¹ California v. Texas, Texas, 141 S. Ct. 2104, 2123 (2021) (Alito, J., dissenting).

² Id. at 2120.

³ The Patient Protection and Affordable Care Act, 26 U.S.C. § 5000A(a) (2010).

⁴ § 5000A(b)(1) (“If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c)”).

⁵ §5000A(c)(1)(A)-(B).

⁶ See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012); King v. Burwell, 576 U.S. 473 (2015).

⁷ Sebelius, 567 U.S. at 520.

⁸ Id. at 520-21, 588 (Decided before the 2017 Amendments in the Tax Cuts and Jobs Act decreased the penalty to $0, the Court stated: “In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.”).

⁹ King, 576 U.S. at 492-94 (“Here, the statutory scheme compels [the Court] to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid…Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” See also New York State Dept. of Social Servs v. Dublino, 413 U.S. 405, 419-20 (1973) (“We cannot interpret federal statutes to negate their own stated purposes.”)).

¹⁰ Id. at 494, 498.

¹¹ California, 141 S. Ct., 2126 (Alito, J., dissenting).

¹² Press Release, White House Office of the Press Secretary, Statement from the Press Secretary on the Tax Cuts and Jobs Act (Dec. 2, 2017), https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretary-tax-cuts-jobs-act/ [https://perma.cc/FV4E-Z5LZ].

¹³ § 5000A(c)(3)(A).

¹⁴ California, 141 S. Ct., 2112.

¹⁵ Id. at 2116, 2117; Id. at 2119 (State plaintiffs pointed to “the costs of providing beneficiaries of state health plans with information about their health insurance coverage, as well as the cost of furnishing the IRS with that related information” as increasing administrative costs).

¹⁶ Id. at 2113 (citing Brief for Respondents-Cross Petitioner Hurley et. al. 19-20).

¹⁷ Id.

¹⁸ Id.

¹⁹ Id.

²⁰ Texas v. United States, 340 F. Supp. 3d 579, 593-595 (ND Tex. 2018) [hereinafter Texas I].

²¹ Sebelius, 567 U.S. at 520-21.

²² Texas I, 340 F. Supp. at 605.

²³ Id. at 613 (“The requirement – the Individual Mandate- was essential to the ACA’s architecture. Congress intended it to place the Act’s myriad parts in perfect tension. Without it, Congress and the Supreme Court have stated, that architectural design fails.” The District Court proceeds, stating, “Based on unambiguous text, Supreme Court guidance, and historical context, the Court finds ‘it is evidence that the Legislature would not have enacted” the ACA “independently of” the individual mandate.” Id. (citing Alaska Airlines Inc. v. Brock, 480 U.S. 678, 684) (1987)).

²⁴ Id. at 619.

²⁵ Texas v. United States, 945 F.3d 355, 377-393 (5th Cir. 2019) [hereinafter Texas II].

²⁶ Id. at 400.

²⁷ Id. at 402 (“[I]t 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.”).

²⁸ California, at 2126 (Alito, J., dissenting).

²⁹ Id. at 2133 (citing Art. III, § 2).

³⁰ Id. (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)).

³¹ Id.

³² Id. (citing Brief for Respondents-Cross Petitioner Hurley et. al. 19-20).

³³ Id. at 2114.

³⁴ Id.

³⁵ Id.

³⁶ Id. (citing Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979) (“A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement”)).

³⁷ Id. (citing Susan B. Anthony List v. Driehaus, 573 U.S. 149, 164 (2014)).

³⁸ Id. at 2115(citing Allen v. Wright, 468 U.S. 737, 753, n.19 (1984)).

³⁹ Id. at 2116 (citing Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 107 (1998)). The Court then writes that, if they find standing to attack an unenforceable provision, this would allow unelected judges to “conduct oversight of decisions of the elected branches of Government.” See United States v. Richardson, 418, U.S. 166, 188 (1974) (Powell, J., concurring).

⁴⁰ California, at 2116.

⁴¹ Id. (citing Cuno, 547 U.S. at 342 (internal quotation marks omitted)).

⁴² Id. at 2117.

⁴³ Id. (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013)).

⁴⁴ Id. at 2118.

⁴⁵ Id.

⁴⁶ Id. at 2119.

⁴⁷ Id. at 2119-20.

⁴⁸ Id. at 2120 (citing §§6055(b)(1)(B)(iii)(II)(c)(1) (“requiring certification as to whether the beneficiary’s plan qualifies for cost-sharing or premium tax credits under §36B”); §§6056(b)(2)(B), (c)(1) (“requiring certification as to whether the plan qualifies as an ‘eligible employer-sponsored plan’ that satisfied §4980H’s employer mandate”)).

⁴⁹ Id.

⁵⁰ Id.

⁵¹ Id. at 2120-21 (Thomas, J., concurring).

⁵² Id. at 2121

⁵³ Id. at 2122 (citing Brownback v. King, 592 U.S.,___, ___, n. 4 (2021) (slip op., at 5, n. 4) (“we are a court of review, nor of first view)).

⁵⁴ Id. (citing Brief for Respondent/Cross-Petitioner States 18-30).

⁵⁵ Id.

⁵⁶ Id. (citing Murphy v. National Collegiate Athletic Assn., 584 U.S. ___,___-___ (2018) (slip op., at 3-4) (Thomas, J., concurring).

⁵⁷ Id. at 2123.

⁵⁸ Id.

⁵⁹ Id. at 2128 (2021) (Alito, J., dissenting) (“The States have clearly shown that they suffer concrete and particularized financial injuries that are traceable to conduct of the Federal Government. The ACA saddles them with expensive and burdensome obligations, and those obligations are enforced by the Federal Government. That is sufficient to establish standing.”).

⁶⁰ Id. at 2131 (Alito, J., dissenting).

⁶¹ Id. at 2134-40 (Alito, J., dissenting).

⁶² Tad Heuer & Andrew M. London, Supreme Court Uphold Affordable Care Act (Again) in California v. Texas, Foley Hoag, LLP (June 17, 2021), https://foleyhoag.com/publications/alerts-and-updates/2021/june/supreme-court-upholds-affordable-care-act-again-in-california-v-texas [https://perma.cc/6ZZY-U2GA].

⁶³ Transcript for Oral Argument at 55-56, 63, California v. Texas, 141 S. Ct. 2104 (2021) (No number in original).

⁶⁴ Xavier Baker, United States: Not With A Bang But a Whimper Supreme Court Kicks Latest ACA Challenge For Lack of Standing, Sheppard Mullin (June 17, 2021), https://www.sheppardhealthlaw.com/2021/06/articles/affordable-care-act-aca/supreme-court-aca-challenge [https://perma.cc/SFU8-QSDM].