Normally, at this time of the year, I am posting a look at the big cases to be decided in the last two to three weeks.  I got a little delayed this year by the redistricting posts, and  The Supreme Court beat me to the punch by releasing two of the biggest opinions of the term  — Texas vs. California and Fulton vs. Philadelphia.  

Texas is the latest, and hopefully last, round of the Republicans attempts to use the courts to accomplish what they can’t do in Congress — repeal the Affordable Care Act.  The latest theory was that, by repealing the tax penalty that is part of the individual mandate, Congress effectively repealed the entire Affordable Care Act.

Understanding the issues in the case requires a brief detour into the back history of the case and some basic things that most lawyers learn in law school (but which the dissent kindly forgets).  Before the New Deal, there were a lot of doctrines that a conservative Supreme Court used to block progressive legislation.  And, as will be discussed in the post on the remaining cases, it is important to understand that many in the Federalist Society think that the “Old Court” got it right and oppose the changes that the Supreme Court made in the 1940s to those doctrines.  One of those changes was a much broader definition of the power of the federal government to regulate economic matters under the Commerce Clause.  And when the Affordable Care Act was enacted, most thought that the individual mandate was authorized by the Commerce Clause.  And when the Republicans first challenged the individual mandate, the defense of the mandate relied, in part, on its significance in the overall scheme.  Unfortunately for the future of the Affordable Care Act, when the Supreme Court first analyzed the Affordable Care Act, the Chief Justice sided with the conservatives on the Commerce Clause issue but was willing to find that it was authorized as a tax.  When Republicans managed to repeal the tax in 2017, conservatives saw an opportunity to use that repeal to take a second run at the individual mandate and the Affordable Care Act.

Now, here is where we get to basic legal principles.  One basic legal principle recognizes the distinction between mandatory laws (i.e. those that have to be followed) and directory laws (laws that are merely suggestions),  One key question that courts look at to see if a law is mandatory is whether there is a penalty for noncompliance.  Another basic legal principle is that courts will only consider a case if the plaintiff is harmed by the defendant’s actions.

A final legal principle is that legislatures are free to change its mind.  In this case, while supporters of hte individual mandate believe that the rest of the Affordable Care Act may ultimately fail due to the repeal of the individual mandate, Congress was free to reach a different conclusion and repeal the individual mandate.  As such, the fact that the individual mandate might no longer be valid should not result in the rest of the Affordable Care Act being invalid.

When the Republicans repealed the tax penalty for the individual mandate, they filed this current case with some individuals and some states as plaintiffs.  The District Court ignored these basic principles to find for the plaintiffs and strike down the entire Affordable Care Act.  The Fifth Circuit also ignored some of these principles to find that the individual mandate was invalid. but directed the District Court to reconsider its finding that the rest of the Affordable Care Act failed with individual mandate.  The Supreme Court opted to take up the case to resolve this issue.

The majority noted that the effect of the removal of the tax penalty was that the individual mandate was no longer a mandate.  Instead, it was a mere suggestion.  Because it was a mere suggestion, the individual mandate no longer compelled the individual plaintiffs to purchase health insurance.  As such, there was no harm to the individual plaintiffs.

Similarly, most of the harms to the states flowed from other provisions of the Affordable Care Act.  While these harms allegedly came from people opting into expanded Medicaid coverage, the Supreme Court found that the states failed to demonstrate that the mere suggestion that individuals get health insurance (rather than the actual benefits themselves) caused individuals to apply for Medicaid.  Because the individual mandate did not harm the states, the states did not have the ability to challenge the individual mandate either.  (The majority glosses over any argument related that the states had the ability to challenge the rest of the Affordable Care Act if the individual mandate was invalid.  That argument could have been defeated by expressly addressing the fact that Congress, by only repealing the tax penalty, implicitly decided that the individual mandate was not needed.)

The two dissenters focus on the failure to address “severability” — whether the rest of the Act survives the repeal of the individual mandate — as the reason why the states are harmed by the individual mandate.  They also find that because the original text of the Affordable Care Act (which was not altered when the tax provision was repealed) emphasize the importance of the original mandate than the repeal of the tax provision should be viewed as constructively repealing the rest of the Affordable Care Act.  For the reasons noted above, this argument is very, very weak and contrary to basic legal principles.  But the majority opinion (probably to keep a majority) does not expressly address these arguments.  Justice Thomas in a concurring opinion echoes some of the dissent attacks on the individual mandate but agrees that none of the plaintiffs are harmed by the mandate.

The bottom line of the decision is that this line of challenge to the Affordable Care Act as a whole will not succeed.  While the current Supreme Court would probably strike down an attempt to enforce the individual mandate with a criminal penalty, the amount of the tax penalty for noncompliance with the individual mandate (whether $0 or $1,000) does not matter.  Any challenge to the other provisions of the Affordable Care Act will need to be based on those specific provisions.  I would not be surprised if the Republicans keep up their attacks on the rest of the Affordable Care Act, but such attacks are not likely to succeed or be politically popular.  The individual mandate was the most unpopular part of the Affordable Care Act making it easy to attack.  The other provisions are politically popular.  As a result, continuing the fight against the Affordable Care Act will be very politically risky for Republicans.  And, trying to play to their base that buys the attacks on the Affordable Care Act will increase the likelihood of a Democratic majority in Congress that might enact something like a single payer plan that would be constitutional.

