A Fifth Circuit motions panel granted Texas’ request to stay a preliminary injunction against that state’s law about content moderation by major social media platforms; commentators suggest that a rapid Supreme Court appeal will now occur. (The asterisk below indicates that the ruling was not unanimous. No opinion has issued yet; argument was just conducted on May 9th.)
The saying “that’s all she wrote” was particularly apt for the Fifth Circuit yesterday, as the hard-fought litigation brought by abortion providers to challenge Texas’s SB8 took its final turn back to the district court:
Whole Woman’s Health v. Jackson, No. 21-50792 (April 26, 2022).
Reversing the Fifth Circuit’s opinion in City of Austin v. Reagan Nat’l Advertising, 972 F.3d 696 (5th Cir. 2020), the Supreme Court held that Austin’s use of an “on-/off-premises distinction” did not create a content restriction. The majority opinion reasoned:
A sign’s substantive message itself is irrelevant to the application of the provisions; there are no content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, including those sponsored by religious and nonprofit organizations. Rather, the City’s provisions distinguish based on location: A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not. The message on the sign matters only to the extent that it informs the sign’s relative location. The on-/off-premises distinction is therefore similar to ordinary time, place, or manner restrictions.
No. 20-1029 (U.S. April 21, 2022) (applying Reed v. Gilbert, 576 U.S. 155 (2015)).
“Plaintiffs who succeed in winning a money judgment against a state governmental entity in state court in Louisiana often find themselves in a frustrating situation. Though they have obtained a favorable judgment, they lack the means to enforce it. The Louisiana Constitution bars the seizure of public funds or property to satisfy a judgment against the state or its political subdivisions. Instead, the Legislature or the political subdivision must make a specific appropriation in order to satisfy the judgment. And since Louisiana courts lack the power to force another branch of government to make an appropriation, the prevailing plaintiff has no judicial mechanism to compel the defendant to pay. …
Finding themselves in this position, the Plaintiffs in this case, like others before them, have turned to the federal courts to force payment on their state court judgment. They claim that the Defendants’ failure to timely satisfy a state court judgment violates the Takings Clause of the Fifth
Amendment. The district court granted the Defendants’ motion to dismiss, applying long-standing precedent that there is no property right to timely payment on a judgment.”
The Fifth Circuit affirmed the dismissal. Ariyan, Inc v. Sewarage & Water Board of New Orleans, No. 21-30335 (March 21, 2022) (citations omitted); cf. generally Preston Hollow Capital v. Cottonwood Devel. Corp., 23 F.4th 550 (5th Cir. 2022) (also affirming dismissal of takings claim).
Trafigura Trading v. United States featured a dispute about one of the many prohibitions in Article I Section 9 of the Constitution; specifically, clause 5, which says: “No Tax or Duty shall be laid on Articles exported from any State.” An oil company argued that a federally-imposed charge on oil exports, collected to finance the Oil Spill Liability Trust Fund, violated this provision.
The district court ruled for the oil company and a Fifth Circuit panel affirmed. One judge, drawing heavily from lyrics made famous by “Hamilton,” described the surprisingly colorful history of this provision, and voted to affirm. Another judge voted to affirm but declined to join that opinion. And the third judge dissented. As a result, the other opinion had no quorum supporting it and thus lacked precedential effect. No. 21-20127 (March 24, 2022).
On that broader subject, cf. Sambrano v. United Airlines, No. 21-11159 (Feb. 17, 2022) (Smith, J., dissenting) (sympathizing with “the hapless trial judge or conscientious advocate” that must reason from nonprecedential rulings); see generally Alexander Hamilton, Federalist No. 78 (May 28, 1788) (“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.”).
The long shadow of Edward Young (right), who served as Minnesota’s well-mustachioed Attorney General in the early 20th century, fell upon two companion cases about Texas election laws, in which a panel majority found that the Texas Secretary of State was not a proper defendant under Ex Parte Young. A dissent (from both panel opinions) saw matters otherwise:
I write to remind failing memories of the signal role of Ex parte Young in directly policing the path of cases and controversies to the Supreme Court from our state and federal courts and warn against its further diminution. … ‘Ex parte Young poses no threat to the Eleventh Amendment or to the fundamental tenets of federalism. To the contrary, it is a powerful implementation of federalism necessary to the Supremacy Clause, a stellar companion to Marbury and Martin v. Hunter’s Lessee.’
