No. _______

In the Supreme Court of the United States
THE STATES OF CALIFORNIA, COLORADO, CONNECTICUT,
DELAWARE, HAWAII, ILLINOIS, IOWA, MASSACHUSETTS,
MICHIGAN, MINNESOTA, NEVADA, NEW JERSEY, NEW YORK,
NORTH CAROLINA, OREGON, RHODE ISLAND, VERMONT,
VIRGINIA, AND WASHINGTON, ANDY BESHEAR, THE
GOVERNOR OF KENTUCKY, AND THE DISTRICT OF COLUMBIA,
Petitioners,
v.
THE STATE OF TEXAS, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI
XAVIER BECERRA
Attorney General of California
KATHLEEN BOERGERS
Supervising Deputy Attorney
General
NIMROD PITSKER ELIAS
NELI N. PALMA
Deputy Attorneys General

MICHAEL J. MONGAN
Solicitor General
SAMUEL P. SIEGEL*
HELEN H. HONG
Deputy Solicitors General
AMARI L. HAMMONDS
Associate Deputy Solicitor
General

January 3, 2020

STATE OF CALIFORNIA
DEPARTMENT OF JUSTICE
1300 I Street
Sacramento, CA 95814
(916) 210-6269
Sam.Siegel@doj.ca.gov
*Counsel of Record

(Additional counsel listed on signature pages)

 i
QUESTIONS PRESENTED
As part of the Patient Protection and Affordable
Care Act (ACA), Congress adopted 26 U.S.C. § 5000A.
Section 5000A provided that “applicable individual[s]
shall” ensure that they are “covered under minimum
essential coverage,” 26 U.S.C. § 5000A(a); required
any “taxpayer” who did not obtain such coverage to
make a “[s]hared responsibility payment,” id.
§ 5000A(b); and set the amount of that payment, id.
§ 5000A(c). In National Federation of Independent
Business v. Sebelius, 567 U.S. 519, 574 (2012), this
Court held that Congress lacked the power to impose
a stand-alone command to purchase health insurance
but upheld Section 5000A as a whole as an exercise of
Congress’s taxing power, concluding that it affords
individuals a “lawful choice” between buying health
insurance or paying a tax in the amount specified in
Section 5000A(c). In 2017, Congress set that amount
at zero but retained the remaining provisions of the
ACA. The questions presented are:
1. Whether the individual and state plaintiffs in
this case have established Article III standing to
challenge the minimum coverage provision in Section
5000A(a).
2. Whether reducing the amount specified in
Section 5000A(c) to zero rendered the minimum coverage provision unconstitutional.
3. If so, whether the minimum coverage provision
is severable from the rest of the ACA.

 ii
PARTIES TO THE PROCEEDING
Petitioners the States of California, Connecticut,
Delaware, Hawaii, Illinois, Massachusetts, Minnesota
(by and through its Department of Commerce), New
Jersey, New York, North Carolina, Oregon, Rhode
Island, Vermont, Virginia, and Washington, Andy
Beshear, the Governor of Kentucky, and the District
of Columbia are intervenor-defendants in the district
court and appellants in the court of appeals. Petitioners the States of Colorado, Iowa, Michigan, and Nevada intervened as defendants in the court of appeals.
The United States House of Representatives intervened as a defendant in the court of appeals and will
be concurrently filing its own petition for a writ of certiorari.
Respondents the United States of America, the
United States Department of Health and Human
Services, Alex Azar II, Secretary of the U.S. Department of Health and Human Services, the United
States Internal Revenue Service, and Charles P.
Retting, the Commissioner of the Internal Revenue
Service, are defendants in the district court and filed
a notice of appeal. They remained appellants in the
court of appeals, but ultimately filed their appellate
brief on the appellees’ schedule and defended the
district court’s judgment.
Respondents the States of Texas, Alabama,
Arizona, Arkansas, Florida, Georgia, Indiana, Kansas,
Louisiana, Mississippi by and through Governor Phil
Bryant, Missouri, Nebraska, North Dakota, South
Carolina, South Dakota, Tennessee, Utah, and West
Virginia, and individuals Neill Hurley and John
Nantz, are plaintiffs in the district court and appellees
in the court of appeals.

 iii
RELATED PROCEEDINGS
U.S. Court of Appeals for the Fifth Circuit:
Texas, et al. v. United States, et al., No. 19-10011
(Dec. 18, 2019) (affirming in part and vacating
in part the district court’s grant of partial final
judgment)
U.S. District Court for the Northern District of Texas:
Texas, et al. v. United States, et al., No. 4:18-cv-167O (Dec. 30, 2018) (granting partial final
judgment on Count I of plaintiffs’ amended
complaint)

 iv
TABLE OF CONTENTS
Page
Opinions below ............................................................ 1
Jurisdiction .................................................................. 1
Constitutional and statutory provisions involved ...... 1
Introduction ................................................................. 2
Statement .................................................................... 4
A. Legal background ........................................... 4
B. Proceedings below ......................................... 10
Reasons for granting the petition ............................. 15
I. The questions presented warrant
immediate review ................................................ 15
II. The decision below is wrong ............................... 19
Conclusion.................................................................. 27
Appendix A — Court of appeals opinion and order
(Dec. 18, 2019)................................ 1a
Appendix B — District court stay order and administrative closure (Dec. 31, 2018)... 114a
Appendix C — District court final judgment
(Dec. 30, 2018) .......................... 116a
Appendix D — District court opinion and order granting stay and partial final judgment
(Dec. 30, 2018)............................ 117a
Appendix E — District court opinion and order granting partial summary judgment
(Dec. 14, 2018)............................ 163a
Appendix F — Constitutional and statutory
provisions ................................... 232a

 v
TABLE OF AUTHORITIES
Page
CASES
Ayotte v. Planned Parenthood of N. New
Eng.
546 U.S. 320 (2006) .................................. 23, 24, 25
Bhd. of Locomotive Firemen & Enginemen
v. Bangor & Aroostook R.R. Co.
389 U.S. 327 (1967) .............................................. 17
California v. Azar
911 F.3d 558 (9th Cir. 2018) ................................ 20
Clapper v. Amnesty Int’l USA
568 U.S. 398 (2013) .............................................. 20
Crane v. Johnson
783 F.3d 244 (5th Cir. 2015) ................................ 20
Free Enter. Fund v. Public Co. Accounting
Oversight Bd.
561 U.S. 477 (2010) .............................................. 25
Iancu v. Brunetti
139 S. Ct. 2294 (2019) .......................................... 15
King v. Burwell
135 S. Ct. 2480 (2015) .............................. 4, 5, 7, 11
Legal Servs. Corp. v. Velazquez
531 U.S. 533 ......................................................... 24

 vi
TABLE OF AUTHORITIES
(continued)

