California v. Texas

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 2
Pages 659–715
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 17, 2021
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

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OCTOBER
TERM, 2020
659
Syllabus
CALIFORNIA et al. v. TEXAS et al.
certiorari
to the united states court of appeals for
the fth circuit
No. 19–840. Argued November 10, 2020—Decided June 17, 2021*
The Patient Protection and Affordable Care Act as enacted in 2010 re-
quired most Americans to obtain minimum essential health insurance
coverage and imposed a monetary penalty upon most individuals who
failed to do so. Amendments to the Act in 2017 effectively nullifed the
penalty by setting its amount to $0. Subsequently, Texas (along with
over a dozen States and two individuals) brought suit against federal
offcials, claiming that without the penalty the Act's minimum essential
coverage provision, codifed at 26 U. S. C. § 5000A(a), is unconstitutional.
They sought a declaration that the provision is unconstitutional, a fnd-
ing that the rest of the Act is not severable from § 5000A(a), and an
injunction against enforcement of the rest of the Act. The District
Court determined that the individual plaintiffs had standing. It also
found § 5000A(a) both unconstitutional and not severable from the rest
of the Act. The Fifth Circuit agreed as to the existence of standing
and the unconstitutionality of § 5000A(a), but concluded that the District
Court's severability analysis provided insuffcient justifcation to strike
down the entire Act. Petitioner California and other States intervened
to defend the Act's constitutionality and to seek further review.
Held: Plaintiffs do not have standing to challenge § 5000A(a)'s minimum
essential coverage provision because they have not shown a past or fu-
ture injury fairly traceable to defendants' conduct enforcing the specifc
statutory provision they attack as unconstitutional. Pp. 668–680.
(a) The Constitution gives federal courts the power to adjudicate only
genuine “Cases” and “Controversies.” Art. III, § 2. To have standing,
a plaintiff must “allege personal injury fairly traceable to the defend-
ant's allegedly unlawful conduct and likely to be redressed by the re-
quested relief.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342.
No plaintiff has shown such an injury “fairly traceable” to the “allegedly
unlawful conduct” challenged here. Pp. 668–669.
(b) The two individual plaintiffs claim a particularized individual
harm in the form of past and future payments necessary to carry the
minimum essential coverage that § 5000A(a) requires. Assuming this
*Together with No. 19–1019, Texas et al. v. California et al., also on
certiorari to the same court.

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660 CALIFORNIA v. TEXAS
Syllabus
pocketbook injury satisfes the injury element of Article III standing, it
is
not “fairly traceable” to any “allegedly unlawful conduct” of which the
plaintiffs complain, Allen v. Wright, 468 U. S. 737, 751. Without a pen-
alty for noncompliance, § 5000A(a) is unenforceable. The individuals
have not shown that any kind of Government action or conduct has
caused or will cause the injury they attribute to § 5000A(a). The
Court's cases have consistently spoken of the need to assert an injury
that is the result of a statute's actual or threatened enforcement,
whether today or in the future. See, e. g., Babbitt v. Farm Workers,
442 U. S. 289, 298. Here, there is only the statute's textually unenforce-
able language.
Unenforceable statutory language alone is not suffcient to establish
standing, as the redressability requirement makes clear. Whether an
injury is redressable depends on the relationship between “the judicial
relief requested” and the “injury” suffered. Allen, 468 U. S., at 753, n.
19. The only relief sought regarding the minimum essential coverage
provision is declaratory relief, namely, a judicial statement that the pro-
vision challenged is unconstitutional. But just like suits for every other
type of remedy, declaratory-judgment actions must satisfy Article III's
case-or-controversy requirement. See MedImmune, Inc. v. Genentech,
Inc., 549 U. S. 118, 126–127. Article III standing requires identifcation
of a remedy that will redress the individual plaintiffs' injuries. Id.,
at 127. No such remedy exists here. To fnd standing to attack an
unenforceable statutory provision would allow a federal court to issue
what would amount to an advisory opinion without the possibility of an
Article III remedy. Article III guards against federal courts assuming
this kind of jurisdiction. See Carney v. Adams, 592 U. S. 53, 58–59.
The Court also declines to consider federal respondents' novel alterna-
tive theory of standing frst raised in their merits brief on behalf the
individuals, as well as the dissent's novel theory on behalf of the States,
neither of which was directly argued by plaintiffs below nor presented
at the certiorari stage. Pp. 669–674.
(c) Texas and the other state plaintiffs have similarly failed to show
that the pocketbook injuries they allege are traceable to the Govern-
ment's allegedly unlawful conduct. DaimlerChrysler Corp. v. Cuno,
547 U. S., at 342. They allege two forms of injury: one indirect, one
direct. Pp. 674–680.
(1) The state plaintiffs allege indirect injury in the form of in-
creased costs to run state-operated medical insurance programs. They
say the minimum essential coverage provision has caused more state
residents to enroll in the programs. The States, like the individual
plaintiffs, have failed to show how that alleged harm is traceable to the
Government's actual or possible action in enforcing § 5000A(a), so they
lack Article III standing as a matter of law. But the States have also

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Syllabus
not shown that the challenged minimum essential coverage provision,
w
ithout any prospect of penalty, will injure them by leading more indi-
viduals to enroll in these programs. Where a standing theory rests on
speculation about the decision of an independent third party (here an
individual's decision to enroll in a program like Medicaid), the plaintiff
must show at the least “that third parties will likely react in predictable
ways.” Department of Commerce v. New York, 588 U. S. –––, –––.
Neither logic nor evidence suggests that an unenforceable mandate will
cause state residents to enroll in valuable benefts programs that they
would otherwise forgo. It would require far stronger evidence than
the States have offered here to support their counterintuitive theory of
standing, which rests on a “highly attenuated chain of possibilities.”
