal 

defendants’ arguments were timely raised, and whether limiting the remedy 

in this case is supported by Supreme Court precedent. Once again, we place 

no thumb on the scale as to the ultimate outcome; the district court is free to 

weigh the federal defendants’ changed arguments as it sees fit.

VII.

For these reasons, the judgment of the district court is AFFIRMED in 

part and VACATED in part. We REMAND for proceedings consistent with 

this opinion.

 

47 The consideration of limited relief may affect the intervenors as well. The district 

court is better suited to resolving these issues in the first instance.

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KING, Circuit Judge, dissenting:

Any American can choose not to purchase health insurance without legal 

consequence. Before January 1, 2018, individuals had to choose between 

complying with the Affordable Care Act’s coverage requirement or making a 

payment to the IRS. For better or worse, Congress has now set that payment

at $0. Without any enforcement mechanism to speak of, questions about the

legality of the individual “mandate” are purely academic, and people can

purchase insurance—or not—as they please. No more need be said; it has long 

been settled that the federal courts deal in cases and controversies, not 

academic curiosities.

The majority sees things differently and today holds that an 

unenforceable law is also unconstitutional. If the majority had stopped there, 

I would be confident its extrajurisdictional musings would ultimately prove 

harmless. What does it matter if the coverage requirement is unenforceable by 

congressional design or constitutional demand? Either way, that law does not 

do anything or bind anyone.

But again, the majority disagrees. It feels bound to ask whether 

Congress would want the rest of the Affordable Care Act to remain in force now 

that the coverage requirement is unenforceable. Answering that question 

should be easy, since Congress removed the coverage requirement’s only 

enforcement mechanism but left the rest of the Affordable Care Act in place. It 

is difficult to imagine a plainer indication that Congress considered the 

coverage requirement entirely dispensable and, hence, severable. And yet, the 

majority is unwilling to resolve the severability issue. Instead, it merely 

identifies serious flaws in the district court’s analysis and remands for a doover, which will unnecessarily prolong this litigation and the concomitant 

uncertainty over the future of the healthcare sector.

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I would vacate the district court’s order because none of the plaintiffs 

have standing to challenge the coverage requirement. And although I would 

not reach the merits or remedial issues, if I did, I would conclude that the 

coverage requirement is constitutional, albeit unenforceable, and entirely

severable from the remainder of the Affordable Care Act.

I.

To my mind, this case begins and ought to end with the Supreme Court’s

decision in National Federation of Independent Business v. Sebelius, 567 U.S. 

519 (2012). In that case, the Court held that the coverage requirement would 

be unconstitutional if it were a legal command, because neither the Commerce

Clause nor the Necessary and Proper Clause allows Congress to compel 

individuals to engage in commerce by purchasing health insurance. See NFIB, 

567 U.S. at 552, 560 (opinion of Roberts, C.J.); id. at 652-53 (joint dissent). The 

Court concluded, however, that the coverage requirement was constitutional, 

because—notwithstanding the most natural reading of the provision’s text—

the coverage requirement was not actually a legal command to purchase 

insurance. 

Instead, according to the NFIB Court, the coverage requirement “leaves 

an individual with a lawful choice to do or not do a certain act,” i.e., purchase 

health insurance. Id. at 574 (Roberts, C.J., majority opinion). All that is 

required, under this reading, is “a payment to the IRS” if one chooses not to 

purchase health insurance. Id. at 567. Beyond this shared-responsibility 

payment, there are no further “negative legal consequences to not buying 

health insurance,” and individuals who forgo insurance do not violate the law 

as long as they make the required payment. Id. at 567. “Those subject to the 

[coverage requirement] may lawfully forgo health insurance and pay higher 

taxes, or buy health insurance and pay lower taxes. The only thing they may 

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not lawfully do is not buy health insurance and not pay the resulting tax.” Id. 

at 574 n.11. Forcing individuals to make that choice was constitutional, per 

NFIB, because Congress could “impose a tax on not obtaining health 

insurance” by exercising its enumerated power to lay and collect taxes, duties, 

imposts, and excises. Id. at 570.

Contrary to the suggestion of the majority, which I address specifically 

infra at Part III, Congress did not alter the coverage requirement’s operation 

when it amended the ACA in 2017. See Tax Cuts and Jobs Act of 2017, Pub. L. 

No. 115-97, § 11081, 131 Stat. 2054, 2092 (“TCJA”). All the TCJA did, with 

respect to healthcare, was change the amount of the shared-responsibility 

payment to zero dollars. Thus, despite textual appearances, the post-TCJA 

coverage requirement does nothing more than require individuals to pay zero 

dollars to the IRS if they do not purchase health insurance, which is to say it 

does nothing at all. 

This insight, that the coverage requirement now does nothing, should be 

the end of this case. Nobody has standing to challenge a law that does nothing. 

When Congress does nothing, no matter the form that nothing takes, it does 

not exceed its enumerated powers. And since courts do not change anything 

when they invalidate a law that does nothing, every other law retains, or at 

least should retain, its full force and effect. 

II.

But as the majority goes well past NFIB, I respond. To begin, I 

emphasize the importance of the rule that a plaintiff must have standing to 

invoke a federal court’s power. This is not an anachronism lingering from some 

era in which empty formalities abounded in legal practice. Quite the opposite: 

“[T]he requirement that a claimant have ‘standing is an essential and 

unchanging part of the case-or-controversy requirement of Article III.’” Davis 

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v. FEC, 554 U.S. 724, 733 (2008) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 

555, 560 (1992)); see also Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 

(2014) (“Article III of the Constitution limits the jurisdiction of federal courts 

to ‘Cases’ and ‘Controversies.’” (quoting U.S. Const. art. III, § 2)). And “[n]o 

principle is more fundamental to the judiciary’s proper role in our system of 

government than the constitutional limitation of federal-court jurisdiction to 

actual cases or controversies.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 

(2013) (alteration in original) (quoting DaimlerChrysler Corp. v. Cuno, 547 

U.S. 332, 341 (2006)); accord Raines v. Byrd, 521 U.S. 811, 818 (1997).

The Constitution’s case-or-controversy requirement reflects the 

Framers’ view of the judiciary’s place among the coequal branches of the 

federal government: to fulfill “the traditional role of Anglo–American courts, 

which is to redress or prevent actual or imminently threatened injury to 

persons caused by private or official violation of law.” Summers v. Earth Island 

Inst., 555 U.S. 488, 492 (2009). Strict adherence to the case-or-controversy 

requirement—and to standing in particular—thus “serves to prevent the 

judicial process from being used to usurp the powers of the political branches.” 

Clapper, 568 U.S. at 408; see also Town of Chester v. Laroe Estates, Inc., 137 S. 

Ct. 1645, 1650 (2017) (“This fundamental limitation preserves the ‘tripartite 

structure’ of our Federal Government, prevents the Federal Judiciary from 

‘intrud[ing] upon the powers given to the other branches,’ and ‘confines the 

federal courts to a properly judicial role.’” (alteration in original) (quoting 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016))). Thus, “federal courts may 

exercise power only ‘in the last resort, and as a necessity,’ and only when 

adjudication is ‘consistent with a system of separated powers and [the dispute 

is one] traditionally thought to be capable of resolution through the judicial 

process.’” Allen v. Wright, 468 U.S. 737, 752 (1984) (alteration in original) 

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(citation omitted) (first quoting Chi. & Grand Trunk Ry. Co. v. Wellman, 143 

U.S. 339, 345 (1892); then quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)), 

abrogated on other grounds, Lexmark Int’l, Inc. v. Static Control Components, 

Inc., 572 U.S. 118 (2014). And needless to say, a federal court must conduct an 

“especially rigorous” standing inquiry “when reaching the merits of the dispute 

would force [it] to decide whether an action taken by one of the other two 

branches of the Federal Government was unconstitutional.” Amnesty Int’l, 568 

U.S. at 408 (quoting Raines, 521 U.S. at 819-20). “The importance of this 

precondition should not be underestimated as a means of ‘defin[ing] the role 

assigned to the judiciary in a tripartite allocation of power.’” Valley Forge 

Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 

474 (1982) (alteration in original) (quoting Flast, 392 U.S. at 95).

