In the 2007 case Massachusetts v. EPA,1 the Supreme Court determined, in a 5–4 vote, that Massachusetts had standing to challenge the EPA’s failure to regulate greenhouse gases.2 Integral to at least one Justice’s vote was the idea that states should receive “special solicitude,” special or favorable treatment, when trying to prove standing.3 The doctrine of special solicitude has been murky and divisive from the outset, and in the following years many courts have declined to invoke it.4 Nonetheless, it has never been formally overruled. Last Term, in California v. Texas,5 the Supreme Court held that the plaintiffs — including twenty states — lacked standing to challenge the Patient Protection and Affordable Care Act6 (ACA), popularly known as “Obamacare.”7 Yet, neither the majority, the dissent, the lower courts, nor the parties themselves seemed to believe that the doctrine of special solicitude was controlling, or even relevant, precedent — adding to already existing evidence that the doctrine may, functionally, no longer be good law. The result is a precarious doctrine that raises some of the same practical concerns as the Court’s recent trend of “stealth overruling” precedent.
In 2010, Congress passed the 906-page ACA along intensely partisan lines.8 Two of the most controversial and oft-litigated provisions9 have been the so-called “individual mandate” — which requires most Americans to obtain health insurance10 — and the “shared responsibility provision” (SRP) — which operates as an exaction on individuals required to comply with the individual mandate who fail to obtain health insurance.11 Most famously, in National Federation of Independent Businesses v. Sebelius12 (NFIB), these provisions were challenged on the grounds that the Act constituted constitutionally impermissible overreach.13 The case resulted in a highly fractured and hotly debated opinion14 authored by Chief Justice Roberts and upholding the provisions. Chief Justice Roberts ruled that the individual mandate was not authorized by the Commerce Clause.15 But the individual mandate was constitutional under the taxing power, and the SRP operated as an exaction pursuant to that power.16
In the aftermath of NFIB, challenges to the ACA continued both in courtrooms17 and in Congress.18 After several failed attempts to repeal the ACA,19 the Tax Cuts and Jobs Act of 201720 (TCJA) became law through Congress’s budget reconciliation process — an expedited vote limited to matters directly related to the federal budget.21 Relevantly, the TCJA zeroed out the SRP, calling into question the ACA’s constitutionality under Congress’s taxing power.22 In February 2018, twenty states, later joined by two individuals, sued the United States as well as relevant federal agencies and officials in the Northern District of Texas.23 They sought both declaratory and injunctive relief.24 Fearing that the Trump Administration, which came into power in part on campaign promises to repeal the ACA,25 would not sufficiently defend the statute, sixteen states and the District of Columbia intervened.26 On December 14, 2018, the district court issued a lengthy opinion deciding three key issues: (1) whether the plaintiffs had standing,27 (2) whether the individual mandate remained constitutional after the TCJA, and (3) if the individual mandate was not constitutional, whether it could be severed from the rest of the ACA.28
The district court ruled that the individual plaintiffs sufficiently met the test for constitutional standing. They had suffered an “injury in fact” that was “fairly traceable” to the defendant’s challenged conduct and was “likely to be redressed by a favorable decision.”29 Specifically, the court cited Lujan v. Defenders of Wildlife30 to support the contention that the individual plaintiffs gained standing by being the “object of the action . . . at issue”31: they were obligated by the individual mandate to obtain health insurance against their will and in a way that required an increased compliance burden.32 On the merits, the district court ruled that the individual mandate was unconstitutional33 and inseverable.34
A Fifth Circuit panel, in an opinion written by Judge Elrod,35 affirmed in part and vacated in part the district court’s judgment.36 First, the panel held that the defendants had standing to bring the appeal.37 Second, it agreed that the individual plaintiffs had standing, but went further, finding that the state plaintiffs also had standing based on the increased financial costs stemming from greater regulatory burdens associated with complying with the individual mandate.38 Third, it agreed with the district court’s finding as to the unconstitutionality of the individual mandate.39 Fourth, and finally, it held that the district court’s parsing of the ACA for the severability analysis was lacking and remanded the case for further engagement on the severability question.40
Judge King dissented on the last three points. She would have held that none of the plaintiffs had standing. As for the individual plaintiffs, their choice to obtain healthcare as opposed to paying zero dollars could not give rise to an injury traceable to the individual mandate.41 And as for the state plaintiffs, their increased regulatory burden was supported only by conclusory statements and insufficiently traceable to the individual mandate rather than other components of the ACA.42 Assuming standing for purposes of argument, Judge King disagreed with the majority on the constitutionality and severability issues.43 The Fifth Circuit then denied a motion for rehearing en banc.44