Page

Murphy v. Nat’l Collegiate Athletic Ass’n
138 S. Ct. 1461 (2018) .................................... 23, 25
Nat’l Fed’n of Indep. Bus. v. Sebelius
567 U.S. 519 (2012) ...................................... passim
Rust v. Sullivan
500 U.S. 173 (1991) .............................................. 21
Texas v. United States
787 F.3d 733 (5th Cir. 2015) ................................ 20
United States v. Kebodeaux
570 U.S. 387 (2013) .............................................. 15
United States v. Morrison
529 U.S. 598 (2000) .............................................. 15
STATUTES
4 U.S.C.
§ 8 .......................................................................... 22
22 U.S.C.
§ 7674 .................................................................... 22
26 U.S.C.
§ 36B ....................................................................... 4
§ 5000A ......................................................... passim
§ 5000A(a) ..................................................... passim
§ 5000A(b) ......................................................... 7, 22
§ 5000A(b)(3) ........................................................ 22
§ 5000A(c) ..................................................... passim

 vii
TABLE OF AUTHORITIES
(continued)

Page

26 U.S.C. (continued)
§ 5000A(c)(2) ......................................................... 22
§ 5000A(c)(4) ......................................................... 22
§ 5000A(f)................................................................ 7
§ 6055 .................................................................... 12
§ 6056 .................................................................... 12
28 U.S.C.
§ 1254(1) ................................................................. 1
§ 1291 ...................................................................... 1
42 U.S.C.
§ 280h-5 .................................................................. 6
§ 280k...................................................................... 6
§ 280k-1 .................................................................. 6
§ 280k-2 .................................................................. 6
§ 280k-3 .................................................................. 6
§ 294e-1 ................................................................... 6
§ 299b-33................................................................. 6
§ 299b-34................................................................. 6
§ 300gg .................................................................... 5
§ 300gg-1 ................................................................. 5
§ 300gg-3 ................................................................. 5
§ 300gg-4 ................................................................. 6
§ 300gg-11 ............................................................... 6
§ 300gg-14 ............................................................... 6
§ 300u-13 ................................................................ 6
§ 300u-14 ................................................................ 6
§ 1396a .................................................................... 6
§ 1396d(y)(1) ........................................................... 5
§ 1751 .................................................................... 22

 viii
TABLE OF AUTHORITIES
(continued)

Page

42 U.S.C. (continued)
§ 18022 .................................................................... 6
§ 18081 .................................................................... 4
§ 18082 .................................................................... 4
§ 18091 .................................................................. 11
Further Consolidated Appropriations Act,
2020, Pub. L. No. 116-94, 133 Stat. ___
(2019) .................................................................... 10
Tax Cuts and Jobs Act, Pub. L. No. 115-97,
131 Stat. 2054 (2017) ....................................... 9, 19
OTHER AUTHORITIES
163 Cong. Rec. S7666 (daily ed. Dec. 1, 2017) ............ 9
163 Cong. Rec. S7672 (daily ed. Dec. 1, 2017) ............ 9
American Health Care Act of 2017, H.R. 1628,
115th Cong. (2017) ................................................. 9
Better Care Reconciliation Act of 2017,
S. Amendment 270, 115th Cong. (2017) ................ 9
Continuation of the Open Executive Session to
Consider an Original Bill Entitled the Tax
Cuts and Jobs Act Before the S. Comm. on
Fin., 115th Cong. (2017) ...................................... 24
Federal Rule of Civil Procedure 54(b)....................... 11

 ix
TABLE OF AUTHORITIES
(continued)

Page

Health Care Freedom Act of 2017,
S. Amendment 667, 115th Cong. (2017) ................ 9
Obamacare Repeal Reconciliation Act of 2017,
S. Amendment 271, 115th Cong. (2017) ................ 9
Redhead & Kinzer, Cong. Research Serv.,
Legislative Actions in the 112th, 113th, and
114th Congresses to Repeal, Defund, or
Delay the Affordable Care Act (Feb. 7, 2017) ........ 9
Roubein, TIMELINE: The GOP’s Failed Effort
to Repeal Obamacare, The Hill, Sept. 26,
2017, https://tinyurl.com/s2x2g6o.......................... 9
Status of State Medicaid Expansion Decisions:
Interactive Map, Kaiser Family Found. (Nov.
15, 2019), https://tinyurl.com/y9gseqv5........... 5, 17

 1
PETITION FOR A WRIT OF CERTIORARI
The States of California, Colorado, Connecticut,
Delaware, Hawaii, Illinois, Iowa, Massachusetts,
Michigan, Minnesota (by and through its Department
of Commerce), Nevada, New Jersey, New York, North
Carolina, Oregon, Rhode Island, Vermont, Virginia,
and Washington, Andy Beshear, the Governor of
Kentucky, and the District of Columbia, respectfully
petition for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Fifth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App. 1a-113a)
will be reported at ___ F.3d ____ (5th Cir. 2019), and
is also available at 2019 WL 6888446. The relevant
orders of the district court are reported at 340 F. Supp.
3d 579 (App. 163a-231a) and 352 F. Supp. 3d 665 (App.
117a-162a).
JURISDICTION
The court of appeals had jurisdiction over petitioners’ appeal of the district court’s partial final judgment
under 28 U.S.C. § 1291. The judgment of the court of
appeals was entered on December 18, 2019. App. 1a.
The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions
are set forth in the appendix to this petition. App.
232a-244a.

 2
INTRODUCTION
The Patient Protection and Affordable Care Act
(ACA) affects the health and well-being of every American and has transformed our Nation’s healthcare
system. One of its hundreds of provisions is 26 U.S.C.
§ 5000A.
As originally enacted, that provision
required most Americans either to maintain a minimum level of healthcare coverage or to pay a specified
amount to the Internal Revenue Service. This Court
upheld that provision as an exercise of Congress’s
taxing power, affording individuals a “lawful choice”
between buying insurance or paying the tax. Nat’l
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 574
(2012) (NFIB ). In 2017, Congress amended Section
5000A to set at zero the amount of the tax imposed on
those who choose not to maintain healthcare coverage—thus rendering the minimum coverage provision
effectively unenforceable. At the same time, Congress
left every other provision of the ACA in place.
The lower courts in this case held that the plaintiffs have standing to challenge the now-unenforceable
minimum coverage provision and struck down that
provision as an unconstitutional command to purchase health insurance. The district court also would
have invalidated the entire ACA, on the theory that
the minimum coverage provision is “so interwoven”
with the rest of the Act that it could not be severed
from any other provision. App. 224a. A panel of the
court of appeals recognized that the district court’s
severability analysis was at least “incomplete.” Id. at
65a. But instead of resolving that legal issue itself,
the panel majority remanded for the district court to
“pars[e] through the over 900 pages of the post-2017
ACA” with a “finer-toothed comb” to determine
whether “particular segments” of the Act might be