Clapper v. Amnesty Int'l USA, 568 U. S. 398, 410–411. Pp. 674–678.
(2) The state plaintiffs also claim a direct injury resulting from a
variety of increased administrative and related expenses allegedly re-
quired by § 5000A(a)'s minimum essential coverage provision. But
other provisions of the Act, not the minimum essential coverage provi-
sion, impose these requirements. These provisions are enforced with-
out reference to § 5000A(a). See 26 U. S. C. §§ 6055, 6056. A conclusion
that the minimum essential coverage requirement is unconstitutional
would not show that enforcement of these other provisions violates the
Constitution. The other asserted pocketbook injuries related to the
Act are similarly the result of enforcement of provisions of the Act that
operate independently of § 5000A(a). No one claims these other provi-
sions violate the Constitution. The Government's conduct in question
is therefore not “fairly traceable” to enforcement of the “allegedly un-
lawful” provision of which the plaintiffs complain—§ 5000A(a). Allen,
468 U. S., at 751. Pp. 678–680.
945 F. 3d 355, vacated and remanded.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Thomas, Sotomayor, Kagan, Kavanaugh, and Barrett, JJ., joined.
Thomas, J., fled a concurring opinion, post, p. 680. Alito, J., fled a dis-
senting opinion, in which Gorsuch, J., joined, post, p. 685.
Michael J. Mongan, Solicitor General of California, argued
the cause for California et al. in both cases. With him on
the briefs were Xavier Becerra, Attorney General of Califor-
nia, Samuel P. Siegel, Deputy Solicitor General, Kathleen
Boergers, Supervising Deputy Attorney General, Nimrod
Pitsker Elias and Neli N. Palma, Deputy Attorneys Gen-
eral, and Amari L. Hammonds, Associate Deputy Solicitor
General, and by the Attorneys General and other offcials

662 CALIFORNIA v. TEXAS
Counsel
for their respective jurisdictions as follows: Philip J. Weiser,
A
ttorney General of Colorado, Eric R. Olson, Solicitor Gen-
eral, William Tong, Attorney General of Connecticut, Joseph
Rubin, Assistant Deputy Attorney General, Kathleen Jen-
nings, Attorney General of Delaware, Christian Douglas
Wright, Ilona Kirshon, Deputy State Solicitor, Jessica M.
Willey, Deputy Attorney General, Karl A. Racine, Attorney
General of the District of Columbia, Loren L. Alikhan, Solic-
itor General, Caroline S. Van Zile, Principal Deputy Solici-
tor General, Clare E. Connors, Attorney General of Hawaii,
Robert T. Nakatsuji, First Deputy Solicitor General, Kwame
Raoul, Attorney General of Illinois, Jane Elinor Notz, Solici-
tor General, Matthew V. Chimienti, Assistant Attorney Gen-
eral, Thomas J. Miller, Attorney General of Iowa, Nathan
Blake, Deputy Attorney General, Maura Healey, Attorney
General of Massachusetts, Dana Nessel, Attorney General
of Michigan, Fadwa A. Hammoud, Solicitor General, Keith
Ellison, Attorney General of Minnesota, Scott Ikeda, Assist-
ant Attorney General, Aaron D. Ford, Attorney General of
Nevada, Heidi Parry Stern, Solicitor General, Gurbir S.
Grewal, Attorney General of New Jersey, Matthew J. Berns,
Assistant Attorney General, Marie Soueid, Deputy Attorney
General, Letitia James, Attorney General of New York, Bar-
bara D. Underwood, Solicitor General, Steven C. Wu, Deputy
Solicitor General, Elizabeth Chesler, Assistant Attorney
General, Joshua H. Stein, Attorney General of North Caro-
lina, Ryan Y. Park, Solicitor General, Ellen F. Rosenblum,
Attorney General of Oregon, Benjamin Gutman, Solicitor
General, Peter F. Neronha, Attorney General of Rhode Is-
land, Michael W. Field and Maria R. Lenz, Assistant Attor-
neys General, Thomas J. Donovan, Jr., Attorney General of
Vermont, Benjamin D. Battles, Solicitor General, Mark R.
Herring, Attorney General of Virginia, Toby J. Heytens, So-
licitor General, Robert W. Ferguson, Attorney General of
Washington, Jeffrey T. Sprung, Assistant Attorney General,
La Tasha Buckner, and S. Travis Mayo.
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Counsel
Donald B. Verrilli, Jr., argued the cause for the U. S.
H
ouse of Representatives in both cases. With him on the
briefs were Douglas N. Letter, Adam A. Grogg, Elaine J.
Goldenberg, Ginger D. Anders, Jonathan S. Meltzer, Rachel
G. Miller-Ziegler, Elizabeth B. Wydra, Brianne J. Gorod,
and Ashwin P. Phatak.
Kyle D. Hawkins, Solicitor General of Texas, argued the
cause for the state respondents in both cases. With him on
the briefs were Ken Paxton, Attorney General of Texas, Jef-
frey C. Mateer, First Assistant Attorney General, Ryan L.
Bangert, Deputy First Assistant Attorney General, Matthew
H. Frederick, Deputy Solicitor General, and Lanora C. Pettit
and Judd E. Stone II, Assistant Solicitors General, and by
the Attorneys General for their respective States as follows:
Steve Marshall of Alabama, Mark Brnovich of Arizona, Les-
lie Rutledge of Arkansas, Ashley Moody of Florida, Christo-
pher M. Carr of Georgia, Curtis T. Hill, Jr., of Indiana,
Derek Schmidt of Kansas, Jeff Landry of Louisiana, Lynn
Fitch of Mississippi, Eric Schmitt of Missouri, Doug Pe-
terson of Nebraska, Wayne Stenehjem of North Dakota,
Alan Wilson of South Carolina, Jason R. Ravnsborg of
South Dakota, Herbert H. Slatery III of Tennessee, Sean
Reyes of Utah, and Patrick Morrisey of West Virginia.
