Justice Clarence Thomas turned to the ongoing pandemic when interrogating the issue of standing in the Affordable Care Act case at the Supreme Court on Tuesday.
“Putting the Chief Justice’s question in today terms: I assume that in most places there is no penalty for wearing a face mask or a mask during Covid, but there is some degree of opprobrium if someone does not wear it in certain settings. What if someone violates that command — let’s say it’s in similar terms to the mandate here, but no penalty — would they have standing to challenge the mandate to wear a mask?”
Michael Mongan, California’s solicitor general who is defending Obamacare in court today, argued that without a threat of enforcement there can be no harm.
The health care law has been challenged by 18 Republican states led by Texas, who are claiming it’s unconstitutional for the federal government to command people to purchase health care. The health care law's "individual mandate" imposes a tax penalty on people who do not have health insurance, but Congress lowered the mandate to $0 in 2019, something Mongan argued undercuts the Republican states' argument.
Thomas, who has historically been silent from the bench sometimes for years at a time but has begun asking more questions amid to the Court's remote pandemic hearings, interjected to ask whether that theory is in keeping with past cases had found “even without a penalty, you could have a chilling effect.”
Mongan said that while there are multiple theories of harm surrounding the case, the plaintiffs had not offered a different theory that there was harm inflicted by a “toothless” individual mandate from previous attempts to undermine the suit.
Some 20 million Americans depend on the Affordable Care Act for their health insurance; the Supreme Court upheld the law when it was challenged in 2012, but is now considering it again with a solid 6-3 conservative majority.