#TexasFoldEm: One State, Two State, Red State, Blue State???

via University of Michigan Law Professor and all-around mensch Nicholas Bagley (this is all via Twitter...I've reformatted to clean it up a bit):

The Justice Department has filed its supplemental brief with the Fifth Circuit. In it, the Department clarifies that a case or controversy still exists because, "critically," the government "continues to enforce the ACA."

The Justice Department nonetheless thinks that neither the House of Representatives nor the blue states have standing. And if the Fifth Circuit dismisses the appeal, the Department says that O'Connor's opinion should *not* be vacated.

Significantly, the Justice Department now says that it will continue to enforce the ACA "pending a final judicial determination of the constitutionality of the individual mandate as well as the severability of the ACA's other provisions."

That's enough to put the case on a firm footing, standing-wise. Nonetheless, when pressed, the Justice Department argues that the House of Representatives lacks standing to take an appeal, and I think it's probably right about that.

More importantly, it also argues that the blue states lacked standing because nothing in O'Connor's declaration alters their "tangible legal rights." That's a much more adventurous argument.

Basically, the Department says that O'Connor's declaration that the ACA is invalid should be understood to bind only parties to the case, not "nonparties like the state intervenors." But unless I'm missing something, that's wrong: intervention *makes* you a party to the lawsuit.

The Department says the blue states have got to have an independent basis for thinking that invalidation in the red states would cause them injury. Blue states would have to argue, for example, that unhealthy people would flock to them, raising costs for their own citizens.

I don't buy it. The Department ignores that the plaintiffs have sought complete invalidation of the ACA, not just invalidation in red states. The blue states clearly have an interest in *that* question sufficient to ground intervention.

Maybe matters would be different if the red-state plaintiffs amended their complaint. But they haven't. The notion that the blue states are somehow strangers to this controversy is nuts, not least because district courts grant relief extending beyond the plaintiffs all the time.

(For the record, I don't think district courts ought to enter that kind of sweeping relief. And in a world where national declarations/injunctions aren't a thing, the Justice Department's views would carry more weight. But that's not our world.)

At any rate, even the United States thinks that the standing of the blue states shouldn't matter here. We've got a live case or controversy over whether the Trump administration should continue enforcing the ACA. That should end the matter. /fin

This red vs. blue state stuff ties in directly with another Twitter discussion between Topher Spiro (of CAP, which I have a paid part-time contract with), conservative/anti-ACA law professor Jonathan Adler and myself from the other day:

Jonathan H. Adler: If CA5 says there's no standing to appeal, that judgment would likely be based (in part) on the lack of an injunction. (O'Connor only awarded declaratory relief thus far.) Once an injunction is entered, that would change.

Topher Spiro: Under nightmare scenario, 5th Circuit rules blue states don't have standing to appeal, and district judge immediately stops the ACA. But then blue states would likely have standing to get a stay of the injunction pending further appeal.

Jonathan H. Adler: Right unless (and here's the scenario that might keep you up at night), what if Judge O'Connor suddenly loses his fondness for nationwide injunctions and only enjoins ACA in plaintiff red states?

Topher Spiro: In my scenario, would the ACA be null and void in the time before an emergency stay can be granted? Like the ACA could cease to exist technically for say an hour?

Jonathan H. Adler‏: Doubt it. I would be surprised if any judge (including O'Connor) would enter such an order without a stay providing opportunity for appeal.

Topher Spiro‏: couldn't citizens in those states appeal?

Jonathan H. Adler‏: Maybe. That they weren't part of the case in the trial court creates a potential problem. (isn't legal procedure fun?)

Charles Gaba‏: Setting aside any schadenfreude I might feel (there’s plenty of non-Trumpsters in those states, after all) how would that even work? Would the ACA taxes still apply in those states, but not pre-existing condition protections? How about the Medicare Part D donut hole closure?  How would multi-state ACA policies work if the rules applied in some states but not others? What about ACA employer plan regulations where the company has employees in multiple states?

Jonathan H. Adler: Good question! These sorts of arguments might give blue states ability to appeal in this red-state-only-injunction scenario. As I said, this hypothetical scenario gets messy.

Charles Gaba‏: Oh, good, because everything surrounding the #ACA was far too clean and logical up until now...