Robert Henneke, Tyler R. Green, and Bryan Weir fled briefs
in both cases for the private respondents.
Acting Solicitor General Wall argued the cause for the
federal respondents in both cases. With him on the briefs
were Solicitor General Francisco, Assistant Attorney Gen-
eral Hunt, Nicole Frazer Reaves, and August E. Flentje.*
*Briefs of amici curiae urging reversal in both cases were fled for
AARP et al. by Maame Gyamf, William Alvarado Rivera, Kelly Bagby,
and Alice Bers; for the Alliance of Community Health Plans et al. by Allen
Xavier Baker and Daniel W. Wol ff; for the Blue Cross Blue Shield Associ-
ation by K. Lee Blalack II, Anton Metlitsky, and Shane A. Hunt; for First
Focus on Children et al. by Stuart F. Delery and Andrew J. Wilhelm; for
HCA Healthcare, Inc., by David M. Zionts; for Health Care Policy Schol-
ars by Brian H. Fletcher, Jeffrey L. Fisher, and Pamela S. Karlan; for
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664 CALIFORNIA v. TEXAS
Opinion of the Court
Justice Breyer delivered the opinion of the Court.
As
originally enacted in 2010, the Patient Protection and
Affordable Care Act required most Americans to obtain min-
the Lambda Legal Defense and Education Fund, Inc., et al. by Kirsten V.
Mayer, Douglas Hallward-Driemeier, Omar Gonzalez-Pagan, and Greg-
ory R. Nevins; for the National Association of Community Health Centers
by Edward T. Waters and Phillip A. Escoriaza; for National Hospital
Associations by Sean Marotta, Kirti Datla, Lawrence Hughes, and Frank
R. Trinity; for the National Women's Law Center et al. by Jaime A. San-
tos, Sarah K. Frederick, Fatima Goss Graves, Gretchen Borchelt, Sunu
Chandy, and Michelle Banker; for Public Citizen by Scott L. Nelson, Alli-
son M. Zieve, and Nandan M. Joshi; for the Service Employees Interna-
tional Union et al. by Nicole G. Berner, Renee M. Gerni, and Claire Pres-
tel; for the Small Business Majority Foundation by Hyland Hunt and
Ruthanne M. Deutsch; for Samuel L. Bray et al. by Raff Melkonian; for
Walter Dellinger et al. by Caitlin Halligan and Ryan W. Allison; for Jer-
emy C. Doerre by Mr. Doerre, pro se; and for 47 Members of the U. S.
Senate by Elizabeth B. Prelogar.
Briefs of amici curiae urging reversal in No. 19–840 were fled for the
State of Maryland et al. by Brian E. Frosh, Attorney General of Maryland,
Steven M. Sullivan, Solicitor General, and Sarah W. Rice and Jeffrey
P. Dunlap, Assistant Attorneys General, and by the Attorneys General
and other offcials for their respective States as follows: Aaron M. Frey,
Attorney General of Maine, Gordon J. MacDonald, Attorney General of
New Hampshire, Daniel E. Will, Solicitor General, Laura E. B. Lombardi,
Senior Assistant Attorney General, Hector Balderas, Attorney General of
New Mexico, Tania Maestas, Chief Deputy Attorney General, Josh Sha-
piro, Attorney General of Pennsylvania, and Josh Kaul, Attorney General
of Wisconsin; for the American Association of People With Disabilities
et al. by Mark P. Johnson, Bruce Merlin Fried, Charles A. Luband, Eliza-
beth B. McCallum, Jennifer Mathis, and David D. Cole; for the American
Cancer Society et al. by John Longstreth, Mary Rouvelas, and Adrian
Mollo; for the American Medical Association et al. by Leonard A. Nelson
and Kyle A. Palazzolo; for Bipartisan Economic Scholars by Matthew S.
Hellman; for the Catholic Health Association of the United States by
Christopher J. Wright and Stephen W. Miller; for Michael C. Dorf et al.
by Rakesh N. Kilaru, Martin S. Lederman, and Michael Dorf, pro se; for
36 State Hospital Associations by William B. Schultz and Margaret M.
Dotzel; and for 44 Counties et al. by James R. Williams, Greta S. Hansen,
Douglas M. Press, Lorraine Van Kirk, Mark A. Flessner, Benna Ruth
So l o mo n, Jessi ca M. Sch ell e r, Tren t A. M cCain, Ro n a l d C. Lew is,

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Opinion of the Court
imum essential health insurance coverage. The Act also im-
posed
a monetary penalty, scaled according to income, upon
individuals who failed to do so. In 2017, Congress effec-
tively nullifed the penalty by setting its amount at $0. See
Tax Cuts and Jobs Act of 2017, Pub. L. 115–97, § 11081, 131
Stat. 2092 (codifed in 26 U. S. C. § 5000A(c)).
Suzanne Chauvin, Collyn Peddie, Gary W. Kuc, Donald E. Morgan, Shaw
R. Friedman, Michael N. Feuer, Mary C. Wickham, Michael P. May, Brig
Smith, Leslie J. Girard, George F. Schaefer, Dennis J. Herrera, Peter S.
Holmes, John Marshall Jones, and Michael Jenkins.
