There is literally no rule more basic to U.S. litigation than the rule of five. The Supreme Court has nine seats. It takes a majority to decide a case. A decision joined by five or more justices is a binding interpretation of the law that controls all other court decisions. An opinion dissenting from such a decision is just someone’s views.

And yet, a pair of briefs filed Wednesday evening by a team of anti-Obamacare lawyers — including one filed by the Trump Justice Department and another filed by Texas Attorney General Ken Paxton on behalf of several red states — fails to grasp this rudimentary rule. Both briefs, in a case asking a federal court to repeal the entirety of Obamacare, rely heavily on a dissenting opinion by four of the Supreme Court’s most conservative members. And a dissenting opinion, by definition, is not the law.

The case is Texas v. United States.

Making something of nothing

As originally enacted, the Affordable Care Act’s “individual mandate” required most Americans to either obtain health insurance or pay higher income taxes. The Supreme Court famously upheld this provision of the original, 2010 law as a valid exercise of Congress’ power to tax.


Seven years later, after Congress spent the better part of the year debating plans to repeal the Affordable Care Act in its entirety and failed to enact any one of these plans, Congress passed a tax law which contained a single provision changing the tax penalty for failing to buy insurance to zero dollars. Thus, Congress chose to leave the entire law intact, with the exception that it effectively repealed the individual mandate.

Although the 2017 version of the mandate does nothing — it requires individuals to either carry insurance or pay zero dollars — the Texas plaintiffs claim that it is now unconstitutional on the theory that the Supreme Court upheld it as a tax, but it no longer functions as a tax because it doesn’t collect any tax revenue. That’s a plausible argument, but it should be a purely academic one. Who cares if a provision of the law that literally does nothing is unconstitutional?

Indeed, the fact that the challenged provision does absolutely nothing should be the end of this case. In order to file a federal lawsuit, a plaintiff must have “standing,” meaning that they must be able to show that the law they are challenging injures them in some way. But a zero dollar tax injures no one, so no one has standing to challenge it.

Nevertheless, the Texas plaintiffs ask the courts to ignore this standing requirement and strike down the neutered mandate. Then they seek much, much more.

4 > 5

When a court declares one provision of a larger federal statute unconstitutional, it often must ask whether other, constitutional provisions of the law must fall with it — an inquiry known as “severability.” Severability, by its very nature, is a speculative inquiry. It asks whether Congress would have enacted the constitutional provisions of a law if it had known that the unconstitutional provisions could not take effect.


When engaging in this speculation, moreover, courts must apply a very strong presumption that Congress did not intend for additional provisions to fall. As the Supreme Court explained most recently in Murphy v. National Collegiate Athletic Association, “in order for other . . . provisions to fall it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not’”

So Texas is a very easy case, even if you ignore the fact that these plaintiffs lack standing. And even if you concede that the zeroed-out mandate is unconstitutional, we already know what Congress would have done if it had known that the powerless mandate would be struck down. Again, Congress spent the better part of a year debating whether to repeal the Affordable Care Act, ultimately decided not to repeal the law, and then passed a law that canceled just one provision of Obamacare — the individual mandate. That’s conclusive proof that Congress intended to eliminate the mandate while leaving the rest of law intact.

To get around this proof, the Texas plaintiffs and the Trump administration rely heavily on a dissenting opinion penned by four conservative justices in NFIB v. Sebelius, the 2012 decision upholding most of the Affordable Care Act.

In that opinion, the dissenting justices claimed that the original version of the individual mandate — the version that actually did something — is unconstitutional. They then argued that the Affordable Care Act is a carefully balanced machine made up of interlocking regulations, subsidies, and taxes. Remove a major cog in this machine, they argued, and the entire apparatus must fall because each moving part depends on the others.

Texas and the Trump administration argue that this logic should also apply to a decision striking down the zeroed-out, 2017 version of the mandate.

There are more problems with this argument than one can count. The most obvious one is, again, that a dissenting opinion is not the law. Texas’ and the Trump administration’s argument rests on the assumption that four justices are more than five.


Moreover, not only is a dissenting opinion not the law, but a majority of the Supreme Court explicitly rejected the dissent’s argument that the Affordable Care Act is collection of interlocking parts that must stand or fall together. While NFIB left most of the law intact, it did strike down a provision that imposed strict financial consequences on states that rejected Obamacare’s Medicaid expansion.

But NFIB did not hold that, because this one important cog was removed from Obamacare’s machine, the entire law must fall. “We have no way of knowing how many States will accept the terms of the expansion,” Chief Justice John Roberts wrote in the controlling opinion, “but we do not believe Congress would have wanted the whole Act to fall, simply because some may choose not to participate.” The bulk of the law, he noted, “will remain ‘fully operative as a law,’ and will still function in a way ‘consistent with Congress’ basic objectives in enacting the statute.’”

The same logic should apply to Texas. After all, the practical difference between the post-2017 version of the law, which contains a powerless “mandate” that does absolutely nothing, and a different version of the law with the zeroed-out mandate excised, is absolutely nothing. With or without the gelded mandate, the law functions exactly the same. And thus it remains “fully operative as a law” and will “still function in a way ‘consistent with Congress basic objectives'” in enacting the 2017 version of the statute.

And there’s another major problem with Texas and the Trump administration’s reliance on the NFIB dissent. Even if that dissent were the law, it was written in 2012. Murphy was handed down in 2018. Thus, to the extent that the NFIB dissent conflicts with Murphy, it is superseded by Murphy. Courts must uphold the bulk of the Affordable Care Act unless it is “evident” that Congress would not have enacted the bulk of the law without the do-nothing mandate.

The theory behind Texas, in other words, does not have any basis in American law. But the two briefs’ reliance on the NFIB dissent is still revealing. The real premise underlying Texas is that, now that the courts have taken a sharp right turn, dissenting opinions penned by the Supreme Court’s most conservative members should be treated as if they were the law, and the law itself should be ignored.

A least some members of the United States Court of Appeals for the Fifth Circuit, which will hear Texas in July, appear to agree with this premise — as evidenced by a recent abortion case where the Fifth Circuit defied a recent Supreme Court decision handed down before Justice Anthony Kennedy left the bench. Significantly, Chief Justice Roberts voted to stay the Fifth Circuit’s defiance, signaling to lower courts that they cannot simply ignore the Supreme Court’s decisions.

Texas will be a good test of whether the Fifth Circuit got the message.