The Supreme Court reversed and remanded.45 Writing for the Court, Justice Breyer46 dispensed of the case on standing grounds and did not reach the constitutionality and severability issues.47 First, he found the individual plaintiff’s traceability arguments to be deficient.48 Specifically, he noted that the individual mandate has no enforcement mechanism given the zeroed-out SRP.49 Because the government could not legally effectuate the individual mandate, the individual plaintiffs could suffer no injury traceable to the individual mandate, regardless of whether the mandate is constitutional.50 Additionally, Justice Breyer identified a redressability issue: none of the relief sought would remedy the supposed injury because a declaratory judgment on the issue would amount to no more than an advisory opinion and an injunction would be impossible without federal enforcement action to actually enjoin.51 Finally, Justice Breyer declined to consider the respondent’s standing-through-inseverability argument that had been put forth last minute because it was not argued below, at the certiorari stage, in their opening brief, or in their reply.52
As to the state plaintiffs, Justice Breyer doubled down on his position that they were unable to show an injury traceable to an unenforceable provision.53 He concluded the states had failed to show the unenforceable mandate would lead to increased enrollment in state health programs, a necessary link for traceability.54 Rather, he argued, the evidence of increased costs and administrative burdens showed only costs attributable to the individual mandate before Congress zeroed it out.55 Finally, he dismissed the state plaintiffs’ other claims as to financial injury, reasoning that they did not stem from the individual mandate.56
Justice Thomas, in addition to joining the majority opinion, wrote a brief concurrence. Despite his skepticism of the Court’s prior ACA cases, he agreed with the majority’s point that the issue of standing through inseverability was not properly before the Court.57
Justice Alito dissented.58 He began by asserting that the case constituted the “third installment” of the Court’s “epic Affordable Care Act trilogy,” whereby the Court time after time “pulled off an improbable rescue” of the ACA.59 Unlike the majority, he would have held that the state plaintiffs had standing.60 He then proceeded to recount case after case61 wherein the Court was “selectively generous” when it came to state standing.62 To him, it was dubious that none of the plaintiffs had suffered traceable harm given the “many burdensome obligations” the ACA imposes on states.63 Further, he argued the majority had “patent[ly] distort[ed]” the traceability prong in holding that traceability requires government conduct to be “‘fairly traceable’ to enforcement of the ‘allegedly unlawful’ provision” at issue, rather than viewing traceability as requiring “injury fairly traceable to the defendant’s allegedly unlawful conduct.”64 Under his formulation, all plaintiffs must do to obtain standing is to have an injury traceable to government conduct that they allege to be unlawful — potentially through a nexus between the allegedly unlawful conduct and the provision causing them injury.65 A requirement that plaintiffs demonstrate the conduct was actually unlawful would convert the issue to a merits issue.66 Under this theory, he would have ruled that the state plaintiffs had standing67 and held that the individual mandate was unconstitutional68 and inseverable.69
On its face, California v. Texas seems rather narrow: neither individual nor state plaintiffs have Article III standing to challenge an unenforceable law that, by definition, does them no harm. But, noting the broader context, including recent trends in the Court’s jurisprudence, the implications for state standing may be more complex. On one hand, there is good reason for caution in reading any major doctrinal implications into such a politically charged case. On the other hand, it seems notable that one of the few exceptions to the recent trend of narrowed standing, Massachusetts v. EPA’s “special solicitude” doctrine, was not discussed. Instead, it was only cited in passing in a dissent. Furthermore, this arguably relevant precedent seems to have been ignored by all involved — the Court, lower courts, and the parties themselves. Considering this context, California v. Texas may constitute further evidence that “special solicitude” doctrine has been functionally overruled. What looks like a cabined opinion may have actually introduced more confusion into a doctrine already fraught with ambiguity.
At first blush, Article III standing seems doctrinally straightforward. “[A] plaintiff must show: (1) ‘an injury in fact’; (2) that this injury ‘is fairly traceable to the challenged conduct of the defendant’; and (3) that the injury ‘is likely to be redressed by a favorable judicial decision.’”70 But the application of the doctrine is not so simple. As Professor Richard Fallon notes: “Recent years have witnessed the accelerated fragmentation of standing into a multitude of varied, complexly related subdoctrines. Scarcely a Term goes by without the Supreme Court deciding one or more high-profile standing cases . . . [that] have done little to enhance clarity in this contentious corner of constitutional law.”71 Consider October Term 2020. In addition to California v. Texas, the Court decided five other standing cases: Trump v. New York,72 Carney v. Adams,73 Texas v. Pennsylvania,74 Uzuegbunam v. Preczewski,75 and TransUnion LLC v. Ramirez.76 Plaintiffs consistently lost, except in Uzuegbunam. And, while Uzuegbunam constituted a win, commentators have suggested that its impact may be limited to a narrow set of “purely constitutional cases based on federal question jurisdiction.”77 Therefore, not only is standing doctrine lacking in clarity, but also modern standing doctrine78 seems to have been generally narrowed.