Briefs of amici curiae urging affrmance in both cases were fled for the
Center for Constitutional Jurisprudence by John C. Eastman and An-
thony T. Caso; for the Foundation for Moral Law by John A. Eidsmoe;
and for the Landmark Legal Foundation by Matthew C. Forys, Michael J.
O'Neill, and Richard P. Hutchison.
Briefs of amici curiae were fled in both cases for the State of Ohio
et al. by Dave Yost, Attorney General of Ohio, Benjamin M. Flowers,
Solicitor General, Michael J. Hendershot, Chief Deputy Solicitor General,
Timothy C. Fox, Attorney General of Montana, and Jonathan Bennion,
Chief Deputy Attorney General; for the American Center for Law and
Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Jordan A.
Sekulow, and Laura B. Hernandez; for America's Health Insurance Plans
by Pratik A. Shah, Z. W. Julius Chen, Julie Simon Miller, and Thomas
M. Palumbo; for the Association for Accessible Medicines by William M.
Jay, Benjamin Hayes, and Jeffrey K. Francer; for the Association of
American Physicians & Surgeons by Andrew L. Schlafy and David P. Fel-
sher; for Families USA et al. by Allon Kedem and Robert N. Weiner; for
the National Health Law Program et al. by Jane Perkins; for the Patient-
Centered Outcomes Research Institute by Virginia A. Seitz and Peter D.
Keisler; for Public Health Experts et al. by H. Guy Collier, Michael B.
Kimberly, and Matthew A. Waring; for Tribes et al. by Geoffrey D. Strom-
mer, Caroline P. Mayhew, Elliott A. Milhollin, William R. Norman, Paul
Spruhan, John T. Kitchens, Laura Berglan, Jim Shore, Lloyd B. Miller,
and Howard G. Arnett; and for Jonathan H. Adler et al. by Joseph R.
Palmore and James R. Sigel.
Briefs of amici curiae were fled in No. 19–840 for the American Tho-
racic Society by Hope Babcock; for the Cato Institute by Ilya Shapiro and
Josh Blackman; for the Washington and Lee University School of Law
Black Lung Clinic by Timothy C. MacDonnell; and for David C. Boyle, by
David Boyle, pro se.

666 CALIFORNIA v. TEXAS
Opinion of the Court
Texas and 17 other States brought this lawsuit against the
U
nited States and federal offcials. They were later joined
by two individuals (Neill Hurley and John Nantz). The
plaintiffs claim that without the penalty the Act's minimum
essential coverage requirement is unconstitutional. Spe-
cifcally, they say neither the Commerce Clause nor the Tax
Clause (nor any other enumerated power) grants Congress
the power to enact it. See U. S. Const., Art. I, § 8. They
also argue that the minimum essential coverage requirement
is not severable from the rest of the Act. Hence, they be-
lieve the Act as a whole is invalid. We do not reach these
questions of the Act's validity, however, for Texas and the
other plaintiffs in this suit lack the standing necessary to
raise them.
I
A
We begin by describing the provision of the Act that the
plaintiffs attack as unconstitutional. The Act says in rele-
vant part:
“(a) Requirement to maintain minimum essential
coverage
“An applicable individual shall . . . ensure that the in-
dividual, and any dependent . . . who is an applicable
individual, is covered under minimum essential cover-
age . . . .
“(b) Shared responsibility payment
“(1) In general
“If a taxpayer who is an applicable individual . . . fails
to meet the requirement of subsection (a) . . . there is
hereby imposed on the taxpayer a penalty . . . in the
amount determined under subsection (c).
“(2) Inclusion with return
“Any penalty imposed by this section . . . shall be in-
cluded with a taxpayer's return . . . for the taxable
year . . . .” 26 U. S. C. § 5000A.
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The Act defnes “applicable individual” to include all tax-
payers
who do not fall within a set of exemptions. See
§ 5000A(d). As frst enacted, the Act set forth a schedule
of penalties applicable to those who failed to meet its mini-
mum essential coverage requirement. See § 5000A(c) (2012).
The penalties varied with a taxpayer's income and exempted,
among others, persons whose annual incomes fell below the
federal income tax fling threshold. See § 5000A(e) (2012).
And the Act required that those subject to a penalty include
it with their annual tax return. See § 5000A(b)(2) (2012).
In 2017, Congress amended the Act by setting the amount of
the penalty in each category in § 5000A(c) to “$0,” effective
beginning tax year 2019. See § 11081, 131 Stat. 2092.
Before Congress amended the Act, the Internal Revenue
Service (IRS) had implemented § 5000A(b) by requiring indi-
vidual taxpayers to report with their federal income tax re-
turn whether they carried minimum essential coverage (or
could claim an exemption). After Congress amended the
Act, the IRS made clear that the statute no longer requires
taxpayers to report whether they do, or do not, maintain
that coverage. See IRS, Publication 5187, Tax Year 2019,
p. 5 (“Form 1040 . . . will not have the `full-year health care
coverage or exempt' box and Form 8965, Health Coverage
Exemptions, will no longer be used as the shared responsibil-
ity payment is reduced to zero”).
B
In 2018, Texas and more than a dozen other States (state
plaintiffs) brought this lawsuit against the Secretary of
Health and Human Services and the Commissioner of Inter-
nal Revenue, among others. App. 12, 34. They sought a
declaration that § 5000A(a)'s minimum essential coverage
provision is unconstitutional, a fnding that the rest of the
Act is not severable from § 5000A(a), and an injunction
against the rest of the Act's enforcement. Id., at 61–63.
Hurley and Nantz (individual plaintiffs) soon joined them.

668 CALIFORNIA v. TEXAS
Opinion of the Court
Although nominally defendants to the suit, the United States
took
the side of the plaintiffs. See Brief for Federal Re-
spondents 12–13 (arguing that the Act is unconstitutional).