 3
“inextricably linked” to the minimum coverage provision. Id. at 65a, 68a.
The court of appeals’ decision warrants immediate
review. This Court normally grants certiorari when a
lower court has invalidated a federal statutory provision on constitutional grounds, and that customary
approach is especially appropriate here. The actions
of the lower courts have cast doubt on hundreds of
other statutory provisions that together regulate a
substantial portion of the Nation’s economy. States,
health insurers, and millions of Americans rely on
those provisions when making important—indeed,
life-changing—decisions. The remand proceedings
contemplated by the panel majority would only
prolong and exacerbate the uncertainty already
caused by this litigation.
The decision below is both ripe for review and
incorrect on every point. As the dissent explains, after
the 2017 amendment to the ACA, Section 5000A “does
nothing more than require individuals to pay zero
dollars to the IRS if they do not purchase health insurance, which is to say it does nothing at all.” App. 75a
(King, J., dissenting). The individual plaintiffs lack
“standing to challenge a law that does nothing,” id.,
and the state plaintiffs have failed to substantiate
their alleged fiscal injuries, id. at 86a. In any event,
there is no constitutional problem. As amended,
Section 5000A is merely a precatory provision that (at
most) encourages Americans to buy health insurance
but does not compel anyone to do anything. Id. at 91a93a, 97a-98a. Finally, any question of severability in
this case requires no extended analysis. Severability
turns on the intent of Congress, and here “Congress
removed the coverage requirement’s only enforcement
mechanism but left the rest of the Affordable Care Act

 4
in place.” Id. at 73a. It “is difficult to imagine a
plainer indication that Congress considered the coverage requirement entirely dispensable and, hence,
severable.” Id. There is no need for any “searching
inquiry” (id. at 68a (majority opinion)) into hundreds
of distinct provisions, and no reason for this Court to
defer review given the enormous practical significance
of this case.
STATEMENT
A. Legal Background
1. Congress enacted the ACA in 2010 to expand
healthcare coverage, lower the cost of healthcare, and
improve health and quality of life. See NFIB, 567 U.S.
at 538. “The Act’s 10 titles stretch over 900 pages and
contain hundreds of provisions.” Id. at 538-539.
Collectively, those provisions affect every level of government and almost every aspect of an industry that
accounts for nearly one-fifth of the Nation’s economy.
D.Ct. Dkt. 91-2 at 164. 1
Among its many reforms, the ACA expanded access
to healthcare coverage by making a series of reforms
in the individual health insurance market. See generally King v. Burwell, 135 S. Ct. 2480, 2485-2487
(2015); D.Ct. Dkt. 91-1 at 16-19. It made health insurance more affordable by providing billions of dollars of
subsidies in the form of refundable tax credits to lowand middle-income Americans. King, 135 S. Ct. at
2487, 2489 (citing 26 U.S.C. § 36B and 42 U.S.C.
§§ 18081, 18082). It created government-run health
insurance marketplaces (known as “Exchanges”) that
allow consumers “to compare and purchase insurance
Citations to “D.Ct. Dkt.” are to the docket in N.D. Tex. Case No.
4:18-cv-167-O.

1

 5
plans.” Id. at 2485, 2487. And it adopted the provision
at issue in this case, 26 U.S.C. § 5000A, which “generally require[d] individuals to maintain health insurance coverage or make a payment to the IRS.” Id. at
2486.
The ACA also increased the number of people
eligible for healthcare coverage through Medicaid. See
generally NFIB, 567 U.S. at 541-542. 2 As a result,
thirty-six States and the District of Columbia have
expanded their Medicaid programs, with the federal
government covering most of the cost of that expansion. See 42 U.S.C. § 1396d(y)(1). 3 Nearly 12 million
individuals received healthcare coverage in 2016
through the ACA’s Medicaid expansion. D.Ct. Dkt. 152 at 10-11.
Other provisions of the ACA protect consumers and
their families. See, e.g., D.Ct. Dkt. 91-1 at 96-97. The
Act bars insurance companies from denying individuals coverage because of their health status (the
“guaranteed issue” requirement), 42 U.S.C. §§ 300gg,
300gg-1; refusing to cover pre-existing health conditions, id. § 300gg-3; or charging higher premiums to
The ACA originally required each State to expand its Medicaid
program or risk losing all of its federal Medicaid funds. See
NFIB, 567 U.S. at 542. This Court struck down that requirement
under the Spending Clause, see id. at 575-585 (plurality opinion);
id. at 671-689 (joint dissent), but it held that States that wanted
to expand their Medicaid programs could do so and receive the
federal funding made available by the ACA, see id. at 585-586
(plurality opinion); id. at 645-646 (opinion of Ginsburg, J.).
2

3 See generally Status of State Medicaid Expansion Decisions:
Interactive Map, Kaiser Family Found. (Nov. 15, 2019),
https://tinyurl.com/y9gseqv5 (Medicaid Map). Twenty-six of the
States that have expanded Medicaid are parties to this litigation,
including eighteen of the state petitioners and eight of the state
respondents. Id.

 6
less healthy individuals (the “community-rating”
requirement), id. § 300gg-4. See also NFIB, 567 U.S.
at 650-651. Because of those protections, more than
100 million Americans with pre-existing conditions—
including cancer, diabetes, asthma, high blood pressure, and pregnancy—cannot be denied coverage or
charged higher premiums because of their health
status. See D.Ct. Dkt. 91-1 at 14, 93. The ACA further
requires insurers to allow young adults to stay on their
parents’ health insurance plans until age 26, 42 U.S.C.
§ 300gg-14; prohibits insurers from imposing lifetime
or annual limits on the value of benefits provided to
any individual, id. § 300gg-11; and mandates that
insurance plans cover ten essential health benefits,
including prescription drugs, maternity and newborn
care, and emergency services, id. § 18022.
The ACA reformed the Nation’s healthcare system
in other important respects as well. For example, the
Act changes the way Medicare payments are made,
encouraging healthcare providers to deliver higher
quality and less expensive care. D.Ct. Dkt. 91-1 at 2325, 29-30. It authorizes the FDA to approve “biosimilar[s],” drugs that are similar to but less expensive
than ones that have already been approved. Id. at 2324. The Act also creates the Prevention and Public
Health Fund, which has supported state and local
responses to emerging public health risks such as flu
outbreaks and the opioid epidemic. Id. at 27, 30; see
also 42 U.S.C. §§ 280h-5, 280k, 280k-1, 280k-2, 280k3, 294e-1, 299b-33, 299b-34, 300u-13, 300u-14, 1396a.
And the ACA invests billions of dollars in local community health programs. D.Ct. Dkt. 91-1 at 27-29.
Nearly a decade after its enactment, the ACA has
achieved many of its goals. D.Ct. Dkt. 91-1 at 99-101.