An exception to this trend was the Court’s ruling in Massachusetts v. EPA. A high-water mark for state standing, the case introduced the doctrine of “special solicitude,”79 whereby states “merit special treatment” in standing inquiries.80 Yet, special solicitude has been plagued by ambiguity from the beginning.81 Despite the fact that the doctrine has never been formally overruled, the lack of clarity has allowed lower courts to, at best, adopt varying approaches and, at worst, “move away” from relaxed state standing inquires.82
The academic response to Massachusetts v. EPA has been similarly muddled. Some scholars have proposed that the case could be read broadly, as standing for the proposition that all states in all circumstances should face a lower bar when alleging financial injury.83 Others have argued for a narrower reading, suggesting that “special solicitude” should apply only in certain types of cases, ranging from when states (1) sue the federal government in a way that implicates a “structure of federalism and the unique political accountability of state officials”;84 (2) seek to defend sovereign or quasi-sovereign interests;85 (3) seek to defend state law, but not when challenging how “the federal executive enforces federal law”;86 or (4) sue “in a uniquely public capacity.”87
Amidst this muddled doctrine, a broader reading of Massachusetts v. EPA remains quite plausible. One could, in good faith, read the case as lowering the bar for states establishing traceability.88 Or, even more broadly, one could argue that Massachusetts v. EPA lowered the bar across all three prongs of the standing inquiry.89 Moreover, despite the limitations read into the opinion or normatively advocated for by academics, on the opinion’s face, there is no explicit limitation on when states merit “special solicitude.” Nor is the theoretical justification for special solicitude clear enough to constitute an express or implied limitation on the doctrine.
However, despite Massachusetts v. EPA’s relevance to the case at hand, not one Justice mentioned “special solicitude” in California v. Texas. The fact that the Court did not even attempt to engage with the doctrine and the broader jurisprudential landscape of state standing — if only to distinguish it — begs the question: Is the doctrine of special solicitude still functionally good law?
In recent years, some have been critical of the Court’s trend of not formally overruling controlling precedent.90 In some circumstances, this trend has been described as “stealth overruling” — whereby the Court “issu[es] decisions that distinguish or ignore precedents that would be expected to control the outcome of a case without acknowledging that the decision functionally overrules the prior decisions.”91 Critics argue that this analytical move creates doctrinal confusion, encourages “[d]efiance and [d]efection,”92 and makes it “more difficult to challenge [the issues] head-on.”93
Yet, what may be notable about the Court’s approach to special solicitude in California v. Texas is what distinguishes its approach from paradigmatic instances of stealth overruling.94 Classic stealth overruling generally involves (1) concurrences or dissents that are “unusually irate precisely because their colleagues would not come clean” and (2) a Court that actually overrules precedent by “drawing distinctions that are unfaithful to the prior precedent’s rationale; or . . . reducing a precedent to essentially nothing.” 95 What is remarkable about California v. Texas is that no one — not the parties, not the lower courts, nor the majority or the dissent at the Supreme Court — seemed to believe that the Court’s special solicitude holding in Massachusetts v. EPA controlled, or was even germane enough to be worth distinguishing. Other than Justice Alito’s brief gestures at Massachusetts v. EPA in his dissent — without explicitly citing “special solicitude”96 — none of the opinions invoked the doctrine and the Fifth Circuit expressly sidestepped the issue.97 Even if an accurate reading of Massachusetts v. EPA is a narrower one, only applying in some subset of cases, that limitation on the doctrine is unclear. If special solicitude is still good law, one would have at least expected the state plaintiffs to raise it in their briefing or for the Court to either apply the doctrine or distinguish the case before it.98 Yet neither the parties nor the Court did.
There are additional reasons to think that special solicitude no longer fits within the Court’s jurisprudence. At least twice, the Court has “failed to clarify the doctrine,”99 and it has “denied certiorari in two cases that would have presented an opportunity to revisit special solicitude.”100 And when the Court actually “granted certiorari on the explicit question of state standing,” the Justices fractured “in a 4–4 split that highlighted a direct challenge to the ‘durability’ of special solicitude.”101
If special solicitude doctrine has been functionally overruled, many of the criticisms lodged against the practice of stealth overruling — the creation of doctrinal confusion, incentives for “[d]efiance and [d]efection,”102 and roadblocks to litigants being able to “challenge [the issue] head-on”103 — similarly apply. Moreover, the fact that standing is nonwaivable under Article III exacerbates the obstacles for litigants and lower courts alike.104 Even if the parties fail to raise the issue, amici could raise the issue, as was the case here.105 Or, strictly speaking, courts are obligated to raise and consider the issue in every case.106 If the Supreme Court has functionally, but not expressly, overruled the special solicitude doctrine, lower courts are left in quite a bind. The Court has made clear that lower courts should not rule based on how they predict the Court would rule but should rather base their decisionmaking on formalist doctrine.107 Yet, if special solicitude is functionally overruled but relied upon by lower courts, they could be introducing a fundamental error into cases involving state standing.
Viewed in the context of wider standing doctrine, California v. Texas therefore seems to deepen doctrinal uncertainties. In a world where the Court has functionally overruled special solicitude, lower courts must choose between a rock — impermissibly deciding cases based on the assumption that the Court has implicitly overruled the doctrine — and a hard place — relying on a doctrine that may have been overruled and potentially introducing a defect into cases involving state plaintiffs relying on special solicitude. And yet, despite this dilemma, it seems likely this ambiguity is not one the Court has an appetite for clarifying.