The US Supreme Court has rejected a challenge by Republican state governors that would have invalidated the individual mandate included in the Affordable Care Act (ACA), otherwise known as Obamacare. The court ruled that the parties challenging the law lacked a legally required basis to sue, known as standing. This marked the third time that the Supreme Court has had an opportunity to rule the 2010 law unconstitutional and refused to do so. Many legal scholars have concluded that the latest ruling indicates that the law is destined to survive any future Constitutional challenges.

The Supreme Court’s decision was penned by Associate Justice Stephen G. Breyer, a member of the court’s three-member liberal minority, and was joined by an additional six members of the court. This majority ruling included Associate Justice Clarence Thomas, who had previously sided with the dissent in decisions upholding the ACA.

The latest challenge was filed by 18 Republican governors and two individual plaintiffs. The plaintiffs asserted that, once Congress eliminated the penalty that the law imposed on individuals who failed to obtain health insurance coverage, the law could no longer be considered a tax. In 2017, the penalty was reduced to zero. The Supreme Court ruled in 2012 that the penalty should be considered a tax and that the fact that the law included a tax meant that it was Constitutional under Congress’ power to levy taxes. Plaintiffs in the latest challenge argued that, since the law no longer included a penalty (a tax), the entire law should be considered unconstitutional.

Plaintiffs’ lack of standing doomed challenge

Associate Justice Breyer focused his opinion on a narrow, technical basis for throwing out the plaintiffs’ challenge, namely that of standing. If plaintiffs bring a claim where they have not suffered any measurable harm, then they do not have a legal right to file suit. This is known as a lack of standing, and Justice Breyer used his opinion to enumerate why the plaintiffs could not consider themselves to have suffered an injury under the law. The opinion explained that the lawsuit’s individual plaintiffs could not consider themselves injured by what amounted only to a strong suggestion that they purchase health insurance coverage with no penalty for failing to do so.

While the group of 18 governors had argued that the mandate as revised would result in more citizens enrolling in state-sponsored insurance coverage plans, Justice Breyer found no basis for believing this to be the case. Justice Breyer wrote, “The state plaintiffs have failed to show that the challenged minimum essential coverage provision, without any prospect of penalty, will harm them by leading more individuals to enroll in these programs.” The opinion went on to state that a “penalty might have led some inertia-bound individuals to enroll. But without a penalty, what incentive could the provision provide?”

Associate Justice Thomas reemphasized the narrow basis for the rejection of the plaintiffs’ arguments in a concurring opinion: “[T]here is a fundamental problem with the arguments advanced by the plaintiffs in attacking the act — they have not identified any unlawful action that has injured them. Today’s result is thus not the consequence of the court once again rescuing the act, but rather of us adjudicating the particular claims the plaintiffs chose to bring.”

In a dissent to the majority opinion, Associate Justice Samuel Alito wrote, "No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats. A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. So a tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation's history. Fans of judicial inventiveness will applaud once again. But I must respectfully dissent.”