…
The majority continues this Court’s effort to shrink the role of Ex parte Young, by overly narrow readings of the state officer’s duty to enforce Texas’s election laws. … [T]he Texas Secretary of State is the “chief election officer of the state” and is directly instructed by statute to “obtain and maintain uniformity in the application, operation, and
interpretation of this code and of the election laws outside this code.” Moreover, the Secretary is charged to “take appropriate action to protect the voting rights of the citizens of this state from abuse by the authorities administering the state’s electoral processes” and “to correct offending conduct.” Although recent decisions by this Court have split hairs regarding the level of enforcement authority required to satisfy Ex parte Young, the Secretary is charged to interpret both the Texas Election Code and the election laws outside the Code, including federal law, to gain uniformity, tasks it is clearly bound to do. The allegation in these cases is that the Secretary is failing in that duty. This charge should satisfy our Ex parte Young inquiry.
TARC v. Scott, No. 20-40643 (March 16, 2022); Richardson v. Flores, No. 20-50744 (March 16, 2022) (footnotes and citations omitted). (I was recently interviewed about the case by KDFW-TV in Dallas.)
While expediting consideration of the merits, a Fifth Circuit panel declined to stay a national injunction against a vaccination requirement for federal employees; a detailed dissent would have granted an interim stay of the injunction. Feds for Medical Freedom v. Biden, No. 20-30090 (Feb. 11, 2022). A thorough (albeit, highly partisan) article about the case recently appeared in Slate.
In a rough stretch for the administrative state, after the Fifth Circuit’s recent skeptical rejection of an FDA regulation of e-cigarettes, another panel stayed OSHA’s vaccine-mandate regulation. It based its decision on several administrative-law principles and summarized:
“[T]he Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.”
No. 21-60845 (Nov. 12, 2021) (footnotes omitted, emphasis in original).
“It should be obvious to any reasonable police officer that locking up a journalist for asking a question violates the First Amendment. Indeed, even Captain Lorenzo, the stubborn police chief in Die Hard 2, acknowledged: ‘Now personally, I’d like to lock every [expletive] reporter out of the airport. But then they’d just pull that “freedom of speech” [expletive] on us and the ACLU would be all over us.” Die Hard 2 (1990). Captain Lorenzo understood this. The officers in Laredo should have, too. Cf. Dickerson v. United States, 530 U.S. 428, 443 (2000) (‘Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.’). The complaint here alleges an obvious violation of the First Amendment. The district court erred in holding otherwise.”
Villarreal v. City of Laredo, No. 20-40359 (Nov. 1, 2021).
A frequent international traveler alleged that he had been placed on a TSA list that required additional, invasive searches of him when he flew. The Fifth Circuit affirmed the dismissal of the several Constitutional claims that he raised in a lawsuit against the leaders of the relevant federal agencies:
“In short, Ghedi has no right to hassle-free travel. In the Supreme Court’s view, international travel is a ‘freedom’ subject to ‘reasonable governmental regulation.’ And when it comes to reasonable governmental regulation, our sister circuits have held that Government-caused inconveniences during international travel do not deprive a traveler’s right to travel. In the Sixth Circuit’s view, ‘incidental or negligible’ delays of ‘ten minutes’ to ‘an entire day’ do not ‘implicate the right to travel.’ The Second and Tenth Circuits have held the same. Ghedi has therefore failed to plausibly allege that he has been deprived of his right to travel internationally by the extra security measures he has experienced.”
Ghedi v. Mayorkas, No. 20-10995 (Oct. 25, 2021) (footnotes omitted).