Therefore California, along with 15 other States and the Dis-
trict of Columbia (state intervenors), intervened in order to
defend the Act's constitutionality, see App. 12–13, as did the
U. S. House of Representatives at the appellate stage, see
id., at 3.
After taking evidence, the District Court found that the
individual plaintiffs had standing to challenge the constitu-
ti ona lity of the minimum essentia l coverage prov isi on,
§ 5000A(a). See Texas v. United States, 340 F. Supp. 3d 579,
593–595 (ND Tex. 2018). The court held that the minimum
essential coverage provision is unconstitutional and not sev-
erable from the rest of the Act. It granted relief in the form
of a declaration stating just that. Id., at 595–619. It then
stayed its judgment pending appeal. See Texas v. United
States, 352 F. Supp. 3d 665 (ND Tex. 2018).
On appeal, a panel majority agreed with the District Court
that the plaintiffs had standing and that the minimum essen-
tial coverage provision was unconstitutional. See Texas v.
United States, 945 F. 3d 355, 377–393 (CA5 2019). It found
that the District Court's severability analysis, however, was
“incomplete.” Id., at 400. It wrote that “[m]ore [wa]s
needed to justify” the District Court's order striking down
the entire Act. Id., at 401. And it remanded the case for
further proceedings. Id., at 402–403.
The state intervenors, defending the Act, asked us to re-
view the lower court decision. We granted their petition
for certiorari.
II
We proceed no further than standing. The Constitution
gives federal courts the power to adjudicate only genuine
“Cases” and “Controversies.” Art. III, § 2. That power in-
cludes the requirement that litigants have standing. A
plaintiff has standing only if he can “allege personal injury
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fairly traceable to the defendant's allegedly unlawful conduct
and
likely to be redressed by the requested relief.” Daim-
lerChrysler Corp. v. Cuno, 547 U. S. 332, 342 (2006) (internal
quotation marks omitted); see also Lujan v. Defenders of
Wildlife, 504 U. S. 555, 560–561 (1992). Neither the individ-
ual nor the state plaintiffs have shown that the injury they
will suffer or have suffered is “fairly traceable” to the “alleg-
edly unlawful conduct” of which they complain.
A
We begin with the two individual plaintiffs. They claim
a particularized individual harm in the form of payments
they have made and will make each month to carry the mini-
mum essential coverage that § 5000A(a) requires. The indi-
vidual plaintiffs point to the statutory language, which, they
say, commands them to buy health insurance. Brief for
Respondent/Cross-Petitioner Hurley et al. 19–20. But even
if we assume that this pocketbook injury satisfes the injury
element of Article III standing, see Whitmore v. Arkansas,
495 U. S. 149, 155 (1990), the plaintiffs nevertheless fail to
satisfy the traceability requirement.
Their problem lies in the fact that the statutory provision,
while it tells them to obtain that coverage, has no means of
enforcement. With the penalty zeroed out, the IRS can no
longer seek a penalty from those who fail to comply. See 26
U. S. C. § 5000A(g) (setting out IRS enforcement only of the
taxpayer's failure to pay the penalty, not of the taxpayer's
failure to maintain minimum essential coverage). Because
of this, there is no possible Government action that is caus-
ally connected to the plaintiffs' injury—the costs of purchas-
ing health insurance. Or to put the matter conversely, that
injury is not “fairly traceable” to any “allegedly unlawful
conduct” of which the plaintiffs complain. Allen v. Wright,
468 U. S. 737, 751 (1984). They have not pointed to any way
in which the defendants, the Commissioner of Internal Reve-
nue and the Secretary of Health and Human Services, will
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670 CALIFORNIA v. TEXAS
Opinion of the Court
act to enforce § 5000A(a). They have not shown how any
other
federal employees could do so either. In a word, they
have not shown that any kind of Government action or con-
duct has caused or will cause the injury they attribute to
§ 5000A(a).
The plaintiffs point to cases concerning the Act that they
believe support their standing. But all of those cases con-
cerned the Act when the provision was indisputably enforce-
able, because the penalty provision was still in effect. See
Brief for Respondent/Cross-Petitioner Hurley et al. 22 (citing
Florida ex rel. Atty. Gen. v. United States Dept. of Health
and Human Servs., 648 F. 3d 1235, 1243 (CA11 2011);
Thomas More Law Center v. Obama, 651 F. 3d 529, 535 (CA6
2011); Virginia ex rel. Cuccinelli v. Sebelius, 656 F. 3d 253,
266–268 (CA4 2011)); cf. National Federation of Independent
Business v. Sebelius, 567 U. S. 519 (2012) (assessing the con-
stitutionality of the Act with the penalty provision). These
cases therefore tell us nothing about how the statute is en-
forced, or could be enforced, today.
It is consequently not surprising that the plaintiffs cannot
point to cases that support them. To the contrary, our cases
have consistently spoken of the need to assert an injury that
is the result of a statute's actual or threatened enforcement,
whether today or in the future. See, e. g., Babbitt v. Farm
Workers, 442 U. S. 289, 298 (1979) (“A plaintiff who chal-
lenges a statute must demonstrate a realistic danger of sus-
taining a direct injury as a result of the statute's operation
or enforcement” (emphasis added)); Virginia v. American
Booksellers Assn., Inc., 484 U. S. 383, 392 (1988) (requiring
“threatened or actual injury resulting from the putatively
illegal action” (internal quotation marks omitted)). In the
absence of contemporary enforcement, we have said that a
plaintiff claiming standing must show that the likelihood of
future enforcement is “substantial.” Susan B. Anthony
List v. Driehaus, 573 U. S. 149, 164 (2014); see also Massa-
chusetts v. Mellon, 262 U. S. 447, 488 (1923) (“The party who
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invokes the power [of Article III courts] must be able to
show
not only that the statute is invalid but that he has sus-
tained or is immediately in danger of sustaining some direct
injury as the result of its enforcement”).