The standing doctrine polices this constitutional limit on the judiciary’s 

power “by ‘identify[ing] those disputes which are appropriately resolved 

through the judicial process.’” Susan B. Anthony List, 573 U.S. at 157 

(alteration in original) (quoting Lujan, 504 U.S. at 560). The party seeking 

redress in the courts has the burden to establish standing. See Spokeo, 136 S. 

Ct. at 1547. To do so, the plaintiff must show it has “(1) suffered an injury in 

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and 

(3) that is likely to be redressed by a favorable judicial decision.” Id. “To 

establish injury in fact, a plaintiff must show that he or she suffered ‘an 

invasion of a legally protected interest’ that is ‘concrete and particularized’ and 

‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548 (quoting 

Lujan, 504 U.S. 560). This means the injury must be “personal” to the plaintiff 

and, although the injury does not need to be “tangible,” “it must actually exist.” 

Id. at 1548-49.

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The plaintiffs’ evidentiary burden depends on the stage of the litigation. 

At each stage, the plaintiffs must demonstrate standing “with the manner and 

degree of evidence” otherwise required to establish the plaintiffs’ merits case. 

Lujan, 504 U.S. at 561. Thus, because this case comes to us on the plaintiffs’ 

own motion for summary judgment, the plaintiffs must conclusively prove all 

three elements of standing with evidence that “would ‘entitle [them] to a 

directed verdict if the evidence went uncontroverted at trial.’” Int’l Shortstop, 

Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting Golden 

Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). If a plaintiff meets 

its burden, the defendant can nevertheless defeat summary judgment “by 

merely demonstrating the existence of a genuine dispute of material fact.” Id.

at 1265. In other words, the plaintiffs here must show that, considering the 

summary-judgment record, all reasonable factfinders would agree that the 

plaintiffs demonstrate an injury traceable to the coverage requirement and 

redressable by a favorable decision. See Alonso v. Westcoast Corp., 920 F.3d 

878, 885-86 (5th Cir. 2019).

These general principles alone should make the majority’s error 

apparent. More specific authority illuminates it. I explain first why the 

majority errs in concluding the individual plaintiffs have standing, then I 

explain why the majority errs in concluding the state plaintiffs have standing. 

A.

The majority concludes that the individual plaintiffs have standing to 

challenge the coverage requirement in the Patient Protection and Affordable 

Care Act (the “ACA”), 26 U.S.C. § 5000A(a),1 because it forces them to purchase 

 

1 The coverage requirement is sometimes colloquially known as the “individual 

mandate.” For reasons that will become clear, this nickname can be misleading.

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health insurance that they would not purchase otherwise. The majority 

overlooks what will happen if the individual plaintiffs fail to purchase 

insurance: absolutely nothing. The individual plaintiffs will be no worse off by 

any conceivable measure if they choose not to purchase health insurance. Thus, 

whatever injury the individual plaintiffs have incurred by purchasing health 

insurance is entirely self-inflicted.

A long line of cases establishes that self-inflicted injuries cannot 

establish standing because a self-inflicted injury, by definition, is not traceable 

to the challenged action. See, e.g., Amnesty Int’l, 568 U.S. at 416 

(“[R]espondents cannot manufacture standing merely by inflicting harm on 

themselves . . . .”); Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (“The 

injuries to the plaintiffs’ fiscs were self-inflicted, resulting from decisions by 

their respective state legislatures. . . . No State can be heard to complain about 

damage inflicted by its own hand.”); Zimmerman v. City of Austin, 881 F.3d 

378, 389 (5th Cir.) (“[S]tanding cannot be conferred by a self-inflicted injury.”), 

cert. denied, 139 S. Ct. 639 (2018). When a plaintiff chooses to incur an expense, 

the plaintiff must show that the challenged law forced the plaintiff to incur 

that expense to avoid some other concrete injury. See Amnesty Int’l, 568 U.S. 

at 415-16 (concluding costs plaintiffs incurred trying to avoid surveillance were 

self-inflicted because plaintiffs’ fear of surveillance was speculative); 

Contender Farms, L.L.P. v. USDA, 779 F.3d 258, 266 (5th Cir. 2015) (finding 

plaintiff had standing to challenge regulations that required plaintiff to either 

“take additional measures” to comply with regulation or “face harsher, 

mandatory penalties” and prosecution). In other words, a plaintiff can show 

standing if the challenged act placed him between the proverbial rock and hard 

place. But without showing such a dilemma, a plaintiff “cannot manufacture 

standing” by expending costs to avoid an otherwise noncognizable injury, 

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which is exactly what the individual plaintiffs did here. Amnesty Int’l, 568 U.S. 

at 416.

The majority brushes off this authority by insisting—without 

explanation—that labeling the plaintiffs’ injuries self-inflicted “assumes” that 

the coverage requirement does not act as a legal command to purchase 

insurance, which the majority refuses to question at the standing stage. The 

majority misunderstands the argument. Even accepting that the coverage 

requirement acts as a legal command, the individual plaintiffs are still free to 

disregard that command without legal consequence. Therefore, any injury they 

incur by freely choosing to obtain insurance is still self-inflicted.

Nor does it matter that to avoid inflicting injury upon themselves, the 

plaintiffs would have to violate an unenforceable statute. Plaintiffs may 

challenge a statute that requires them “to take significant and costly 

compliance measures or risk criminal prosecution.” Virginia v. Am. Booksellers 

Ass’n, 484 U.S. 383, 392 (1988) (emphasis added); see also, e.g., Int’l Tape Mfrs. 

Ass’n v. Gerstein, 494 F.2d 25, 28 (5th Cir. 1974) (explaining that standing to 

challenge a statute requires a “realistic possibility that the challenged statute 

will be enforced to [the plaintiff’s] detriment”). But “[w]hen plaintiffs ‘do not 

claim that they have ever been threatened with prosecution, that a prosecution 

is likely, or even that a prosecution is remotely possible,’ they do not allege a 

dispute susceptible to resolution by a federal court.” Babbitt v. United Farm 

Workers Nat’l Union, 442 U.S. 289, 298-99 (1979) (quoting Younger v. Harris, 

401 U.S. 37, 42 (1971)); see also Poe v. Ullman, 367 U.S. 497, 507 (1961) 

(Frankfurter, J., plurality) (“It is clear that the mere existence of a state penal 

statute would constitute insufficient grounds to support a federal court’s 

adjudication of its constitutionality in proceedings brought against the State’s 

prosecuting officials if real threat of enforcement is wanting.”); cf. Zimmerman, 

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881 F.3d at 389-90 (“[T]o confer standing, allegations of chilled speech or ‘selfcensorship must arise from a fear of prosecution that is not “imaginary or 

wholly speculative.”’” (quoting Ctr. for Individual Freedom v. Carmouche, 449 

F.3d 655, 660 (5th Cir. 2006))).

Ullman illustrates this principle well.2 The plaintiffs there sought to 

challenge Connecticut’s criminal prohibition on contraception. Ullman, 367 

U.S. at 498 (Frankfurter, J., plurality). But in the more than 75 years that the 

statute had been on the books, only one violation had been prosecuted—and 

even that was a collusive prosecution brought to challenge the law. Id. at 501-

02. The Court dismissed the challenge for lack of standing, holding that “[t]he 

fact that Connecticut has not chosen to press the enforcement of this statute 

deprives these controversies of the immediacy which is an indispensable 

condition of constitutional adjudication.” Id. at 508. The Court explained that 

it could not “be umpire to debates concerning harmless, empty shadows.” Id.3

Ullman makes this an easy case. Connecticut’s contraception law at least 

allowed the possibility of enforcement, even if it was speculative and unlikely 

 

2 The majority dismisses Ullman as an adversity case. Nonetheless, as this court and 

the Supreme Court have repeatedly recognized, Ullman grounds its analysis in terms of 

standing and ripeness. See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1000 (1982); Roark & 

Hardee LP v. City of Austin, 522 F.3d 533, 544 (5th Cir. 2008); Thomes v. Equitable Sav. & 

Loan Ass’n, 837 F.2d 1317, 1318 (5th Cir. 1988). In any event, Ullman is just one example; 

other cases demonstrate this concept just as well. See, e.g., Driehaus, 573 U.S. at 158-59 

(“One recurring issue in our cases is determining when the threatened enforcement of a law 

creates an Article III injury. . . . [W]e have permitted pre-enforcement review under 

circumstances that render the threatened enforcement sufficiently imminent.”).