In a challenge to the constitutionality of the “eviction moratorium,” the federal government argued that the case had become moot because the specific order at issue had expired. The Fifth Circuit expressed skepticism:
“Appellees respond that the appeal is not moot because the parties still dispute whether the government has constitutional power under the Commerce Clause to invade individual property rights by limiting landlords’ use of state court eviction remedies. The government maintains it has such authority. And in the government’s view, espoused at oral argument, that constitutional power is in no way limited to combatting the ongoing pandemic; the government asserts it can wield that staggering constitutional authority for any reason. Appellees further contend the proposed dismissal is a pretext to avoid appellate review of the constitutional question.”
(emphasis added). The court concluded, however, that it did not need to address mootness because it was granting the government’s motion to dismiss “on terms . . . fixed by the court” under FRAP 42. Those terms included the “express condition” that ‘”our dismissal does not abrogate the district court’s judgment or opinion, both of which remain in full force according to the express concession of the government during oral argument and in briefing.” Terkel v. Centers for Disease Control, No. 21-40137 (Oct. 19, 2021) (One panelist joined the result only.)
The Fifth Circuit denied the stay application in the appeal of the DOJ’s lawsuit against SB8, stating:
While the referenced Fifth Circuit opinion primarily focused on Ex Parte Young (not relevant in a suit by the US, see West Virginia v. United States, 479 U.S. 305 (1987)), it made other observations about justiciability that this order suggests will now be central in the resolution of the merits. Professor Steve Vladeck further analyzes the relationship of the two cases in a recent Twitter thread.
The Fifth Circuit recently released its opinion on the emergency-stay motions of early September in the high-profile challenge to Texas’s “heartbeat law,” Whole Womens Health v. Jackson, No. 21-50792 (Sept. 10, 2021). In addition to identifying problems with the application of Ex parte Young, the Court observed: “We do not even take into account the many other justiciability defenses Defendants have raised beyond Young. Defendants have argued powerfully that, not only do they enjoy Eleventh Amendment immunity, but federal jurisdiction is also lacking under Article III. Related doctrines of standing, ripeness, and justiciability are also likely to prevail because these Plaintiffs have no present or imminent injury from the enactment of S.B 8.”
Applying Keller v. State Bar of California, 491 U.S. 1 (1990), the Fifth Circuit concluded that certain activities by the State Bar of Texas were not “germane” to the Bar’s accepted purpose, and thus held that their funding with bar dues violated the First Amendment.
In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights. There are multiple other constitutional options: The Bar can cease engaging in nongermane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s. But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities.
The Court acknowledged the “weakened foundations” of Keller after the union-dues case of Janus v. Am. Fed. of State, County, & Municipal Employees, 138 S. Ct. 2448 (2018), but concluded that it still framed the relevant issues in the context of a mandatory bar association. McDonald v. Longley, No. 20-50448 (July 2, 2021). The Texas Lawbook has written on the opinion. (The companion case of Boudreaux v. Louisiana State Bar Ass’n, No. 20-30086 (July 2, 2021), reversed a standing-based dismissal to a similar challenge to the activities of Louisiana’s state bar.)
Huawei Technologies USA v. FCC presents an exhaustive summary of modern-day administrative law, in the context of reviewing an FCC rule that excluded Huawei from federal funds as a security risk. As the Court summarized its several holdings:
Their most troubling challenge is that the rule illegally arrogates to the FCC the power to make judgments about national security that lie outside the agency’s authority and expertise. That claim gives us pause. The FCC deals with national communications, not foreign relations. It is not the Department of Defense, or the National Security Agency, or the President. If we were convinced that the FCC is here acting as “a sort of junior varsity [State Department],” Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting), we would set the rule aside.
But no such skullduggery is afoot. Assessing security risks to telecom networks falls in the FCC’s wheelhouse. And the agency’s judgments about national security receive robust input from other expert agencies and officials. We are therefore persuaded that, in crafting the rule, the agency reasonably acted within the broad authority Congress gave it to regulate communications.
No. 19-60896 (June 18, 2021).