The plaintiffs point out that these and other precedents
concern injuries anticipated in the future from a statute's
later enforcement. Here, the plaintiffs say, they have al-
ready suffered a pocketbook injury, for they have already
bought health insurance. They also emphasize the Court's
statement in Lujan that, when a plaintiff is the “ `object' ” of
a challenged Government action, “ `there is ordinarily little
question that the action . . . has caused him injury, and that
a judgment preventing . . . the action will redress it.' ”
Brief for Respondent/Cross-Petitioner Hurley et al. 18 (quot-
ing Lujan, 504 U. S., at 561–562). But critically, unlike
Lujan, here no unlawful Government action “fairly trace-
able” to § 5000A(a) caused the plaintiffs' pocketbook harm.
Here, there is no action—actual or threatened—whatsoever.
There is only the statute's textually unenforceable language.
To consider the matter from the point of view of another
standing requirement, namely, redressability, makes clear
that the statutory language alone is not suffcient. To deter-
mine whether an injury is redressable, a court will consider
the relationship between “the judicial relief requested” and
the “injury” suffered. Allen, 468 U. S., at 753, n. 19. The
plaintiffs here sought injunctive relief and a declaratory
judgment. The injunctive relief, however, concerned the
Act's other provisions that they say are inseverable from the
minimum essential coverage requirement. The relief they
sought in respect to the only provision they attack as uncon-
stitutional—the minimum essential coverage provision—is
declaratory relief, namely, a judicial statement that the pro-
vision they attacked is unconstitutional. See App. 61–63
(“Count One: Declaratory Judgment That the Individual
Mandate of the ACA Exceeds Congress's Article I Constitu-
tional Enumerated Powers” (boldface deleted)); 340 F. Supp.
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3d, at 619 (granting declaratory judgment on count I as to
§
5000A(a)); 352 F. Supp. 3d, at 690 (severing and entering
partial fnal judgment on count I).
Remedies, however, ordinarily “operate with respect to
specifc parties.” Murphy v. National Collegiate Athletic
Assn., 584 U. S. 453, 489 (2018) (Thomas, J., concurring) (in-
ternal quotation marks omitted). In the absence of any spe-
cifc party, they do not simply operate “on legal rules in the
abstract.” Ibid. (internal quotation marks omitted); see
also Mellon, 262 U. S., at 488 (“If a case for preventive relief
be presented the court enjoins, in effect, not the execution
of the statute, but the acts of the offcial, the statute
notwithstanding ”).
This suit makes clear why that is so. The Declaratory
Judgment Act, 28 U. S. C. § 2201, alone does not provide a
court with jurisdiction. See Skelly Oil Co. v. Phillips Pe-
troleum Co., 339 U. S. 667, 671–672 (1950); R. Fallon, J. Man-
ning, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Fed-
eral Courts and the Federal System 841 (7th ed. 2015) (that
Act does “not confe[r] jurisdiction over declaratory actions
when the underlying dispute could not otherwise have been
heard in federal court”); see also Poe v. Ullman, 367 U. S.
497, 506 (1961) (“[T]he declaratory judgment device does not
. . . permit litigants to invoke the power of this Court to
obtain constitutional rulings in advance of necessity”). In-
stead, just like suits for every other type of remedy, declara-
tory-judgment actions must satisfy Article III's case-or-
controversy requirement. See MedImmune, Inc. v. Genen-
tech, Inc., 549 U. S. 118, 126–127 (2007). At a minimum, this
means that the dispute must “be `real and substantial' and
`admit of specifc relief through a decree of a conclusive char-
acter, as distinguished from an opinion advising what the law
would be upon a hypothetical state of facts.' ” Id., at 127
(alteration omitted). Thus, to satisfy Article III standing,
we must look elsewhere to fnd a remedy that will redress
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What is that relief ? The plaintiffs did not obtain dam-
ages.
Nor, as we just said, did the plaintiffs obtain an in-
junction in respect to the provision they attack as unconsti-
tutional. But, more than that: How could they have sought
any such i n junc ti on? The prov isi on is unenforceable.
There is no one, and nothing, to enjoin. They cannot enjoin
the Secretary of Health and Human Services, because he has
no power to enforce § 5000A(a) against them. And they do
not claim that they might enjoin Congress. In these circum-
stances, injunctive relief could amount to no more than a
declaration that the statutory provision they attack is uncon-
stitutional, i. e., a declaratory judgment. But once again,
that is the very kind of relief that cannot alone supply juris-
diction otherwise absent. See Nashville, C. & St. L. R. Co.
v. Wallace, 288 U. S. 249, 262 (1933) (inquiring whether a suit
for declaratory relief “would be justiciable in this Court if
presented in a suit for injunction”); Medtronic, Inc. v. Mirow-
ski Family Ventures, LLC, 571 U. S. 191, 197 (2014) (noting
that a court looks to “the nature of the threatened action in
the absence of the declaratory judgment suit” to determine
whether jurisdiction exists).
The matter is not simply technical. To fnd standing here
to attack an unenforceable statutory provision would allow a
federal court to issue what would amount to “an advisory
opinion without the possibility of any judicial relief.” Los
Angeles v. Lyons, 461 U. S. 95, 129 (1983) (Marshall, J., dis-
senting); see also Steel Co. v. Citizens for Better Environ-
ment, 523 U. S. 83, 107 (1998) (to have standing, a plaintiff
must seek “an acceptable Article III remedy” that will “re-
dress a cognizable Article III injury”). It would threaten
to grant unelected judges a general authority to conduct
oversight of decisions of the elected branches of Government.