3 The lead opinion in Ullman garnered only a four-judge plurality. But Justice 

Brennan, who concurred in the judgment, wrote that he “agree[d] that this appeal must be 

dismissed for failure to present a real and substantial controversy” and that “until the State 

makes a definite and concrete threat to enforce these laws . . . this Court may not be compelled 

to exercise its most delicate power of constitutional adjudication.” Ullman, 367 U.S. at 509 

(Brennan, J., concurring in judgment). Accordingly, five Justices agreed that plaintiffs lacked 

standing absent any real threat of enforcement.

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to ever occur. Here, as I cannot say often enough, the coverage requirement

has no enforcement mechanism. It is impossible for the individual plaintiffs to 

ever be prosecuted (or face any other consequences) for violating it. In 

“find[ing] it necessary to pass on” the coverage requirement, the majority 

“close[s] [its] eyes to reality.” Id.4

The majority does not engage with the lessons of Ullman and its progeny. 

The closest it comes is in its citation to Texas v. EEOC, 933 F.3d 433 (5th Cir. 

2019). That case does not abrogate Ullman, Younger, Babbitt, American 

Booksellers, or Tape Manufacturers—nor could it. In Texas v. EEOC, Texas 

challenged EEOC administrative guidance stating that employers who screen 

out job applicants with criminal records could be held liable for disparateimpact discrimination. Id. at 437-38. The EEOC argued that Texas did not 

have standing to challenge the guidance because the guidance reflected only 

the EEOC’s interpretation of Title VII, and the Attorney General, not the 

EEOC, has the sole power to enforce Title VII against states. See Brief for 

Appellants Cross-Appellees at 18-19, Texas v. EEOC, 933 F.3d 433 (5th Cir. 

2019) (No. 18-10638). In rejecting that argument, this court explained that 

Title VII’s enforcement scheme is not so simple. Although the EEOC may not 

itself bring enforcement actions against states, it may investigate states and 

refer cases to the Attorney General for enforcement actions. EEOC, 933 F.3d 

at 447. Therefore, “the possibility of investigation by EEOC and referral to the 

Attorney General for enforcement proceedings if it fails to align its laws and 

 

4 For the same reason, it does not matter that the district court “expressly found” that 

the individual plaintiffs “are obligated to” purchase health insurance. Even ignoring the 

conclusory nature of this supposed finding of fact, it is not the abstract obligation that 

matters; it is the concrete consequences, if any, that follow from a violation of that obligation. 

And the district court did not find (and there would be no basis for it to find) that the 

individual plaintiffs would face any consequences.

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policies with the Guidance” put pressure on Texas to conform to the EEOC’s 

guidance. Id.

In other words, even absent a direct threat of a formal enforcement 

action from the EEOC, Texas faced other consequences for disobeying the 

guidance—including the possibility that the Attorney General would enforce 

Title VII against it. In fact, we noted that “[o]ne Texas agency ha[d] already 

been required to respond to a charge of discrimination filed with EEOC based 

on its no-felon hiring policy.” Id. at 447 n.26. The majority here cites no similar 

concrete consequences that will (or even plausibly could) follow if the plaintiffs 

violate the coverage requirement.

My conclusion that individual plaintiffs lack standing is only bolstered 

by a unanimous opinion issued mere weeks ago by a panel that included the 

author of today’s majority opinion. In that case, the court held that Austin, 

Texas could not use a suit against the Texas Attorney General to challenge a

state statute, which the Attorney General was authorized to enforce, that

barred the city from enforcing one of its ordinances. City of Austin v. Paxton, 

No. 18-50646, ___ F.3d ____, 2019 WL 6520769, at *6 (5th Cir Dec. 4, 2019). 

Although the Paxton court based its holding on sovereign immunity, it looked 

to “our standing jurisprudence,” and “note[d] that it’s unlikely the City had 

standing,” because it did not show that the Attorney General would likely 

“inflict ‘future harm’” by enforcing the statute against Austin. Id. at *6-7. If 

standing was absent in Paxton because enforcement was insufficiently 

probable, I have no idea why standing should be present in this case, where 

enforcement of the challenged portion of the ACA is altogether impossible. 

In sum, even if the unenforceable coverage requirement must be read as 

a command to purchase health insurance, it does not harm the individual 

plaintiffs because they can disregard it without consequence. Binding 

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precedent squarely establishes that plaintiffs may not sue in such 

circumstances—and with good reason. The great power of the judiciary should 

not be invoked to disrupt the work of the democratic branches when the 

plaintiffs can easily avoid injury on their own.5

B.

The majority’s conclusion that the state plaintiffs have standing to 

challenge the coverage requirement fares no better. I would deny the state 

plaintiffs standing because there is no evidence in the record, much less 

conclusive evidence, to support the state plaintiffs’ alleged injuries.

1.

The majority first concludes that the state plaintiffs have standing 

because it believes that the coverage requirement increases the number of 

state employees who enroll in the states’ employee healthcare programs. And 

with more enrollees, the logic goes, the states as employers must file more 

forms with the IRS at a higher cost to the states.

The majority’s biggest mistake is that it ignores the posture of this case: 

the defendants appeal from the district court’s order granting summary 

judgment to the plaintiffs. Accordingly, the state plaintiffs face a tremendous 

evidentiary burden—they must produce evidence so conclusive of the coverage 

 

5 The majority’s suggestion that NFIB, 567 U.S. at 552 (opinion of Roberts, C.J.), 

supports the individual plaintiffs’ standing does not warrant above-the-line attention. In 

short, the NFIB Court did not address standing. See id. at 530-708. At the time NFIB was 

decided, the coverage requirement was set to take effect with the shared-responsibility 

payment as an enforcement mechanism. And there is no indication that any of the NFIB 

plaintiffs were exempt from the shared-responsibility payment. Thus, even if the majority 

seeks to infer from NFIB some jurisdictional ruling in violation of the Supreme Court’s 

“repeated[]” command “that the existence of unaddressed jurisdictional defects has no 

precedential effect,” Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996), NFIB offers no inferences 

of value for the majority to draw. Further, counsel’s answer to a Justice’s hypothetical 

question does not bind this court.

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requirement’s effect on their healthcare-administration costs that the evidence 

“would ‘entitle [them] to a directed verdict if the evidence went uncontroverted 

at trial.’” Int’l Shortstop, 939 F.2d at 1264-65 (quoting Golden Rule Ins., 755 F. 

Supp. at 951).6 And the state plaintiffs provided no evidence at all, never mind 

conclusive evidence, to support the dubious notion that even a single state 

employee enrolled in one of state plaintiffs’ health insurance programs solely 

because of the unenforceable coverage requirement.7

The majority relies on affidavits from several of the state plaintiffs’ 

healthcare administrators. But these affidavits only establish that the state 

plaintiffs incur costs complying with the IRS reporting requirements found in 

26 U.S.C. §§ 6055(a) and 6056(a). And as the majority recognizes, these 

requirements are distinct from the coverage requirement. Accordingly, to trace 

the state plaintiffs’ reporting burden to the coverage requirement, the majority 

must additionally show that at least some state employees have enrolled in 

employer-sponsored health insurance solely because of the unenforceable 

coverage requirement. The majority comes up empty at this step, pointing only 

to a conclusory statement from a South Dakota human-resources director 

claiming that the coverage requirement, not §§ 6055(a) and 6056(a), caused 

South Dakota to incur its reporting expenses. This will not do. See, e.g., Lujan v. Nat’l 

Wildlife Fed’n, 497 U.S. 871, 888 (1990) (“The object of [summary judgment] is 

 

6 The district court was free to—but did not—make findings of jurisdictional fact, 

which we would review for clear error. See Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th 

Cir. 2005). Indeed, the district court did not address the state plaintiffs’ standing at all. Thus, 

for the state plaintiffs to establish standing on their own motion for summary judgment, they 

must show the summary-judgment evidence is conclusive.

