Notice & Comment

Background on Texas v. United States

The Fifth Circuit will hear oral argument tomorrow in Texas v. United States, a sweeping challenge to the Affordable Care Act arising out of Congress’s decision, in late 2017, to eliminate the penalty for going without insurance.

The case should never have been taken seriously. The red states that brought the suit don’t have standing to bring it; Congress introduced no constitutional defect into the Act by zeroing out the mandate penalty; and the proper remedy for any constitutional defect is to sever the mandate, not invalidate the whole ACA.

But here we are. For those of you looking to come up to speed, I’ve pulled together my writings on the case since it was first filed. (Jonathan Adler, who’s also written extensively about the case, has pulled together a similar compilation.)


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