See United States v. Richardson, 418 U. S. 166, 188 (1974)
(Powell, J., concurring). Article III guards against federal
courts assuming this kind of jurisdiction. See Carney v.
Adams, 592 U. S. 53, 58–59 (2020).

674 CALIFORNIA v. TEXAS
Opinion of the Court
Last, the federal respondents raised for the frst time a
novel
alternative theory of standing on behalf of the individ-
ual plaintiffs in their merits brief. (The dissent, alone, puts
forward a similar novel theory on behalf of the state plain-
tiffs.) That theory was not directly argued by the plaintiffs
in the courts below, see 945 F. 3d, at 385–386, and n. 29, and
was nowhere presented at the certiorari stage. We accord-
ingly decline to consider it. Cf. Adarand Constructors, Inc.
v. Mineta, 534 U. S. 103, 109–110 (2001) (per curiam); see
also Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005).
B
Next, we turn to the state plaintiffs. We conclude that
Texas and the other state plaintiffs have similarly failed to
show that they have alleged an “injury fairly traceable to
the defendant's allegedly unlawful conduct.” Cuno, 547
U. S., at 342 (internal quotation marks omitted; emphasis
added). They claim two kinds of pocketbook injuries.
First, they allege an indirect injury in the form of the in-
creased use of (and therefore cost to) state-operated medical
insurance programs. Second, they claim a direct injury re-
sulting from a variety of increased administrative and re-
lated expenses required, they say, by the minimum essential
coverage provision, along with other provisions of the Act
that, they add, are inextricably “ `interwoven' ” with it.
Brief for Respondent/Cross-Petitioner States 39.
1
First, the state plaintiffs claim that the minimum essential
coverage provision has led state residents subject to it to
enroll in state-operated or state-sponsored insurance pro-
grams such as Medicaid, see 42 U. S. C. §§ 1396–1396w, the
Children's Health Insurance Program (CHIP), see § 1397aa,
and health insurance programs for state employees. The
state plaintiffs say they must pay a share of the costs of
serving those new enrollees. As with the individual plain-
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Opinion of the Court
tiffs, the States also have failed to show how this injury is
direc
tly traceable to any actual or possible unlawful Govern-
ment conduct in enforcing § 5000A(a). Cf. Clapper v. Am-
nesty Int'l USA, 568 U. S. 398, 415, n. 5 (2013) (“plaintiffs
bear the burden of . . . showing that the defendant's actual
action has caused the substantial risk of harm” (emphasis
added)). That alone is enough to show that they, like the
individual plaintiffs, lack Article III standing.
But setting aside that pure issue of law, we need only ex-
amine the initial factual premise of their claim to uncover
another fatal weakness: The state plaintiffs have failed to
show that the challenged minimum essential coverage provi-
sion, without any prospect of penalty, will harm them by
leading more individuals to enroll in these programs.
We have said that, where a causal relation between injury
and challenged action depends upon the decision of an inde-
pendent third party (here an individual's decision to enroll in,
say, Medicaid), “standing is not precluded, but it is ordinarily
`substantially more diffcult' to establish.” Lujan, 504 U. S.,
at 562 (quoting Allen, 468 U. S., at 758); see also Clapper,
568 U. S., at 414 (expressing “reluctance to endorse standing
theories that rest on speculation about the decisions of inde-
pendent actors”). To satisfy that burden, the plaintiff must
show at the least “that third parties will likely react in pre-
dictable ways.” Department of Commerce v. New York, 588
U. S. –––, ––– (2019). And, “at the summary judgment
stage, such a party can no longer rest on . . . mere allega-
tions, but must set forth . . . specifc facts” that adequately
support their contention. Clapper, 568 U. S., at 411–412 (in-
ternal quotation marks omitted). The state plaintiffs have
not done so.
The programs to which the state plaintiffs point offer their
recipients many benefts that have nothing to do with the
minimum essential coverage provision of § 5000A(a). See,
e. g., 42 U. S. C. §§ 1396o(a)–(b) (providing for no-cost Medi-
caid services furnished to children and pregnant women, and
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for emergency services, hospice care, and COVID–19 testing
related
services, among others, as well as “nominal” charges
for other individuals and services); § 1396o(c) (prohibiting
Medicaid premiums for certain individuals with family in-
come below 150 percent of the poverty line and capping the
premium at 10 percent of an eligible individual's family in-
come above that line); 26 U. S. C. § 36B(c)(2)(C) (providing
premium tax credits to make health insurance plans, includ-
ing employer-sponsored plans, more affordable). Given
these benefts, neither logic nor intuition suggests that the
presence of the minimum essential coverage requirement
would lead an individual to enroll in one of those programs
that its absence would lead them to ignore. A penalty
might have led some inertia-bound individuals to enroll.
But without a penalty, what incentive could the provision
provide?
The evidence that the state plaintiffs introduced in the
District Court does not show the contrary. That evidence
consists of 21 statements (from state offcials) about how new
enrollees will increase the costs of state health insurance
programs, see App. 79–191, 339–363, along with one state-
ment taken from a 2017 Congressional Budget Offce (CBO)
Report, see id., at 306–311.