 7
Among other accomplishments, the Nation’s uninsured rate dropped by 43 percent shortly after the
Act’s major reforms took effect. Id. at 9; see also id. at
19-20, 99; D.Ct. Dkt. 15-2 at 10-11. In 2017, 10.3
million people received coverage through the Exchanges, with over 8 million receiving tax credits to
help them pay their premiums. D.Ct. Dkt. 15-1 at 9798; D.Ct. Dkt. 91-1 at 17. An estimated 125,000 fewer
patients died from conditions acquired in hospitals in
2015 than in 2010, due in part to an ACA-funded program. D.Ct. Dkt. 91-1 at 11. And the costs of “uncompensated care” (i.e., providing healthcare services to
individuals who are unable to pay) fell by a quarter
nationally between 2013 and 2015—and by nearly half
in States that had expanded Medicaid. Id. at 12-13,
101.
2. The ACA has been the subject of frequent legal
challenges. See, e.g., NFIB, 567 U.S. 519; King, 135 S.
Ct. 2480. In NFIB, this Court addressed the constitutionality of 26 U.S.C. § 5000A. As originally enacted,
that section provided that all “applicable individual[s]
shall” ensure that they are “covered under minimum
essential coverage.” 26 U.S.C. § 5000A(a); see also id.
§ 5000A(f) (defining “minimum essential coverage”).
Any “taxpayer” who did not obtain such coverage was
required to make a “[s]hared responsibility payment,”
id. § 5000A(b), in the amount specified in Section
5000A(c).
With differing majorities, this Court upheld the
constitutionality of Section 5000A. Writing for himself, Chief Justice Roberts first concluded that Section
5000A would exceed Congress’s Commerce Clause
powers if it were construed to impose an enforceable,
stand-alone requirement that individuals purchase
health insurance. NFIB, 567 U.S. at 547-558 (Roberts,

 8
C.J.). The Chief Justice reasoned that the Commerce
Clause gave Congress the power to “regulate Commerce,” not to require individuals to “become active in
commerce by purchasing a product.” Id. at 550, 552
(Roberts, C.J.) (emphasis omitted). Four dissenting
Justices reached the same conclusion. See id. at 657
( joint dissent). The same five Justices also held that
an enforceable command to purchase minimum coverage could not be sustained under the Necessary and
Proper Clause. See id. at 560 (Roberts, C.J.); id. at
653-655 (joint dissent).
In a separate part of his opinion, announcing the
judgment of a different majority of the Court, the
Chief Justice reasoned that Section 5000A could be
upheld as a valid exercise of Congress’s power to “lay
and collect Taxes.” NFIB, 567 U.S. at 561, 574. 4 He
explained that it was “fairly possible” to read Section
5000A as imposing “a tax hike on certain taxpayers
who do not have health insurance.” Id. at 563
(Roberts, C.J.). Section 5000A as a whole was not a
command to purchase insurance, but instead offered
individuals a “lawful choice” between forgoing health
insurance and paying higher taxes, or buying health
insurance and paying lower taxes. Id. at 573-574 &
n.11.
3. The ACA has also engendered passionate political debate. Between 2010 and 2016, Congress considered several bills to defund, delay, or otherwise amend
Four Justices joined Part III-C of the Chief Justice’s opinion,
which upheld Section 5000A under Congress’s taxing powers.
See NFIB 567 U.S. at 589 (opinion of Ginsburg, J.). Those Justices did not formally join Parts III-B and III-D of that opinion,
which discussed the interpretation of Section 5000A. Id.
4

 9
the ACA, including legislation that would have
repealed the entire Act. See App. 8a. Except for a few
modest changes that attracted bipartisan support,
those efforts failed. Id. 5
In 2017, congressional opponents of the ACA
renewed their efforts to repeal many of the Act’s most
important reforms. Several votes were taken; each
one failed. 6 Congress did, however, make one change
to the law in December 2017. As part of the Tax Cuts
and Jobs Act (TCJA), Congress reduced to zero the
amount of the tax imposed by Section 5000A(c), effective January 1, 2019. See Pub. L. No. 115-97, § 11081,
131 Stat. 2054, 2092 (2017). The TCJA did not make
any other changes to the ACA. Indeed, several
congressional proponents of the bill emphasized that
it would not affect other aspects of the ACA. See, e.g.,
163 Cong. Rec. S7672 (daily ed. Dec. 1, 2017) (statement of Sen. Toomey that TCJA does not “change any
of the subsidies” or “anything except one thing”); 163
Cong. Rec. S7666 (daily ed. Dec. 1, 2017) (statement of
Sen. Scott that TCJA “take[s] nothing at all away from

5 See generally Redhead & Kinzer, Cong. Research Serv., Legislative Actions in the 112th, 113th, and 114th Congresses to
Repeal, Defund, or Delay the Affordable Care Act at 1 (Feb. 7,
2017).

See, e.g., American Health Care Act of 2017, H.R. 1628, 115th
Cong. (2017); Better Care Reconciliation Act of 2017, S. Amendment 270, 115th Cong. (2017); Obamacare Repeal Reconciliation
Act of 2017, S. Amendment 271, 115th Cong. (2017); Health Care
Freedom Act of 2017, S. Amendment 667, 115th Cong. (2017); see
generally Roubein, TIMELINE: The GOP’s Failed Effort to
Repeal Obamacare, The Hill, Sept. 26, 2017, https://tinyurl.com/
s2x2g6o.
6

 10
anyone who needs a subsidy, anyone who wants to
continue their coverage”). 7
B. Proceedings Below
1. Two months after Congress enacted the TCJA,
two private individuals and a group of States filed this
suit against the federal government. App. 10a. The
plaintiffs argued that because Congress reduced the
amount of the alternative tax provided for in Section
5000A(c) to zero, Section 5000A(a) was now unconstitutional on the ground that it could no longer be construed as part of a tax. Id. at 10a-11a. They further
argued that the rest of the ACA was now invalid as
well, because the minimum coverage provision was
“essential to and inseverable from” the remainder of
the Act. Id. at 10a. They sought declaratory relief and
preliminary and permanent injunctions forbidding the
federal defendants from enforcing any provision of the
ACA or its associated regulations. See id. at 11a.
The federal defendants agreed with the plaintiffs
that the minimum coverage provision now exceeded
Congress’s constitutional authority. App. 11a. At the
start of the litigation, the federal defendants argued
that the provision could not be severed from the ACA’s
guaranteed-issue and community-rating requirements, but that those three provisions could be severed from the remainder of the Act. Id. Sixteen States
and the District of Columbia (the state petitioners
here) intervened to defend the ACA. Id.

7 Since 2017, Congress has made additional limited changes to
the ACA, including by recently repealing the Act’s medical device
and “Cadillac” taxes, see Further Consolidated Appropriations
Act, 2020, Pub. L. No. 116-94, §§ 501, 503, 133 Stat. ___, (2019),
but it has continued to leave most of the Act’s provisions in place.

 11
The district court denied the plaintiffs’ motion for
a preliminary injunction but granted partial summary
judgment and declaratory relief in their favor. App.
11a-12a; 163a-231a. The court first held that the
individual plaintiffs had standing to bring their challenge because Section 5000A(a) “requires them to purchase and maintain certain health-insurance
coverage.” Id. at 182a. 8 As to the merits, the court
held that Section 5000A as a whole could no longer be
construed as an exercise of Congress’s taxing power,
principally because it would no longer “produce[ ] at
least some revenue for the Government.” Id. at 192a.
The court instead construed Section 5000A(a) as a
“standalone command” to purchase health insurance,
which exceeded Congress’s power under the Commerce Clause. Id. at 203a.
On the question of severability, the district court
focused primarily on the intent of the 2010 Congress
and certain legislative findings enacted by that Congress. It reasoned that “the text of the ACA is
unequivocal” that the minimum coverage provision is
“inseverable—because it is essential—from the entire
ACA—because it must work together with the other
provisions.” App. 213a (citing 42 U.S.C § 18091)
(emphasis omitted). The district court also believed
that NFIB and King “ma[d]e clear” that its severability conclusion was correct. Id. at 220a; see id. at 214a220a.
In a separate order, the district court entered a
partial final judgment under Federal Rule of Civil
Procedure 54(b), but stayed the effect of that judgment. App. 116a, 114a-162a. The state intervenor8 The district court did not address whether the state plaintiffs
had established standing. See App. 181a-185a.