7 The majority misunderstands my position. See Maj. Op. 32 n.31. The state plaintiffs 

do not need to identify a “specific” person that is likely to enroll, but they still must establish 

that at least one state employee will enroll as a result of the post-TCJA coverage requirement. 

Otherwise, the state plaintiffs’ injuries are not traceable to the provision they challenge and 

would not be redressed by its elimination.

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not to replace conclusory allegations of the complaint or answer with 

conclusory allegations of an affidavit.”); Shaboon v. Duncan, 252 F.3d 722, 737 (5th Cir. 

2001) (

“[U]nsupported affidavits setting forth ‘ultimate or conclusory facts and 

conclusions of law’ are insufficient to either support or defeat a motion for 

summary judgment.” (alteration in original) (quoting Orthopedic & Sports Injury Clinic v. 

Wang Labs., Inc., 922 F.2d 220, 225 (5th Cir. 1991))).8

Citing Department of Commerce v. New York, 139 S. Ct. 2551 (2019), the 

majority argues the state plaintiffs can establish standing by “showing that 

third parties will likely react in predictable ways” to the coverage requirement. 

Id. at 2566. But the majority fails to explain why state employees who do not 

want health insurance would nevertheless predictably enroll in health 

insurance solely because an unenforceable statute, here the coverage 

requirement, directs them to do so. What the majority fails to mention in its 

discussion of Department of Commerce is that the “predictable” behavior at 

issue there was individuals “choosing to violate their legal duty to respond to 

 

8 The majority suggests we must accept this statement as true because the defendants 

did not “challenge” this evidence. The majority cites no authority for this proposition, and I 

am at a loss to understand where the majority came up with its challenge rule. I know of 

nothing in the Federal Rules of Civil Procedure or the caselaw requiring litigants to 

“challenge” conclusory statements in declarations. On the contrary, courts in this circuit 

regularly confront and disregard conclusory statements in the summary-judgment record. 

See, e.g., Tex. Capital Bank N.A. v. Dall. Roadster, Ltd. (In re Dall. Roadster, Ltd.), 846 F.3d 

112, 124 (5th Cir. 2017); Brown v. Mid-Am. Apartments, 348 F. Supp. 3d 594, 602-03 (W.D. 

Tex. 2018). The district courts and litigants of this circuit will be surprised to learn about the 

majority’s new summary-judgment rule.

The majority also claims that the statement is not conclusory. But nothing in the 

affidavit addresses the post-TCJA coverage requirement. The affiant states that his 

knowledge is “related to the enactment of the ACA,” which occurred in 2010. He focuses on 

“financial costs associated with ACA regulations” and concludes that “South Dakota would 

be significantly burdened if the ACA remained law.” The affidavit does not explain how the 

post-TCJA coverage requirement harms South Dakota. Such generalities, untethered to the 

actual law at issue in this appeal, cannot establish standing—especially not at the summaryjudgment stage.

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the census.” Id. at 2565 (emphasis added). Thus, Department of Commerce 

shows that people will predictably violate the law when sufficiently 

incentivized to do so. This directly contradicts the assumption undergirding 

much of the majority’s analysis—that people tend to follow the law regardless 

of the incentives. And state employees who do not want to enroll in insurance 

have every incentive to violate the coverage requirement.9

2.

The majority similarly argues that the coverage requirement increases 

the number of individuals enrolled in the state plaintiffs’ Medicaid programs. 

This argument fails for the same reason: the state plaintiffs produce no 

evidence—let alone conclusive evidence—showing that anyone has enrolled in 

their Medicaid programs solely because of the unenforceable coverage 

requirement. To this end, the best the majority can scrape up is a statement 

from Teresa MacCartney, a Georgia budget official, stating that “[a]fter the 

implementation of the ACA, [Georgia] experienced increased enrollment of 

individuals already eligible for Medicaid benefits under pre-ACA eligibility 

standards.” The majority’s takeaway is that the coverage requirement caused 

this increase. Maybe so. But MacCartney’s statement refers specifically to the 

coverage requirement at the time of the ACA’s enactment, when the coverage 

 

9 A Congressional Budget Office report released shortly before Congress repealed the 

shared-responsibility payment further supports this notion. It concluded:

If the [shared-responsibility payment] was eliminated but the [coverage 

requirement] itself was not repealed . . . . only a small number of people who 

enroll in insurance because of the [coverage requirement] under current law 

would continue to do so solely because of a willingness to comply with the law.

Cong. Budget Office, Repealing the Individual Health Insurance Mandate: An Updated 

Estimate at 1 (2017) (hereinafter “CBO Report”). On this record, we have been given no 

reason to believe that any of the state plaintiffs’ employees are among this “small number of 

people.” Id.

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requirement interacted with the shared-responsibility payment. This 

statement provides no insight into how the coverage requirement affects 

Medicaid rolls after the shared-responsibility payment’s repeal. In fact, 

MacCartney signed her declaration on May 14, 2018, more than seven months 

before the shared-responsibility payment’s repeal went into effect. See Budget 

Fiscal Year, 2018, Pub. L. No. 115-97, § 11081(b), 131 Stat. 2054, 2092 (2017).

Accordingly, the majority’s analysis again rests on the necessary 

assumption that people will obey the coverage requirement regardless of the 

incentives, in direct contradiction to Department of Commerce. And because 

Medicaid is available to eligible recipients at little to no cost, it is especially 

unlikely that the unenforceable coverage requirement would play any 

significant part in anyone’s decision to enroll. It belies common sense to 

conclude that anyone who would otherwise pass on the significant benefits of 

Medicaid would be motivated to enroll solely because of an unenforceable law.

In sum, the majority cites no actual evidence tying any costs the state 

plaintiffs have incurred to the unenforceable coverage requirement. The state 

plaintiffs accordingly cannot show an injury traceable to the coverage 

requirement, so they do not have standing to challenge the coverage 

requirement.

III.

I would not reach the merits of this case because, as explained in Part II, 

I would vacate the district court’s order for lack of standing. But as the majority 

errs on the merits too, I voice my disagreement.

“Neither the Act nor any other law attaches negative legal consequences 

to not buying health insurance, beyond requiring a payment to the IRS.” NFIB, 

567 U.S. at 568 (Roberts, C.J., majority opinion). Now that Congress has zeroed 

out that payment, the coverage requirement affords individuals the same 

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choice individuals have had since the dawn of private health insurance, either 

purchase insurance or else pay zero dollars. Thus, to my mind, the majority’s 

focus on whether Congress’s taxing power or the Necessary and Proper Clause 

authorizes Congress to pass a $0 tax is a red herring; the real question is 

whether Congress exceeds its enumerated powers when it passes a law that 

does nothing.10 And of course it does not.11 Congress exercises its legislative 

power when it “alter[s] the legal rights, duties and relations of persons.” INS 

v. Chadha, 462 U.S. 919, 952 (1983); cf. id. (“Not every action taken by either 

House is subject to the bicameralism and presentment requirements of Art. I. 

Whether actions taken by either House are, in law and fact, an exercise of 

legislative power depends not on their form but upon ‘whether they contain 

matter which is properly to be regarded as legislative in its character and 

effect.’” (citation omitted) (quoting S. Rep. No. 1335, 54th Cong., 2d Sess., 8 

(1897))).

Lest the majority mistake my position and end up shadowboxing with 

“bizarre metaphysical conclusions,” “quantum musings,” or ersatz

inconsistencies, Maj. Op. at 44 & n.40, I need to make something explicit at 

the outset. The TCJA did not change the text or the meaning of the coverage 

requirement, but it did change the real-world effects it produces. Before the 

TCJA, the two options afforded by the coverage requirement—purchasing 

insurance or making a shared-responsibility payment—were both 

 

10 “In litigation generally, and in constitutional litigation most prominently, courts in 

the United States characteristically pause to ask: Is this conflict really necessary?” Arizonans 

for Official English v. Arizona, 520 U.S. 43, 75 (1997). The majority would do well if it paused 

to ask whether it is necessary for a federal court to rule on whether the Constitution 

authorizes a $0 tax or otherwise prohibits Congress from passing a law that does nothing.