The Supreme Court reversed a Fifth Circuit panel opinion about the constitutionality of the Affordable Care Act, finding that none of the plaintiffs had standing in light of (1) the repeal of coverage-related penalties and (2) the apparent mismatch between the ACA provisions complained of as unconstitutional, and those that caused the complained–of harms to the states. California v. Texas, No. 19-840 (U.S. Jun 17, 2021) (reversing Texas v. United States, 945 F. 3d 355 (5th Cir. 2019)).
Canfield v. Lumpkin presented an ineffective-assistance claim arising from voir dire. The record showed the following exchange with the juror in question, followed by general questions to the panel about the ability ot be fair, with no individual followup questioning of this juror:
The panel majority found no error sufficient to justify habeas relief, as well as a lack of sufficient prejudice. A dissent saw matters otherwise: “[T]he trial judge and counsel were acutely aware of the necessary care that must attend jury selection and the challenges of this case. Our question is whether they succeeded in protecting the jury room. Unlike the majority, I conclude that they did not. During voir dire, a prospective juror volunteered that she felt the defendant was guilty and would probably vote to convict him even if the State failed to prove his guilt beyond a reasonable doubt. Neither counsel nor the judge followed up with her. So, she served on the jury that first convicted Jerry Lee Canfield and, then, free to choose from a menu of sentences from 5 years to life imprisonment, sentenced him to 50 years in prison without the possibility of parole.” No. 18-10431 (May 18, 2021).
Roe v. Wade famously named Dallas County DA Henry Wade (right) as its defendant, because he was the official charged with enforcement of the criminal statute at issue. The Texas Legislature has passed a new abortion law — a “heartbeat bill” — that features a novel enforcement procedure involving private litigants. The statute disclaims any 
public enforcement, relying on a private right of action against abortion providers that features an extremely broad definition of standing. The Texas Tribune correctly notes that the Fifth Circuit’s en banc opinion in Okpalobi v. Foster, 244 F.3d 501 (5th Cir. 2001), declined to extend Ex Parte Young (left) to a Louisiana statute that created a somewhat-analogous private cause of action against abortion providers. Assuming that the Governor signs the new Texas law, Okpalobi will likely be cited frequently in federal-court challenges to it. (I recently did a an interview with Fox 4’s “Good Day” about this new law.)
The full Fifth Circuit declined to grant en banc review to State of Texas v. Rettig, 987 F.3d 518 (5th Cir. 2021), which involved constitutional challenges by certain states to two aspects of the Affordable Care Act. They contended that the “Certification Rule” violated the nondelegation doctrine, and that section 9010 of the ACA violated the Spending Clause and the Tenth Amendment’s doctrine of intergovernmental tax immunity. The panel found the laws constitutional, in an opinion by Judge Haynes that was joined by Judges Barksdale and Willett. “In the en banc poll, five judges voted in favor of rehearing (Judges Jones, Smith, Elrod, Ho, and Duncan), and eleven judges voted against rehearing (Chief Judge Owen, and Judges Stewart, Dennis, Southwick, Haynes, Graves, Higginson, Costa, Willett, Engelhardt, and Wilson),” with Judge Oldham not participating, and the five pro-rehearing judges joining a dissent.
Several years ago, mathematicians rejoiced at the mapping of the world’s most complex structure, the 248-dimension “Lie Group E8” (right). Not to be outdone, the en banc Fifth Circuit has issued Brackeen v. Haaland, a 325-page set of opinions about the constitutionality of the Indian Child Welfare Act–a work so complicated that a six-page per curiam introduction is needed to explain the Court’s divisions on the issues. No. 18-11479 (April 6, 2021). The splits, opinions, and holdings will be reviewed in future posts.
Louisiana bar owners contended that a state COVID restriction violated the Equal Protection Clause. The Fifth Circuit disagreed:
“Unlike AG-permitted bars whose primary purpose is to serve alcohol, AR-permitted businesses must serve more food than alcohol to meet their monthly revenue requirements. Even if the Bar Closure Order’s classifications are based solely on the premise that venues whose primary purpose and revenue are driven by alcohol sales rather than food sales are more likely to increase the spread of COVID-19, such a rationale, as described by Dr. Billioux and the Governor and credited by both district courts, is sufficiently ‘plausible’ and not ‘irrational.”’ … [T]he Bar Closure Order’s differential treatment of bars operating with AG permits is at least rationally related to reducing the spread of COVID-19 in higher-risk environments.”