 12
defendants and the federal defendants both filed notices of appeal. Id. at 14a & n.14.
2. a. Shortly after the appeal was docketed, the
United States House of Representatives successfully
moved to intervene to defend the ACA. App. 12a. 9 On
the day that opening briefs were due, the federal
defendants “changed their litigation position,” id.,
informing the court of appeals that they had “determined that the district court’s judgment should be
affirmed” in its entirety. C.A. Dkt. No. 514887530 at
1 (Mar. 25, 2019). In other words, the federal defendants agreed that the entire ACA should be invalidated
and were no longer “urging that any portion of the
district court’s judgment be reversed.” Id.
b. On December 18, 2019, a divided panel of the
Fifth Circuit affirmed in part and vacated in part.
App. 1a-113a. The panel majority first held that the
individual plaintiffs have standing to challenge the
minimum coverage provision because they “feel compelled by the individual mandate to buy insurance”
and bought insurance “solely for that reason.” Id. at
29a-30a. It also held that the state plaintiffs are
injured by the minimum coverage provision, reasoning
that Section 5000A(a) causes some state employees to
seek health insurance from the States, which in turn
must spend money “to issue forms verifying which
employees are covered” in accordance with other provisions of the ACA. Id. at 33a (citing 26 U.S.C.
§§ 6055, 6056); see also id. at 32a-39a.
On the merits, the majority agreed with the district
court that NFIB’s savings construction of Section
Around the same time, the States of Colorado, Iowa, Michigan,
and Nevada also successfully moved to intervene to defend the
ACA. App. 12a n.12.

9

 13
5000A was “no longer available,” now that Congress
had set the alternative tax provided for in Section
5000A(c) at zero. App. 44a. It held that “[t]he proper
application of NFIB to the new version of the statute”
required Section 5000A(a) to be read as a “command
to purchase insurance.” Id. at 45a. Interpreted that
way, the majority concluded that the amended statute
“finds no constitutional footing in either the Interstate
Commerce Clause or the Necessary and Proper
Clause.” Id.
As to severability, the majority vacated the district
court’s judgment.
App. 52a-72a.
The majority
concluded that the district court’s analysis was
“incomplete” because it gave “relatively little attention
to the intent of the 2017 Congress,” and failed to “do
the necessary legwork of parsing through the over 900
pages of the post-2017 ACA” and “explaining how particular segments are inextricably linked to the individual mandate.” Id. at 65a. It “direct[ed] the district
court to employ a finer-toothed comb on remand and
conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable
from the individual mandate.” Id. at 68a. The majority stated that “[i]t may still be that none of the ACA
is severable from the individual mandate,” and “[i]t
may be that all of the ACA is severable” or “that some
of the ACA is severable . . . and some is not.” Id. at
69a. It also directed the district court to consider the
federal defendants’ new arguments about the proper
scope of relief. Id. at 70a-72a. 10
10 In their Fifth Circuit brief, the federal defendants “changed
their litigation position to argue that the relief in this case should
be tailored to enjoin enforcement of the ACA in only the plaintiff
states,” and should “only reach ACA provisions that injure the
plaintiffs.” App. 70a-71a.

 14
c. Judge King dissented. App. 73a-113a. She
would have resolved the appeal at the outset on the
ground that the plaintiffs lacked standing to sue. App.
76a-91a. She observed that Congress’s 2017 amendment simply “change[d] the amount of the sharedresponsibility payment to zero dollars,” meaning that
Section 5000A now “does nothing more than require
individuals to pay zero dollars to the IRS if they do not
purchase health insurance, which is to say it does
nothing at all.” Id. at 75a. Thus, even assuming that
Section 5000A(a) “acts as a legal command,” the
individual plaintiffs are “free to disregard [it] without
legal consequence.” Id. at 80a. Any injury they might
have incurred by purchasing health insurance was
“entirely self-inflicted.” Id. at 79a. Judge King also
concluded that the state plaintiffs did not have standing because they failed to establish “that even a single
state employee enrolled in one of the state plaintiffs’
health insurance programs solely because of the unenforceable coverage requirement.” Id. at 86a-87a.
On the merits, Judge King concluded that Section
5000A is “constitutional, albeit unenforceable.” App.
74a; id. at 91a-98a. Because Congress “zeroed out” the
shared-responsibility payment, the minimum coverage provision “affords individuals the same choice
individuals have had since the dawn of private health
insurance”: either purchase insurance or “pay zero
dollars.” Id. at 91a. The majority’s focus on whether
“Congress’s taxing power or the Necessary and Proper
Clause authorizes” Section 5000A was a “red herring”
because Congress does not “exceed[ ] its enumerated
powers when it passes a law that does nothing.” Id. at
91a-92a.
Judge King agreed with the majority that there
were “serious flaws” in the district court’s severability

 15
analysis, App. 73a, but failed to see the “logic behind
remanding this case for a do-over,” id. at 98a. She
noted that severability is a “question of law that we
review de novo,” and which the court of appeals is “just
as competent as the district court” to address. Id. at
98a-99a. Moreover, in this case the severability
analysis is “easy.” Id. at 73a. “Congress removed the
coverage requirement’s only enforcement mechanism
but left the rest of the Affordable Care Act in place.”
Id. That action “plain[ly] indicat[es] that Congress
considered the coverage requirement entirely dispensable and, hence, severable.” Id.
REASONS FOR GRANTING THE PETITION
I. THE QUESTIONS PRESENTED WARRANT IMMEDIATE REVIEW
“[W]hen a lower court has invalidated a federal
statute,” the “usual” approach of this Court is to
“grant[ ] certiorari.” Iancu v. Brunetti, 139 S. Ct. 2294,
2298 (2019); see, e.g., United States v. Kebodeaux, 570
U.S. 387, 391 (2013); United States v. Morrison, 529
U.S. 598, 605 (2000). As the United States recently
told this Court, that “practice is consistent with the
Court’s recognition that judging the constitutionality
of a federal statute is ‘the gravest and most delicate
duty that th[e] Court is called upon to perform.’” Pet.
16, Barr v. Am. Ass’n of Political Consultants et al., No.
19-631 (filed Nov. 14, 2019); see also Pet. 24, United
States v. Sineneng-Smith, No. 19-67 (filed July 12,
2019).
That usual approach is particularly appropriate in
this case. The courts below not only “invalidated a
federal” statutory provision “on constitutional
grounds,” Morrison, 529 U.S. at 605, they did so in a
way that creates uncertainty about the status of the