The absurdity of these inquiries highlights the severity of the majority’s error in finding the 

plaintiffs have standing to challenge this dead letter. 

11 The majority does not argue otherwise.

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burdensome, but Congress could force individuals to choose one of those 

options by exercising its Taxing Power. Today, the shared-responsibility 

payment’s meaning has not changed—it still gives individuals the choice to

purchase insurance or make a shared-responsibility payment—but the amount 

of that payment is zero dollars, which means that the coverage requirement 

now does nothing. The majority’s contrary conclusion rests on the premise that 

the coverage requirement compels individuals to purchase health insurance.

With this understanding, the majority says that the coverage requirement does 

exactly what the Supreme Court said it cannot do: compel participation in 

commerce. See NFIB, 567 U.S. at 552 (opinion of Roberts, C.J.); id. at 652-53 

(joint dissent). This conclusion follows fine from the premise, but the premise 

is wrong. Despite its seemingly mandatory language, the coverage requirement 

does not compel anyone to purchase health insurance.

In NFIB, although five Justices agreed that “[t]he most straightforward 

reading of the [coverage requirement] is that it commands individuals to 

purchase insurance,” id. at 562 (opinion of Roberts, C.J.); accord id. at 663 

(joint dissent), applying the canon of constitutional avoidance, the Court 

rejected this interpretation. Instead, the Court interpreted the coverage 

requirement to offer applicable individuals a “lawful choice” between 

purchasing health insurance and paying the shared-responsibility payment, 

which the Court interpreted as a valid exercise of Congress’s taxing power. Id. 

at 574 (Roberts, C.J., majority opinion). This is a permissible construction, the 

Court concluded, because “[w]hile the [coverage requirement] clearly aims to 

induce the purchase of health insurance, it need not be read to declare that 

failing to do so is unlawful.” Id. at 567-68. The Court observed that “[n]either 

the [ACA] nor any other law attaches negative legal consequences to not 

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buying health insurance, beyond requiring a payment to the IRS.” Id. at 568. 

And the Court further explained:

Indeed, it is estimated that four million people each year will 

choose to pay the IRS rather than buy insurance. We would expect 

Congress to be troubled by that prospect if such conduct were 

unlawful. That Congress apparently regards such extensive failure 

to comply with the [coverage requirement] as tolerable suggests 

that Congress did not think it was creating four million outlaws.

Id. (citation omitted).

The NFIB Court’s application of constitutional avoidance as an 

interpretive tool does not mean that the Court rewrote the statute. Only 

Congress can do that. Rather, the Court was “choosing between competing 

plausible interpretations of a statutory text, resting on the reasonable 

presumption that Congress did not intend the alternative which raises serious 

constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381 (2005). “The canon 

is thus a means of giving effect to congressional intent, not of subverting it.” 

Id. at 382. Accordingly, when the Court ruled in NFIB that “[t]hose subject to 

the [coverage requirement] may lawfully forgo health insurance,” NFIB, 567 

U.S. at 574 n.11, that was an authoritative determination regarding what the 

text of the coverage requirement meant and what Congress intended.

The majority pushes aside NFIB’s construction, acting as though the fact 

that the NFIB Court applied the canon of constitutional avoidance means that 

its interpretation no longer governs following the repeal of the sharedresponsibility payment. But when the Court construes statutes, its 

“interpretive decisions, in whatever way reasoned, effectively become part of 

the statutory scheme, subject (just like the rest) to congressional change.” 

Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015) (emphasis added). 

While Congress can change its mind and could have amended the coverage 

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requirement to turn the “lawful choice” described by NFIB, 567 U.S. at 574,

into an unwavering command, the majority does not suggest that Congress 

ever made such a choice. Sure, Congress amended the shared-responsibility 

payment in 2017. Yet as the district court went to great lengths to establish 

and the majority is elsewhere eager to point out, the coverage requirement and 

the shared-responsibility payment are distinct provisions. See Maj. Op. at 19 

(“To bring a claim against the [coverage requirement], therefore, the plaintiffs 

needed to show injury from the individual mandate—not from the shared 

responsibility payment.”); Texas v. United States, 340 F. Supp. 3d 579, 596 

(N.D. Tex. 2018) (“It is critical to clarify something at the outset: the sharedresponsibility payment, 26 U.S.C. § 5000A(b), is distinct from the [coverage 

requirement], id. § 5000A(a).”). And Congress did not touch the text of the 

coverage requirement when it amended the shared-responsibility payment. 

See Budget Fiscal Year, 2018, Pub. L. No. 115-97, § 11081. Compare 

§ 5000A(a), with 26 U.S.C. § 5000A(a) (2011). At risk of stating the obvious, if 

the text of the coverage requirement has not changed, its meaning could not 

have changed either. By “giv[ing] these same words a different meaning,” the 

majority “invent[s] a statute rather than interpret[s] one.” Clark, 543 U.S. at 

378.

The majority is thus left on unsteady ground: amendment by implication, 

which “will not be presumed unless the legislature’s intent is ‘clear and 

manifest.’” In re Lively, 717 F.3d 406, 410 (5th Cir. 2013) (quoting Nat’l Ass’n 

of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 662 (2007)); see also, e.g., 

Epic Sys. Corp v. Lewis, 138 S. Ct. 1612, 1624 (2018) (“[I]n approaching a 

claimed conflict, we come armed with the ‘stron[g] presum[ption]’ that repeals 

by implication are ‘disfavored’ and that ‘Congress will specifically address’

preexisting law when it wishes to suspend its normal operations in a later 

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statute.” (second and third alterations in original) (quoting United States v. 

Fausto, 484 U.S. 439, 452-53 (1988))). This rule operates with equal force when 

a judicial construction previously illuminated the meaning of the purportedly 

amended statute. See TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 

S. Ct. 1514, 1520 (2017) (“When Congress intends to effect a change of [a 

statute’s earlier judicial interpretation], it ordinarily provides a relatively clear 

indication of its intent in the text of the amended provision.”); Midlantic Nat’l 

Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 494, 501 (1986) (“The normal rule 

of statutory construction is that if Congress intends for legislation to change 

the interpretation of a judicially created concept, it makes that intent 

specific.”); cf. Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001) 

(“Congress, we have held, does not alter the fundamental details of a 

regulatory scheme in vague terms or ancillary provisions—it does not, one 

might say, hide elephants in mouseholes.”). Congress’s silence on the matter is 

thus conclusive. 

Yet even if one probes further, it boggles the mind to suggest that 

Congress intended to turn a nonmandatory provision into a mandatory 

provision by doing away with the only means of incentivizing compliance with 

that provision. Congress quite plainly intended to relieve individuals of the 

burden the coverage requirement put on them; it did not intend to increase that 

burden. And if it did, it certainly did not make that intent “clear and manifest.” 

Lively, 717 F.3d at 410. Moreover, the considerations that led the NFIB Court 

to conclude that Congress did not intend the coverage requirement to impose 

a legal command to purchase health insurance are even more compelling in the 

absence of the shared-responsibility payment. Whereas before the only 

“negative legal consequence[] to not buying health insurance” was the payment 

of a tax, NFIB, 567 U.S. at 567-68, now there are no consequences at all. And 

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as the Congressional Budget Office (“CBO”) has predicted, without the sharedresponsibility payment, most applicable individuals will not maintain health 

insurance solely for the purpose of obeying the coverage requirement. See 

Cong. Budget Office, Repealing the Individual Health Insurance Mandate: An 

Updated Estimate at 1 (2017). “That Congress apparently regards such 

extensive failure to comply with the [coverage requirement] as tolerable 

suggests that Congress did not think it was creating [millions of] outlaws.” 

NFIB, 567 U.S. at 568.