Big Tyme Investments, LLC v. Edwards, No. 20-30526 (Jan. 13, 2021) (citations omitted). The panel majority and a concurrence disputed the exact import of archaic-sounding language from Jacobson v. Massachusetts, 197 U.S. 11 (1905), but did not find it to materially impact the outcome under traditional Equal Protection principles.
The Twelfth Amendment says: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” By statute, that is to occur this year on January 6. That statute also lays out a procedure for handling objections to votes. Judge Jeremy Kernodle of Tyler rejected a challenge to that process, as the process is in detailed in Section 15 of 1887’s Electoral Count Act, stating: “Plaintiff Louie Gohmert, the United States Representative for Texas’s First Congressional District, alleges at most an institutional injury to the House of Representatives. Under well settled Supreme Court authority, that is insufficient to support standing.” Gohmert v. Pence, No. 6:20-cv-660-JDK (E.D. Tex. Jan. 1, 2020).
A Fifth Circuit motions panel (Higginbotham, Smith, Oldham) dismissed an effort at immediate appeal:
In Williams v. Reeves, 953 F.3d 729 (5th Cir. 2020), “[t]he plaintiffs in this lawsuit are low-income African-American women whose children attend public schools in Mississippi. They filed suit against multiple state officials in 2017, alleging that the current version of the Mississippi Constitution violates the ‘school rights and privileges’ condition of the [1870] Mississippi Readmission Act.” A Fifth Circuit panel found that ” a portion of the relief plaintiffs seek is prohibited by the Eleventh Amendment,” but that “the lawsuit also partially seeks relief that satisfies the Ex parte Young exception to sovereign immunity.” The full court recently denied en banc review by an 8-9 vote; the votes are described below, and they are identical to the split in another recent vote. (Red and blue show the political party of the nominating President, and an * indicates former service as a trial judge.)
In striking down a regulation of casket-making by a Louisiana monastery, the Fifth Circuit assured: “Nor is the ghost of Lochner lurking about.” St. Joseph Abbey v. Castille, 712 F. 3d 215, 226-27 (5th Cir. 2013). Nevertheless, that fearsome shade surfaced in Hines v. Quillivan, an equal-protection challenge to Texas’s regulation of telemedicine by veterinarians, only to be banished by the panel majority: “It is not irrational for a state to change in stages its licensing laws to adapt to our new, technology-based economy. If the Texas legislature finds the recently enacted changes on telemedicine successful, it may decide to expand those changes to include veterinarians. It is reasonable to have a trial period rather than to make a hasty policy change. Though we could conceive no rational basis for the law challenged in St. Joseph Abbey, we can conceive many rational bases here.”
A dissent saw matters differently, crediting the plaintiff’s argument that “[i]t simply is not rational to allow telemedicine without a physical examination for babies but deny the same form of 
telemedicine for puppies on the ground that puppies cannot speak.” No. 19-40605 (revised Dec. 2, 2020).
By an 8-9 vote, the Fifth Circuit abstained from en banc review of McRaney v. North American Mission Board, 966 F.3d 346 (5th Cir. 2020), in which the panel found that the application of the ecclesiastical abstention doctrine was premature given the stage of the parties’ case. A breakdown of the votes is below (the third panel member, Judge Clement, has taken senior status and did not participate in the vote):
“Hard cases make bad law,” says the old adage; whether that holds true for Taylor v. Riojas, will remain to be seen. The Supreme Court reversed a qualified-immunity ruling in a case involving what it saw as “shockingly unsanitary” prison cells, finding that the “extreme circumstances” of the case eliminated any dispute about whether the relevant law was clearly-established. No. 19-1261 (U.S. Nov. 2, 2020) (reversing Taylor v. Stevens, 946 F.3d 211 (5th Cir. 2019).