 16
entire Affordable Care Act. The district court asserted
that the minimum coverage provision “‘is essential to’
and inseverable from ‘the other provisions of’ the ACA,”
App. 231a—meaning every one of the “hundreds of provisions” spread across the ACA’s “10 titles [and] over
900 pages,” NFIB, 567 U.S. at 538-539. And while all
three judges on the panel below recognized serious
flaws in that analysis, see App. 65a-70a, 73a, in
remanding for further examination the panel majority
commented that “[i]t may still be that none of the ACA
is severable from the individual mandate, even after
this inquiry is concluded,” id. at 69a.
The uncertainty created by this litigation is especially problematic because individuals, businesses,
and state and local governments make important
decisions in reliance on the ACA. Each year, for
example, millions of Americans make life-changing
decisions—like starting a family or changing jobs—in
reliance on the ACA’s patient protections and the
greater access to affordable healthcare coverage it
provides. 11 Millions more decide whether to purchase
health insurance on the state or federal Exchanges
created by the Act. 12 Health insurance companies
must decide whether to participate in the Exchanges
and, if so, how to set their premiums and in which
cities and counties to offer coverage. 13 And States
See Amicus Br. of Small Bus. Majority Found., C.A. Dkt. No.
514895946 (Apr. 1, 2019); Amicus Br. of Nat’l Women’s Law Center, et al., C.A. Dkt. No. 514897602 (Apr. 1, 2019).

11

12

See D.Ct. Dkt. 15-1 at 97-98; D.Ct. Dkt. 91-1 at 17.

13 See D.Ct. Dkt. 91-1 at 101-106; Amicus Br. of America’s Health
Ins. Plans, C.A. Dkt. No. 514896554 at 14 (Apr. 1, 2019) (“health
insurance providers . . . require significant lead time to develop

 17
must decide whether to expand their Medicaid programs (or continue existing expansions), whether to
operate their own Exchanges, and how to budget for
health-related spending in future years. 14 Prolonged
uncertainty about whether or to what extent
important provisions of the ACA might be invalidated
makes these choices more difficult, threatening
adverse consequences for American families,
healthcare markets, and the broader economy. 15
While the possibility of further proceedings in the
lower courts sometimes weighs against certiorari, see,
e.g., Bhd. of Locomotive Firemen & Enginemen v. Bangor & Aroostook R.R. Co., 389 U.S. 327, 328 (1967)
( per curiam), here it supports immediate review. This
is not a case where the court of appeals remanded for
further factfinding, see id., or for some other reason
necessitating additional proceedings in the district
court. The only reason this case is not final is because
the panel majority declined to resolve the severability
issue and instead “remand[ed] for a do-over.” App. 73a
(King, J., dissenting). But severability is a legal question, subject to de novo review, that is already poised
for resolution by an appellate tribunal. Remand
accomplishes little beyond “prolong[ing] this litigation
and the concomitant uncertainty over the future of the
healthcare sector.” Id. at 74a.
strategies and offerings”).
See D.Ct. Dkt. 91-1 at 31-66; Amicus Br. of Counties and Cities,
C.A. Dkt. No. 514897439 at 20-22 (describing healthcare funding
as a complex multi-year process between federal, state, and local
governments); Medicaid Map, https://tinyurl.com/y9gseqv5 (detailing States’ consideration of whether to expand Medicaid).
14

15 See, e.g., C.A. Dkt. No. 514820298 at 15-37 (Feb. 1, 2019) (declarations of health policy experts and government health officials
in support of the state petitioners’ motion to expedite appeal).

 18
Indeed, the panel majority’s decision directing the
district court to conduct a “searching inquiry” into the
entire ACA on remand only worsens the existing
confusion about the ACA’s future. App. 68a. At the
majority’s behest, the district court will “employ a
finer-toothed comb” and the “many [other] tools at its
disposal,” id. at 69a, to “pars[e] through the over 900
pages of the post-2017 ACA, explaining [whether] particular segments are inextricably linked to the individual mandate,” id. at 65a.
That process would
compound doubts in the healthcare markets about the
future of important provisions of the ACA.
As addressed at greater length in the next section,
such a process is also quite unnecessary here. There
is no need to consider issues of severability at all
because no plaintiff has established standing and, in
any event, an unenforceable minimum coverage provision does not offend the Constitution. See App. 76a98a (King, J., dissenting); infra pp. 19-23. At a minimum, however, there is no need for any court to
conduct the granular severability analysis envisioned
by the panel majority. Under the circumstances here
there can be no doubt that Congress wanted to keep
the rest of the ACA in place even without an enforceable minimum coverage provision, because that is precisely the effect of the amendment that Congress itself
enacted. See App. 98a-112a (King, J., dissenting);
infra pp. 23-26. 16
16 The “federal defendants’ new arguments as to the proper scope
of relief in this case,” App. 70a, are not a reason for this Court to
defer review. Those belated and novel arguments would only be
relevant if this Court ruled against petitioners on each of the
questions presented here. See id. at 99a n.12 (King, J., dissenting) (remedial issues are “largely moot” if the “coverage requirement is completely severable from the rest of the ACA”). In that

 19
To be sure, plaintiffs (and now the federal government) may dispute those conclusions; but there is
every reason for this Court to resolve that dispute with
dispatch. As the federal government argued to the
court of appeals below, the “[p]rompt resolution of this
case will help reduce uncertainty in the healthcare
sector.” C.A. Dkt. 514906506 at 3 (Apr. 8, 2019). The
lower courts have struck down a federal statutory provision on constitutional grounds and cast doubt on the
validity of the entire ACA, arguably the most consequential package of legislative reforms of this century.
That uncertainty threatens adverse consequences for
patients, providers, and insurers nationwide. See
supra pp. 16-17. Further proceedings in the lower
courts will not allay that uncertainty. Under these
circumstances, this Court should grant immediate
review and resolve the case this Term.
II. THE DECISION BELOW IS WRONG
Review is also warranted because the decision
below is incorrect as to standing, the merits, and severability.
1. The panel majority’s standing analysis disregards the central holding in NFIB. This Court held
that Section 5000A as a whole must be read as offering
a “lawful choice” between maintaining healthcare coverage and paying a tax in an amount specified by Congress. 567 U.S. at 573-574 & n.11. The only change
Congress made to that statute in 2017 was to set the
amount of the tax at zero. See Pub. L. No. 115-97,
§ 11081, 131 Stat. 2054, 2092 (2017). As amended,
Section 5000A “still gives individuals the choice to
purchase insurance or make a shared-responsibility
event, the Court could address the proper scope of relief itself or
remand for further proceedings on that issue as appropriate.