Ergo, when Congress zeroed-out the shared-responsibility payment 

without amending the coverage requirement, it did not do away with the lawful 

choice it previously offered applicable individuals; it simply changed the 

parameters of that choice. Under the old scheme, applicable individuals could 

lawfully choose between maintaining health insurance and paying a tax. 

Under the new scheme, applicable individuals can lawfully choose between 

maintaining health insurance and doing nothing. In other words, the coverage 

requirement is a dead letter—it functions as an expression of national policy 

or words of encouragement, at most. Accordingly, although I would not reach 

the merits, I would reverse if I did.

IV.

I agree with much of what the majority has to say about the district 

court’s severability ruling. But I fail to understand the logic behind remanding 

this case for a do-over. Severability is a question of law that this court can 

review de novo. And the answer here is quite simple—indeed, a severability 

analysis will rarely be easier. After all, “[o]ne determines what Congress would 

have done by examining what it did,” and Congress declawed the coverage 

requirement without repealing any other part of the ACA. Legal Servs. Corp v. 

Velazquez, 531 U.S. 533, 560 (2001) (Scalia, J., dissenting); see also Ayotte v. 

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Planned Parenthood of N. New Eng., 546 U.S. 320, 330 (2006) (“[T]he 

touchstone for [severability analysis] is legislative intent.”). Consequently, 

little guesswork is needed to determine that Congress believed the ACA could 

stand in its entirety without the unenforceable coverage requirement.

The majority suggests that remand is necessary because the district 

court “has many tools at its disposal” and is thus “best positioned to undertake” 

the severability inquiry. Maj. Op. at 60. It is true that the district court is better 

able to assess factual issues than appellate judges, because it can hold 

evidentiary hearings, but I cannot see how that could be relevant, since 

severability is a question of law that we review de novo. Further, it is not clear 

what sort of evidence the district court could receive that would be useful when 

deciding severability questions except perhaps legislative history, a source 

which the majority derides. See Maj. Op. at 56 n.45 (“[W]e caution against 

relying on individual statements by legislators to determine the meaning of 

the law.”). When it comes to analyzing the statute’s text and historical context, 

see id., we are just as competent as the district court. There is thus no reason 

to prolong the uncertainty this litigation has caused to the future of this 

indubitably significant statute.12

A.

Before I address the more specific problems with the district court’s

inseverability ruling, some background on the ACA is in order. Congress 

 

12 The majority also suggests that remand is necessary so that the district court can 

consider remedial issues, raised by the United States for the first time on appeal, regarding 

the appropriate scope of relief. But such issues are largely moot if, as I believe, the coverage 

requirement is completely severable from the rest of the ACA. For example, I do not perceive 

a meaningful difference between a nationwide injunction prohibiting enforcement of the 

already-unenforceable coverage requirement versus an injunction against enforcement that 

is limited to the plaintiff states. In any case, this court could—and, in my view, should—

resolve the severability issue even if remanding remedial issues is appropriate.

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passed the ACA in 2010 to address a growing crisis of Americans living without 

health insurance. Prior to the ACA, nearly 50 million Americans (about 15

percent of the population at the time) were uninsured. Florida ex rel. Att’y Gen. 

v. U.S. Dep’t of Health & Human Servs., 648 F.3d 1235, 1244 (11th Cir. 2011), 

rev’d on other grounds, NFIB, 567 U.S. 519. Although many large employers 

provided health insurance, coverage was often cost prohibitive for small 

businesses and consumers seeking insurance through the individual market 

(i.e., directly instead of through an employer). See U.S. Gov’t Accountability 

Office, GAO-12-166R, Health Care Coverage: Job Lock and the Potential 

Impact of the Patient Protection and Affordable Care Act 3-4 (2011). Moreover, 

insurance companies could—and regularly would—deny coverage to high-risk 

consumers, especially those with preexisting medical conditions. Id. at 4.

The pre-ACA status quo created numerous economic and social 

problems. Most obviously, America’s uninsured population could not afford 

spiraling healthcare costs, thus exacerbating health problems, leading to an 

estimated 45,000 premature deaths annually, Andrew P. Wilper et al., Health 

Insurance and Mortality in US Adults, 99 Am. J. Pub. Health 2289, 2292 

(2009), and causing “62 percent of all personal bankruptcies,” 42 U.S.C. 

§ 18091(2)(G). The uninsured crisis caused some subtler problems too. For one 

thing, hospitals would have to absorb the costs of treating uninsured patients 

and would inevitably pass those costs along to insurance companies, which 

would then pass them along to consumers. See § 18091(2)(F) (“The cost of 

providing uncompensated care to the uninsured was $43,000,000,000 in 2008. 

To pay for this cost, health care providers pass on the cost to private insurers, 

which pass on the cost to families.”). See generally Amicus Br. of HCA 

Healthcare, Inc. at 9-13. And dependency on employer-based healthcare 

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decreased labor mobility, discouraged entrepreneurship, and kept potential 

caregivers away from the home. See GAO-12-166R, supra, at 5-6.

In enacting the ACA, Congress sought to address these and other 

problems with the national healthcare system by drastically reducing the 

number of uninsured and underinsured Americans. To achieve this goal, the 

ACA undertook a series of reforms, most notably to the individual insurance 

market. See generally Patient Protection and Affordable Care Act, Pub. L. No. 

111-148, tit. I, 124 Stat. 119 (2010). Among the ACA’s most important (and 

visible) reforms are two related provisions: guaranteed issue and community 

rate. See 42 U.S.C. §§ 300gg, 300gg-1. The guaranteed-issue provision requires 

health-insurance providers to accept every individual who applies for coverage, 

thus preventing insurers from denying coverage based on a consumer’s 

preexisting medical condition. See § 300gg-1(a). The community-rate provision 

prevents insurers from charging a higher rate because of a policyholder’s 

medical condition. See § 300gg(a).

Left without some counterbalance, the guaranteed-issue and 

community-rate provisions threatened to overload insurers’ risk pools with 

high-risk policyholders. Beyond allowing more high-risk consumers to 

purchase health insurance (as intended), these provisions disincentivized 

healthy (i.e., low risk) consumers from purchasing health insurance because it 

allowed them to wait until they developed costly health problems to purchase 

insurance.13 This would have caused premiums to skyrocket, exacerbating 

many of the problems Congress sought to solve. See generally Amicus Br. of 

Blue Cross Blue Shield Ass’n at 3-4. Thus, the ACA included several provisions 

to incentivize low-risk consumers to purchase health insurance. It offered tax 

 

13 This is known as the adverse-selection problem.

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credits to offset much of the cost of health insurance for middle-income 

consumers. See 26 U.S.C. § 36B(b). It created healthcare exchanges to facilitate 

competition among health plans and to lower transaction costs. See 42 U.S.C. 

§§ 18031, 18041. It limited new enrollments to an open-enrollment period set 

by the Secretary of Health and Human Services, which mitigates the adverseselection problem by preventing consumers from purchasing health insurance 

only when they need it. See § 18031(c)(6). And it included the coverage 

requirement at issue in this lawsuit. See § 5000A(a). 

Although the coverage requirement has been among the ACA’s bestknown provisions, the ACA’s reforms to the private insurance market extend 

well beyond it. As just mentioned, Congress created other mechanisms to 

achieve the same goal as the coverage requirement: incentivize low-risk 

consumers to purchase health insurance. The ACA also included other 

provisions expanding access to the private insurance market, including a 

requirement that employers with 50 or more employees offer health insurance, 

see 26 U.S.C. § 4980H, and a requirement that health-insurance providers 

allow young adults to remain on their parents’ insurance until they turn 26, 

see 42 U.S.C. § 300gg-14. And it included provisions designed to make healthinsurance policies more attractive, such as those directly regulating premiums, 

see, e.g., id. § 300gg-18(b), limiting benefits caps, see id. § 300gg-11, and 

prescribing certain minimum-coverage requirements for health plans, see, e.g., 

id. § 300gg-13. Moreover, the ACA contains countless other provisions that are 

unrelated to the private insurance market—and many that are only 

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tangentially related to health insurance at all.14 The following are only some 

of many possible examples:

• Section 3006, which directs the Secretary of Health and Human 

Services to “develop a plan to implement a value-based 

purchasing program for payments under the Medicare program

. . . for skilled nursing facilities.”