The other decision involves the Free Exercise Clause and civil rights legislation.  Philadelphia includes sexual orientation as one of the protected categories in its antidiscrimination policy.  Among its other responsibilities, Philadelphia is responsible for placing children who are removed from their parents in foster homes.  Philadelphia contracts part of the responsibility for finding foster homes to private agencies — some of which are affiliated with religious groups.  Philadelphia decided to require all of the agencies that it contracts with to comply with the city’s nondiscrimination policy, and some of the former contractors with religious affiliation sued to prevent the city from requiring such nondiscrimination based on their belief that such a policy was contrary to their religion.

An underlying issue in the case was dissatisfaction with the governing precedent on the Free Exercise Clause which was written in the 1980s by Justice Scalia.  That precedent established a more relaxed standard for policies that are neutral to all religions.  That case involved laws against the use of controlled substances which impacted certain religious groups that used peyote in rituals.  Since the law against controlled substances applies equally to everyone, Justice Scalia found no violation of the Free Exercise Clause.  Almost nobody liked that decision which led to multiple federal and state statutes to expand religious rights.  If a statute or policy is not neutral to all beliefs, then the government has to show that the statute is “narrowly tailored” to serve a “compelling interest” — a test that is hard to meet.

On its face, anti-discrimination legislation meets the Scalia test as it applies equally to everyone. It is irrelevant whether your desire to discriminate against gays, lesbians, and transsexual is based on some personal animus, a philosophical belief, or a misinterpretation of some religious text.  The opponents of the Scalia test saw this case as a perfect opportunity to do away the “neutral law” limits on the Free Exercise Clause and to give a preferential status to religious objections to law.

But the majority in this case managed to find a way to avoid the challenge to the Scalia test.  (Technically, the decision is 9-0 in that everyone agreed that Philadelphia lost, but a 6-3 majority rejects the challenge to the Scalia test.)  The majority by some creative reading of the policies and contracts (rejected by the three justices who want to replace the Scalia test) noted that the contract gave discretion to the city to authorize exemptions  from the rules.  Because exemptions could be given for unspecified reasons, the majority found that the policy in question was not neutral to religion.  In other words, in non-religious requests could be considered, the majority felt that Philadelphia also had to grant requests for exemptions based on religion or justify the failure to grant those requests.

There are two key parts of the decision.  First, because the majority finds that Philadelphia’ policy is not neutral, it apples the “compelling interest” test.  That test asks whether the policy is narrowly tailored to further a compelling interest.  In other words, the purpose behind the law has to be very important and the law has to be written in a way that achieves that interest with the least infringement on individual rights necessary to achieve that purpose.  Language in the majority opinion seems to indicate that preventing discrimination is a compelling interest.  (The majority ultimately finds that the language authorizing exemptions means that the policy is not narrowly tailored.  Implicitly, if Philadelphia repealed the exemption, the policy might survive.)

Second, it appears that a majority rejects, at least for now, the attempt to change the Scalia test.  The key part of this is actually a concurring opinion written by Justice Barrett and joined by Justice Kavanaugh and (partially) by Justice Breyer.  That opinion, while noting in the part not joined by Justice Breyer concerns about the Scalia test, finds that there is not a readily apparent test to replace the Scalia test.  This opinion indicates that the compelling interest test is not a satisfactory alternative when the law in question does not discriminate against religion and merely fails to give favorable treatment to religious beliefs.

In short, the current state of the Free Exercise Clause is that it gives religions and religious beliefs the equivalent of a “most favored nation” status.  If there are exemptions to general rules for non-religious reasons, those exemptions must also apply to religious reasons.  But, if there are no exemptions, there is no requirement in the Free Exercise Clause for an exemption for religious reasons (although for federal statutes, the Religious Freedom Restoration Act may require such an exemption).

While it is unclear what Justice Barrett and Justice Kavanaugh will do when the Supreme Court gets a case in which the state decision clearly is valid under the Scalia test, this decision gives hopes to the proponents of broad protections against discrimination based on sexual orientation.  Controversial changes often find religious groups on both sides of the issue.  In time, as the change becomes accepted, religious authorities that opposed the change tend to revise their reading of scripture.  Thus, today, you find very few people who would argue that slavery is authorized by the Bible or that racial discrimination is authorized by the Bible.  But, at the time of the Thirteenth Amendment and the Civil Rights Act, there was a vigorous debate among theologians on these issues.  The majority opinion seems to recognize that the mere fact that a person asserts a religious objection to a new policy does not, by itself, mean that the government already has to grant an exemption.

There are several cases left that could give big victories to conservatives.  But, as we have seen all term, the conservative block is not completely united.  The individual justices are “winnable” on particular issues.  While each justice have an issue in which they are willing to go to the mat for ultra-conservative principles,  they are, for the most part, unwilling to go too far to accomplish those goals.  Thus, the wins are likely to be very narrowly written (as in the Philadelphia case) and a return to the good old days before the New Deal is unlikely.