 20
payment—but the amount of that payment is zero
dollars.” App. 93a (King, J., dissenting). Now that
Congress has reduced the tax to zero, the individual
plaintiffs do not need to do anything to comply with
the law. A statutory provision that offers individuals
a choice between purchasing insurance and doing
nothing does not impose any legally cognizable harm.
See id. at 79a-85a.
The majority below reasoned that the individual
plaintiffs have standing because they “feel compelled
by the individual mandate to buy insurance” and have
done so “solely for that reason.” App. 29a-30a. But
that analysis “overlooks what will happen if the individual plaintiffs fail to purchase insurance: absolutely
nothing.” Id. at 79a (King, J., dissenting). Any “injury
they incur by freely choosing to obtain insurance” is
“entirely self-inflicted.” Id. at 79a, 81a. Article III
does not allow plaintiffs to invoke the jurisdiction of
the federal courts on that basis. See id. at 85a.
As to the state plaintiffs, the majority held that
they have established standing based on “fiscal injury
as employers.” App. 32a. A fiscal injury caused by a
federal statute or policy can of course be a basis for
state standing. See, e.g., California v. Azar, 911 F.3d
558, 570-573 (9th Cir. 2018); Texas v. United States,
787 F.3d 733, 752-753 (5th Cir. 2015). But the burden
of establishing such an injury rests on the plaintiff
States, and allegations of financial injury do not
suffice if they are “purely speculative” and unsupported by “concrete evidence that [the State’s] costs
ha[ve] increased or will increase.” Crane v. Johnson,
783 F.3d 244, 252 (5th Cir. 2015); see also Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 420 (2013). Here,
the state plaintiffs did not produce concrete evidence
supporting either their primary theory of injury—that

 21
the existence of an unenforceable minimum coverage
provision would “forc[e] individuals into the States’
Medicaid and CHIP programs,” C.A. Dkt. 514939271
at 20 (May 1, 2019)—or the panel majority’s separate
theory that the provision would increase state costs for
“printing and processing [certain] forms,” App. 33a.
Indeed, as Judge King explained, “there is no evidence
in the record” supporting these alleged injuries. Id. at
86a (King, J., dissenting) (emphasis added); see id. at
86a-91a.
2. The majority’s analysis of the merits also
ignores the basic lesson of NFIB. Federal courts “have
a duty to construe a statute to save it, if fairly possible.” NFIB, 567 U.S. at 574 (Roberts, C.J.). “This
canon is followed out of respect for Congress, which we
assume legislates in the light of constitutional limitations.” Rust v. Sullivan, 500 U.S. 173, 191 (1991). In
NFIB, the Court invoked that canon when it construed
Section 5000A as a whole as offering a lawful choice
between purchasing health insurance and paying a
tax, see 567 U.S. at 574 & n.11, even though Section
5000A(a) by itself might “more naturally” be read “as
a command to buy insurance,” id. at 574 (Roberts,
C.J.).
Following the 2017 amendment, it remains fairly
possible—and thus necessary—to construe Section
5000A in a manner that presents no constitutional
problem. As noted, the only change Congress made
was to reduce the amount of the tax in Section 5000A(c)
to zero. Read in light of that amendment and the
construction adopted in NFIB, Section 5000A continues to offer individuals a choice between having health
insurance and not having health insurance—without
paying any tax if they make the latter choice. The
minimum coverage provision is now simply precatory;

 22
it may encourage Americans to buy health insurance,
but it imposes no legal obligation to do so. Viewed that
way, Section 5000A is no more constitutionally problematic than many other provisions adopted by Congress, including “sense of Congress” resolutions and
legislative findings, that may exhort or encourage but
do not impose any enforceable requirement or prohibition. 17 There is no basis for concluding that “Congress
exceeds its enumerated powers when it passes a law
that does nothing.” App. 91a-92a (King, J., dissenting);
see id. at 98a (the minimum coverage provision now
“functions as an expression of national policy or words
of encouragement, at most”).
In addition, Section 5000A may still be fairly interpreted as a lawful exercise of Congress’s taxing powers,
albeit one whose practical operation is currently suspended. Section 5000A retains several of the features
that the Court pointed to in construing it as a tax.
NFIB, 567 U.S. at 566. It is still set out in the Internal
Revenue Code; it includes references to taxable
income, number of dependents, and joint filing status,
26 U.S.C. § 5000A(b)(3), (c)(2), (c)(4); and it provides a
structure through which future taxpayers could be
directed to pay a tax as a consequence of choosing not
to maintain minimum health coverage, id. § 5000A(b).
While the “provision no longer produces revenue” at
the moment because the tax is currently set at zero,

17 See, e.g., 4 U.S.C. § 8 (“No disrespect should be shown to the
flag of the United States of America; the flag should not be dipped
to any person or thing.”); 22 U.S.C. § 7674 (sense of Congress
provision encouraging businesses to provide assistance to subSaharan Africa); 42 U.S.C. § 1751 (declaring it the policy of
Congress to “encourage the domestic consumption of nutritious
agricultural commodities”).

 23
App. 45a, there is nothing unconstitutional about leaving Section 5000A(a) on the books so that Congress
can more easily increase the amount of the tax again
later if it decides to do so.
The panel majority cast aside these interpretations,
instead reading Section 5000A(a) in isolation as an
unconstitutional “command to purchase insurance.”
App. 45a. But that is hardly the only construction that
is “fairly possible.” NFIB, 567 U.S. at 574 (Roberts,
C.J.). Indeed, “it boggles the mind to suggest that
Congress intended to turn a nonmandatory provision
into a mandatory provision by doing away with the
only means of incentivizing compliance with that
provision.” App. 96a-97a (King, J., dissenting).
3. Finally, the lower courts’ approach to severability is incorrect. The “touchstone” of any inquiry into
severability “is legislative intent.” Ayotte v. Planned
Parenthood of N. New Eng., 546 U.S. 320, 330 (2006).
When a court holds one part of a statute unconstitutional, it generally “sever[s] its problematic portions
while leaving the remainder intact,” id. at 329, unless
it is “evident that Congress would not have enacted
those provisions which are within its power, independently of those which are not,” Murphy v. Nat’l
Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1482 (2018)
(internal quotation marks and alterations omitted).
Applying those principles here is “quite simple.”
App. 98a (King, J., dissenting). If Section 5000A(a) is
now viewed as an unconstitutional command to purchase health insurance, then it is one that Congress
plainly intended to make unenforceable. By reducing
the amount of the alternative tax to zero, Congress
eliminated the only consequence for choosing not to
maintain healthcare coverage. At the same time, it
left every other provision of the ACA in place. So there

 24
is no need to speculate about whether Congress
“[w]ould . . . have preferred” to preserve the rest of the
ACA if it had known that the minimum coverage provision could not be enforced. Ayotte, 546 U.S. at 330.
We know from what Congress actually did that it
“believed the ACA could stand in its entirety without
the unenforceable coverage requirement.” App. 98a
(King, J., dissenting); see Legal Servs. Corp. v.
Velazquez, 531 U.S. 533, 560 (Scalia, J., dissenting)
(“One determines what Congress would have done by
examining what it did.”).
The surrounding circumstances only confirm that
intent. Just months before Congress reduced the
alternative tax to zero in the TCJA, it considered and
rejected several bills that would have repealed major
provisions of the ACA. Supra p. 9 & nn.5-6. Prominent congressional supporters of the TCJA also reassured the American public that the amendment to
Section 5000A would not “tak[e] anyone’s health
insurance away,” or do anything to “alter Title I of [the
ACA], which includes all of the insurance mandates
and requirements related to preexisting conditions
and essential health benefits.” E.g., Continuation of
the Open Executive Session to Consider an Original
Bill Entitled the Tax Cuts and Jobs Act Before the S.
Comm. on Fin., 115th Cong. 106, 286 (2017) (statement of Chairman Orrin Hatch). The history of the
2017 amendment supports the conclusion that Congress would not have wanted a “statute on which millions of people rely for their healthcare and livelihoods
to disappear overnight with the wave of a judicial
wand.” App. 106a (King, J., dissenting).
The panel majority identified multiple flaws in the
district court’s severability analysis. App. 65a-70a. In
particular, it acknowledged that the district court all