• Section 4205, which requires chain restaurants to 

conspicuously display “the number of calories contained in . . . 

standard menu item[s].”

• Section 5204, which creates a student-loan repayment 

assistance program “to eliminate critical public health 

workforce shortages in Federal, State, local and tribal public 

health agencies.” 

• Section 6402, which, among other things, strengthens criminal 

laws prohibiting healthcare fraud. 

• Title III of Part X, which reauthorizes and amends the Indian 

Health Care Improvement Act, a decades-old statute creating 

and maintaining the infrastructure for tribal healthcare 

services. 

Given the breadth of the ACA and the importance of the problems that 

Congress set out to address, it is simply unfathomable to me that Congress 

hinged the future of the entire statute on the viability of a single, deliberately

unenforceable provision.15

 

14 The ACA contains ten titles. Only the first title focuses on the private insurance 

industry. The other titles address wide-ranging topics from the “prevention of chronic 

disease,” ACA tit. IV, to the “health care work force,” id. tit. V. 

15 I do not mean to suggest that, as a policy matter, Congress chose the best (or even 

worthwhile) solutions to these problems. Such matters are beyond my job description, so I 

express no opinion on them. But the district court should have thought more critically about 

whether Congress likely intended to leave its chosen solution to a serious problem so 

vulnerable to judicial invalidation.

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B.

In Planned Parenthood of Northern New England, the Court announced 

the three principles that must guide our severability analysis. “First, we try 

not to nullify more of a legislature’s work than is necessary, for we know that 

‘[a] ruling of unconstitutionality frustrates the intent of the elected 

representatives of the people.’” Planned Parenthood of N. New Eng., 546 U.S. 

at 329 (alteration in original) (quoting Regan v. Time, Inc., 468 U.S. 641, 652

(1984) (plurality opinion)). “Second, mindful that our constitutional mandate

and institutional competence are limited, we restrain ourselves from 

‘rewrit[ing] [a] law to conform it to constitutional requirements’ even as we 

strive to salvage it.” Id. (first alteration in original) (quoting Am. Booksellers, 

484 U.S. at 397). “Third, the touchstone for any decision about remedy is 

legislative intent, for a court cannot ‘use its remedial powers to circumvent the 

intent of the legislature.’” Id. at 330 (quoting Califano v. Westcott, 443 U.S. 76,

94 (1979) (Powell, J., concurring in part and dissenting in part)).

In accordance with these principles, the Court’s cases suggest a two-part 

inquiry. First, we must ask “whether the law remains ‘fully operative’ without 

the invalid provisions.” Murphy v. NCAA, 138 S. Ct. 1461, 1482 (2018); see also 

United States v. Booker, 543 U.S. 220, 258-59 (2005); Alaska Airlines, Inc. v. 

Brock, 480 U.S. 678, 684 (1987). If so, the remaining provisions are “presumed 

severable” from the invalid provision. Chadha, 462 U.S. at 934 (quoting 

Champlin Ref. Co. v. Corp. Comm’n, 286 U.S. 210, 234 (1932)). This 

presumption is rebutted only if “the statute’s text or historical context makes

it ‘evident’ that Congress, faced with the limitations imposed by the 

Constitution, would have preferred” no statute over the statute with only the 

permissible provisions. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 

561 U.S. 477, 509 (2010). And as should be clear by now, “the ‘normal rule’ is 

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‘that partial, rather than facial, invalidation is the required course.’” Id. at 508 

(quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985)).

1.

The majority has identified the most glaring flaw in the district court’s 

severability analysis: the district court “gives relatively little attention to the 

intent of the 2017 Congress, which appears in the analysis only as an 

afterthought.” When one takes this fact into account, there can be little doubt 

as to Congress’s intent.

We have unusual insight into Congress’s thinking because Congress was 

given a chance to weigh in on the ACA’s future without an effective coverage 

requirement and it decided the ACA should remain in place. By zeroing out the 

shared-responsibility payment, the 2017 Congress left the coverage 

requirement unenforceable. If Congress viewed the coverage requirement as 

so essential to the rest of the ACA that it intended the entire statute to rise 

and fall with the coverage requirement, it is inconceivable that Congress would 

have declawed the coverage requirement as it did. And make no mistake: 

Congress declawed the coverage requirement. As the CBO found only a month 

before Congress passed the TCJA, “[i]f the [coverage requirement] penalty was 

eliminated but the [coverage requirement] itself was not repealed, the results 

would be very similar to” if the coverage requirement itself were repealed. 2017 

CBO Report, supra, at 1. Regardless of lofty civic notions about people who 

follow the law for the sake of following the law, the objective evidence before 

Congress was that “only a small number of people” would obey the coverage 

requirement without the shared-responsibility payment. Id.; cf. Dep’t of 

Commerce, 139 S. Ct. at 2565-66 (concluding people will “predictabl[y]” “violate 

their legal duty” when incentivized to do so). Congress accordingly knew that 

repealing the shared-responsibility payment would have the same essential 

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effect on the ACA’s statutory scheme as would repealing the coverage 

requirement.

Furthermore, as various amici highlight, judicial repeal of the ACA 

would have potentially devastating effects on the national healthcare system 

and the economy at large. See, e.g., Amicus Br. of Am.’s Health Ins. Plans 

(discussing impact on health-insurance industry); Amicus Br. of 35 Counties, 

Cities, and Towns (discussing impact on municipalities); Amicus Br. of 

Bipartisan Econ. Scholars (discussing impact on economy); Amicus Br. of Am. 

Hosp. Ass’n et al. (discussing impact on hospitals). Regardless of whether the 

ACA is good or bad policy, it is undoubtedly significant policy. It is unlikely 

that Congress would want a statute on which millions of people rely for their 

healthcare and livelihoods to disappear overnight with the wave of a judicial 

wand. If Congress wanted to repeal the ACA through the deliberative 

legislative process, it could have done so. But with the stakes so high, it is 

difficult to imagine that this is a matter Congress intended to turn over to the 

judiciary.

2.

A second flaw in the district court’s analysis is the great weight it places

on the fact that Congress in 2017 did not repeal its statutory findings 

emphasizing the coverage requirement’s importance to the guaranteed-issue 

and community-rate provisions. See 42 U.S.C. § 18091. The district court 

overread the significance of § 18091. Congress enacted the findings in § 18091 

to demonstrate the coverage requirement’s role in regulating interstate 

commerce. When it invokes its commerce power, Congress routinely makes 

such findings to facilitate judicial review. See United States v. Morrison, 529 

U.S. 598, 612 (2000) (“While ‘Congress normally is not required to make formal 

findings as to the substantial burdens that an activity has on interstate 

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commerce,’ the existence of such findings may ‘enable us to evaluate the 

legislative judgment that the activity in question substantially affect[s] 

interstate commerce, even though no such substantial effect [is] visible to the 

naked eye.’” (alterations in original) (citation omitted) (quoting United States 

v. Lopez, 514 U.S. 549, 562-63 (1995))). Indeed, § 18091(2), the subsection the 

district court focused its attention on, is entitled “Effects on the national 

economy and interstate commerce.”

Section 18091 is not an inseverability clause, and nothing in its text 

suggests that Congress intended to make the coverage requirement

inseverable from the remainder of the ACA. If Congress intended to draft an 

inseverability clause, it knew how to do so. See Office of Legislative Counsel, 

U.S. Senate, Senate Legislative Drafting Manual § 131(b) (1997) (explaining 

purpose of inseverability clause). Compare id. § 131(c) (providing as example 

of proper form for inseverability clause: “EFFECT OF INVALIDITY ON 

OTHER PROVISIONS OF ACT.—If section 501, 502, or 503 of the Federal 

Election Campaign Act of 1971 (as added by this section) or any part of those 

sections is held to be invalid, all provisions of and amendments made by this 

Act shall be invalid”), with § 18091(2)(H) (“The requirement is an essential 

part of this larger regulation of economic activity, and the absence of the 

requirement would undercut Federal regulation of the health insurance 

market.”). In fact, both the House and the Senate legislative drafting guides 

suggest that Congress should include an inseverability clause if it wants to 

make a statute inseverable because “[t]he Supreme Court has made it quite 

clear that invalid portions of statutes are to be severed ‘unless it is evident that 

the Legislature would not have enacted those provisions which are within its 

powers, independently of that which is not.’” Office of Legislative Counsel, U.S. 