The dry-sounding issue before the en banc court in Planned Parenthood v. Kauffman, No. 17-50282 (Nov. 23, 2020), was “whether 42 U.S.C. § 1396a(a)(23) gives Medicaid patients a right to challenge, under 42 U.S.C. § 1983, a State’s determination that a health care provider is not ‘qualified’ within the meaning of § 1396a(a)(23).” The practical consequence of that issue, however, is significant–who may sue about Texas’s termination of several Planned Parenthood facilities from that state’s Medicaid program.
The majority held that under a 1980 Supreme Court case and the structure of the statute, the patients did not have the right to sue. In so doing, the Fifth Circuit joined the Eighth Circuit and split with five others. A 7-judge concurrence (2 votes shy of a majority, given the configuration of the en banc court for this case) would have reached the merits and rejected them. The opinions are illustrated in the chart below:
The University of Texas’s rules about campus speech did not fare well in Speech First, Inc. v. Fenves, in which the Fifth Circuit found that a preliminary-injunction action could proceed. The Court found that the case was not moot and stated a strong claim on the merits: “Of course, not every utterance is worth protecting under the First Amendment. In our current national condition, however, in which ‘institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishment instead of considered reforms,’ courts must be especially vigilant against assaults on speech in the Constitution’s care. Otherwise, the people may not be free to generate, debate, and discuss both general and specific ideas, hopes, and experiences,’ to ‘transmit their resulting views and conclusions to their elected representatives,’ ‘to influence the public policy enacted by elected representatives,’ and thereby to realize the political and human common good.” No. 19-50529 (revised Oct. 30, 2020) (footnotes omitted).
In one of many recent election-law disputes, the panel majority in Richardson v. Hughs painstakingly reviewed, and rejected, the plaintiffs’ challenge to Texas’s practices about signature verification for mail-in ballots. The procedural posture was a motion to stay; a concurrence cauti
oned: “[T]he reality is that the ultimate legality of the present system cannot be settled by the federal courts at this juncture when voting is already underway, and any opinion on a motions panel is essentially written in sand with no precedential value ….” footnote omitted). No. 20-50774 (Oct. 20, 2020).
The most recent episode of the Coale Mind podcast discusses Mi Familia Vota v. Abbott, No. 20-50793 (Oct. 14, 2020), a challenge to several Texas voting laws in light of the COVID-19 pandemic. The case reminds of two important limits on federal judicial power in such disputes:
Early voting begins today in Texas. The Fifth Circuit stayed the district court’s order that would have let large Texas counties have more than one early-ballot pickup location. The panel majority concluded, inter alia, that the plaintiffs misconstrued the entirety of the Governor’s actions: “The July 27 and October 1 Proclamations—which must be read together to make sense—are beyond any doubt measures that ‘make[] it easier’ for eligible Texans to vote absentee. How this expansion of voting opportunities burdens anyone’s right to vote is a mystery” (citation omitted). From there, the majority concluded that the plaintiffs overstated the claimed burden, and failed to give sufficient weight to the Governor’s asserted interest in preventing voter fraud. A concurrence criticized the Governor’s use of emergency power: “If a governor can unilaterally suspend early voting laws to reach policy outcomes that you prefer, it stands to reason that a governor can also unilaterally suspend other election laws to achieve policies that you oppose.” Texas LULAC v. Hughs, No. 20-50867 (Oct. 12, 2020).
“[C]ourt changes of election laws close in time to the election are strongly disfavored. … [I]n staying a preliminary injunction that would change election laws eighteen days before early voting begins, we recognize the value of preserving the status quo in a voting case on the eve of an election, and we find that the traditional factors for granting a stay favor granting one here.” Texas Alliance for Retired Americans v. Hughs, No. 20-40643 (Sept. 30, 2020).
The Fifth Circuit has ruled in the closely-watched constitutional challenge to the Affordable Care Act, Texas v. United States, No. 19-10011 (Dec. 18, 2019). The panel majority opinion, written by Judge Elrod and joined by Judge Englehardt, held:
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.
(emphasis added). Judge King dissented, stating: “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.”