 25
but ignored “the intent of the 2017 Congress” that
zeroed out Section 5000A’s alternative tax. Id. at 65a.
But rather than resolving the straightforward severability question that was before it, the majority
remanded for a “more searching inquiry” by the
district court. Id. at 68a. As noted above, any such
remand is entirely unnecessary. See supra pp. 18-19.
Severability is a “question of law that [appellate
courts] review de novo.” App. 98a (King, J., dissenting). The inquiry focuses exclusively on the “statute’s
text and historical context,” which in this case the
court of appeals was “just as competent” to analyze as
the district court. Id. at 99a.
The remand proceeding directed by the panel
majority is exactly the sort of remedial exercise that
this Court has warned against. Courts may not use
their remedial powers to conduct the “quintessentially
legislative work” of “rewriting” statutes. Ayotte, 546
U.S. at 329 (brackets omitted). In telling the district
court to “pars[e] through the over 900 pages of the
post-2017 ACA” and conduct a “granular” analysis
with “a finer-toothed comb,” App. 59a, 65a, 68a, the
majority appears to invite the district court to “take a
blue pencil” to the ACA, Murphy, 138 S. Ct. at 1487
(Thomas, J., concurring). That exercise involves an
“editorial freedom” that “belongs to the Legislature,
not the Judiciary.” Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 509 (2010). And
it is especially unwarranted here, where the intent of
Congress as to the proper remedy could not be more
plain.
The panel majority’s flawed approach to severability, coupled with its mistaken analysis of standing and
the merits, casts doubt on the fate of a landmark
statute on which millions of Americans depend. The

 26
questions presented by this petition are purely legal,
of enormous practical importance, and fully ripe for
review by this Court. Under the circumstances here,
directing the district court to conduct a burdensome,
time-consuming, and wholly unnecessary re-evaluation of severability would serve no useful purpose,
while exacerbating uncertainty about the ACA’s
future and “ensur[ing] that no end for this litigation is
in sight.” App. 113a (King, J., dissenting). This Court
should grant immediate review.

 27
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
XAVIER BECERRA
Attorney General of California
MICHAEL J. MONGAN
Solicitor General
SAMUEL P. SIEGEL
HELEN H. HONG
Deputy Solicitors General
KATHLEEN BOERGERS
Supervising Deputy Attorney General
NIMROD PITSKER ELIAS
NELI N. PALMA
Deputy Attorneys General
AMARI L. HAMMONDS
Associate Deputy Solicitor General
January 3, 2020
(Additional counsel listed on the following pages)

 28
WILLIAM TONG
Attorney General of Connecticut
JOSEPH RUBIN
Assistant Deputy Attorney General
Counsel for the State of Connecticut
PHILIP J. WEISER
Attorney General of Colorado
ERIC R. OLSON
Solicitor General
Counsel for the State of Colorado
KATHLEEN JENNINGS
Attorney General of Delaware
ILONA KIRSHON
Deputy State Solicitor
JESSICA M. WILEY
DAVID J. LYONS
Deputy Attorneys General
Counsel for the State of Delaware
CLARE E. CONNORS
Attorney General of Hawaii
ROBERT T. NAKATSUJI
First Deputy Solicitor General
Counsel for the State of Hawaii
KWAME RAOUL
Attorney General of Illinois
JANE ELINOR NOTZ
Solicitor General
DAVID F. BUYSSE
Deputy Chief, Public Interest Division
MATTHEW V. CHIMIENTI
Assistant Attorney General, Special
Litigation Bureau
Counsel for the State of Illinois

 29
THOMAS J. MILLER
Attorney General of Iowa
NATHAN BLAKE
Deputy Attorney General
Counsel for the State of Iowa
MAURA HEALEY
Attorney General of Massachusetts
STEPHEN B. VOGEL
Assistant Attorney General
Counsel for the Commonwealth of Massachusetts
DANA NESSEL
Attorney General of Michigan
FADWA A. HAMMOUD
Solicitor General
Counsel for the State of Michigan
KEITH ELLISON
Attorney General of Minnesota
SCOTT IKEDA
Assistant Attorney General
Counsel for the State of Minnesota, by
and through its Department of Commerce
AARON D. FORD
Attorney General of Nevada
HEIDI PARRY STERN
Solicitor General
Counsel for the State of Nevada
GURBIR S. GREWAL
Attorney General of New Jersey
MATTHEW J. BERNS
Assistant Attorney General
MARIE SOUEID
Deputy Attorney General
Counsel for the State of New Jersey

 30
LETITIA JAMES
Attorney General of New York
BARBARA D. UNDERWOOD
Solicitor General
STEVEN C. WU
Deputy Solicitor General
LISA LANDAU
Bureau Chief, Health Care Bureau
ELIZABETH CHESLER
Assistant Attorney General, Health
Care Bureau
Counsel for the State of New York
JOSHUA H. STEIN
Attorney General of North Carolina
MATTHEW W. SAWCHAK
Solicitor General
RYAN Y. PARK
Deputy Solicitor General
SRIPRIYA NARASIMHAN
Deputy General Counsel
Counsel for the State of North Carolina
ELLEN F. ROSENBLUM
Attorney General of Oregon
BENJAMIN GUTMAN
Solicitor General
Counsel for the State of Oregon
PETER F. NERONHA
Attorney General of Rhode Island
MICHAEL W. FIELD
MARIA R. LENZ
Assistant Attorneys General
Counsel for the State of Rhode Island
THOMAS J. DONOVAN, JR.
Attorney General of Vermont
BENJAMIN D. BATTLES
Solicitor General
Counsel for the State of Vermont

 31
MARK R. HERRING
Attorney General of Virginia
TOBY J. HEYTENS
Solicitor General
Counsel for the Commonwealth of Virginia
ROBERT W. FERGUSON
Attorney General of Washington
JEFFREY G. RUPERT
Chief, Complex Litigation Division
JEFFREY T. SPRUNG
Assistant Attorney General
Counsel for the State of Washington
LA TASHA BUCKNER
General Counsel
S. TRAVIS MAYO
Chief Deputy General Counsel
TAYLOR PAYNE
Deputy General Counsel
Counsel for Andy Beshear, Governor of
Kentucky
KARL A. RACINE
Attorney General for the District of
Columbia
LOREN L. ALIKHAN
Solicitor General
CARL J. SCHIFFERLE
Acting Deputy Solicitor General
Counsel for the District of Columbia