House of Representatives, House Legislative Counsel’s Manual on Drafting 

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Style § 328 (1995) (quoting Chadha, 462 U.S. at 931); accord Senate Legislative 

Drafting Manual, supra, at § 131(a). The absence of a genuine inseverability 

clause should be all but conclusive in assessing the legislature’s intent.

Moreover, the argument that § 18091 is meant to signal Congress’s 

intent that the coverage requirement be inseverable proves far too much. 

Section 18091 discusses the coverage requirement’s importance to the entire 

federal healthcare regulatory scheme, including—along with the ACA—the 

Public Health Service Act (“PHSA”) and the Employee Retirement Income 

Security Act (“ERISA”). See § 18091(2)(H) (“Under the Employee Retirement 

Income Security Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health Service 

Act (42 U.S.C. 201 et seq.), and this Act, the Federal Government has a 

significant role in regulating health insurance. The [coverage] requirement is 

an essential part of this larger regulation of economic activity, and the absence 

of the requirement would undercut Federal regulation of the health insurance 

market.” (emphasis added)). It is not suggested that Congress intended a court 

to strike down the PHSA and ERISA if it found the coverage requirement 

unconstitutional. This would be especially implausible given the intensity of 

the debate over the coverage requirement’s constitutionality from the get-go.

See NFIB, 567 U.S. at 540 (“On the day the President signed the [ACA] into 

law, Florida and 12 other States filed a complaint in the Federal District Court 

for the Northern District of Florida.”). Yet in signaling that the coverage 

requirement is “an essential part of this larger regulation,” Congress did not 

distinguish between the ACA and these prior statutes. Thus, § 18091 cannot 

reasonably be read to bear on the coverage requirement’s severability.

3.

Another flaw in the district court’s analysis is its suggestion that the 

Supreme Court concluded in NFIB and King v. Burwell, 135 S. Ct. 2480 (2015), 

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that the coverage requirement is inseverable from the ACA’s guaranteed-issue 

and community-rate provisions. The district court misconstrued these 

opinions. And even if the district court read them correctly, these opinions 

address the coverage requirement as enforced by the shared-responsibility 

payment. They give little valuable insight into the coverage requirement’s role 

in the post-TCJA ACA.

In NFIB, only the dissenters addressed the coverage requirement’s 

severability. The district court did not suggest it is bound by a Supreme Court 

dissent, and of course it is not. The district court instead took language from 

the other five Justices out of context to conclude that each of them viewed the 

coverage requirement as inseverable. But none of the language the district 

court cited addresses severability. See NFIB, 567 U.S. at 547-48 (opinion of 

Roberts, C.J.) (discussing Government’s argument that coverage requirement 

plays a role in regulating interstate commerce); id. at 597 (Ginsburg, J., 

dissenting in part) (same). Although the Justices’ reasoning certainly suggests 

that they saw the coverage requirement as an important part of the statutory 

scheme as it existed in 2012, this does not mean the Justices found it “evident” 

that Congress would have preferred the entire statute to fall without the 

coverage requirement. Alaska Airlines, 480 U.S. at 684. 

King likewise contains some helpful commentary about the ACA’s 

original statutory scheme, but it does not discuss severability or otherwise 

control the severability analysis. The Court ruled in King that the ACA’s tax 

credits were available to every eligible consumer regardless of whether the 

state in which a consumer lived established its own exchange or relied on the 

federally operated exchange. 135 S. Ct. at 2496. The coverage requirement

came up because many more individuals would have been exempt from the 

shared-responsibility payment if tax credits were not available to them. Id. at 

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2493-95; see also § 5000A(e)(1)(A) (“No penalty shall be imposed . . . with 

respect to . . . [a]ny applicable individual for any month if the applicable 

individual’s required contribution (determined on an annual basis) for 

coverage for the month exceeds 8 percent of such individual’s household income

. . . .”).16 Noting the importance of the tax credits and coverage requirement (as 

enforced by the shared-responsibility payment) to the statutory structure, the 

Court concluded as a matter of statutory interpretation that Congress did not 

intend a scheme in which neither tax credits nor the coverage requirement

were operating to bring low-risk consumers into the insurance pools. See King,

135 S. Ct. at 2492-94 (“The combination of no tax credits and an ineffective 

coverage requirement could well push a State’s individual insurance market 

into a death spiral. . . . It is implausible that Congress meant the [ACA] to 

operate in this manner.”). 

The district court framed King as saying that Congress intrinsically tied 

the community-rate and guaranteed-issue provisions to the coverage 

requirement, meaning that those provisions must be inseverable from the 

coverage requirement. But the district court ignored a crucial aspect of the 

King Court’s analysis: it explicitly discussed the coverage requirement as 

enforced by the shared-responsibility payment. See id. at 2493 (referring to the 

coverage requirement as “a requirement that individuals maintain health 

insurance coverage or make a payment to the IRS” (emphasis added)). Indeed, 

as the Court identified it, the crux of the problem with denying consumers tax 

credits in federal-exchange states was that doing so would make a large 

 

16 Lest there be any confusion, the exemption at issue in King exempted individuals 

otherwise subject to the coverage requirement from the shared-responsibility payment; it did 

not exempt them from the coverage requirement itself. Exemptions from the sharedresponsibility payment are listed in § 5000A(e)(1), whereas exemptions from the coverage 

requirement itself are listed in § 5000A(d).

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number of individuals unable to afford insurance, thus exempting them from 

the shared-responsibility payment. See id. These widespread exemptions 

would, in turn, make the coverage requirement “ineffective.” Id. King thus 

speaks far more to the shared-responsibility payment’s role in the ACA’s preTCJA statutory scheme than it does the coverage requirement’s role in the 

statutory scheme.

Even to the extent the Court in NFIB or King meant to opine on the 

coverage requirement’s severability, these cases were both decided before the 

TCJA. They thus give no insight into how the coverage requirement fits into 

the post-TCJA scheme. Whatever reservations the Court previously harbored 

about severing the coverage requirement, Congress plainly did not share those 

concerns when it zeroed out the shared-responsibility payment. Congress 

either concluded that healthcare markets under the ACA had reached a point 

of stability at which they no longer needed an effective coverage requirement,17

or it chose to accept the negative side effects of effectively repealing the 

coverage requirement as a cost of relieving the burden it placed on applicable 

individuals. Either way, the legislative considerations have necessarily 

shifted.

In sum, there was no reason for the district court to conclude that any 

provision in the ACA was inseverable from the coverage requirement. The 

majority does not necessarily disagree. I thus do not understand its decision to 

remand when, even on the majority’s analysis of the case, it could instead 

 

17 See CBO Report, supra, at 1 (concluding that “[n]ongroup insurance markets would 

continue to be stable in almost all areas of the country throughout the coming decade” if the 

coverage requirement were repealed); Amicus Br. of Blue Cross Blue Shield Ass’n at 24-27 

(explaining that tax credits and other ACA provisions are driving enough consumers into 

insurance markets to make the coverage requirement unnecessary).

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reverse and render a judgment declaring only the coverage requirement

unconstitutional.

V.

Limits on judicial power demand special respect in a case like this. For 

one thing, careless judicial interference has the potential to be especially 

pernicious when it involves a complex statute like the ACA, which carries such 

significant implications for the welfare of the economy and the American 

populace at large. For another, the legitimacy of the judicial branch as a 

countermajoritarian institution in an otherwise democratic system depends on 

its ability to operate with restraint—and especially so in a high-profile case 

such as the one at bar. The district court’s opinion is textbook judicial 

overreach. The majority perpetuates that overreach and, in remanding, 

ensures that no end for this litigation is in sight.

I respectfully dissent.

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