Of the 21 statements, we have found only 4 that allege that
added state costs are attributable to the minimum essential
coverage requirement. And all four refer to that provision
as it existed before Congress removed the penalty effective
beginning tax year 2019, i. e., while a penalty still existed to
be enforced. See id., at 147–148 (decl. of Drew L. Snyder)
(noting “[e]fforts to avoid imposition of the fne likely
prompted more individuals to seek Medicaid from [Missis-
sippi]”); id., at 154 (decl. of Jennifer R. Tidball) (noting that
“Missouri residents were required to seek health care cover-
age or pay a penalty to the federal government,” and while
“it is diffcult to quantify the exact number of Medicaid en-
rollees that can be attributed to the [Act], during the time

Cite as: 593 U. S. 659 (2021) 677
Opinion of the Court
period the [Act] was implemented the Medicaid caseload in-
creased”);
id., at 341–342 (decl. of Blake Fulenwider) (observ-
ing that “Georgia residents were necessarily required to se-
cure health care coverage or pay a fne to the federal
government” and stating that “I believe that the individual
mandate played a substantial role in the increase in the
number of Medicaid recipients since 2011”); id., at 139 (decl.
of Mike Michael) (describing costs associated with “[p]lan
changes to cover individual mandate” spread “over the years
of 2013 to 2018”).
One other declaration refers to increased costs to the
States as employers, but it is vague as to the time period at
issue. See id., at 347–348 (decl. of Teresa MacCartney)
(“After the implementation of the [Act]'s individual mandate,
[Georgia's Department of Community Health] experienced a
substantial increase in employee elections to obtain health
insurance”).
The state plaintiffs emphasize one further piece of evi-
dence, a CBO Report released in 2017. See id., at 306–311.
At that time, Congress was considering whether to repeal
the minimum essential coverage provision or, instead, simply
set the penalty for failure to obtain coverage to $0 for all
taxpayers. The state plaintiffs focus on the paragraph of
the CBO Report that says that either way, the result would
be “very similar,” for “only a small number of people” would
continue to enroll in health insurance solely out of a “willing-
ness to comply with the law.” Id., at 307. And they argue
that a “small number” is suffcient (by raising costs in fur-
nishing Medicaid and CHIP) to provide them with standing.
In our view, however, this predictive sentence without
more cannot show that the minimum essential coverage pro-
vision was the cause of added enrollment to state health
plans. It does not explain, for example, who would buy in-
surance that they would not otherwise have bought. (For
example, individuals who purchase insurance on individual
exchanges—like individual plaintiffs Hurley and Nantz—do
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678 CALIFORNIA v. TEXAS
Opinion of the Court
not increase the relevant costs to the States of furnishing
coverage
.) Nor does it explain why they might do so. The
CBO statement does not adequately trace the necessary con-
nection between the provision without a penalty and new
enrollment in Medicaid and CHIP. We have found no other
signifcant evidence that might keep the CBO statement
company.
Unsurprisingly, the States have not demonstrated that an
unenforceable mandate will cause their residents to enroll in
valuable benefts programs that they would otherwise forgo.
It would require far stronger evidence than the States have
offered here to support their counterintuitive theory of
standing, which rests on a “highly attenuated chain of possi-
bilities.” Clapper, 568 U. S., at 410–411; cf. Department of
Commerce, 588 U. S., at ––– – ––– (District Court did not
clearly err in fnding that plaintiffs had standing where plain-
tiffs relied not only on “the predictable effect of Government
action on the decisions of third parties” but also on compre-
hensive studies, rather than mere “speculation” (emphasis
added)).
2
The state plaintiffs add that § 5000A(a)'s minimum essen-
tial coverage provision also causes them to incur additional
costs directly. They point to the costs of providing benef-
ciaries of state health plans with information about their
health insurance coverage, as well as the cost of furnishing
the IRS w ith that related i nfor mati on. See Br ief for
Respondent/Cross-Petitioner States 20–22 (citing 26 U. S. C.
§§ 6055, 6056).
The problem with these claims, however, is that other pro-
visions of the Act, not the minimum essential coverage provi-
sion, impose these other requirements. Nothing in the text
of these form provisions suggests that they would not oper-
ate without § 5000A(a). See §§ 6055(b)(1)(B)(iii)(II), (c)(1)
(requiring certifcation as to whether the benefciary's plan
qualifes for cost-sharing or premium tax credits under
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Opinion of the Court
§ 36B); §§ 6056(b)(2)(B), (c)(1) (requiring certifcation as
to
whether the plan qualifes as an “eligible employer-
sponsored plan” that satisfes § 4980H's employer mandate).
These provisions refer to § 5000A only to pick up a differ-
ent subsection's defnition of “minimum essential cover-
age.” See 26 U. S. C. §§ 6055(e), 6056(b)(2)(B) (incorporating
§ 5000A(f )'s defnition of “minimum essential coverage”). To
show that the minimum essential coverage requirement is
unconstitutional would not show that enforcement of any of
these other provisions violates the Constitution. The state
plaintiffs do not claim the contrary. The Government's con-
duct in question is therefore not “fairly traceable” to enforce-
ment of the “allegedly unlawful” provision of which the plain-
tiffs complain—§ 5000A(a). Allen, 468 U. S., at 751.
The state plaintiffs complain of other pocketbook injuries.
They say, for example, that, in order to avoid a “substantial
tax penalty,” they will have to “offer their full-time employ-
ees (and qualifed dependents) minimum essential coverage
under an elig ible employer-sponsored plan. ” Br ief for
Respondent/Cross-Petitioner States 23 (internal quotation
marks omitted). They say that the Act's insistence that
they “expand Medicaid eligibility” has led to “increas[ed] . . .
Medicaid expenditures.” Ibid. And they argue that “the
[Act]'s vast and complex rules and regulations” will require
additional expenditures. Id., at 22–23 (citing App. 152–153,
174, 190–191). They seem to argue that they will have to
pay more to expand coverage for employees who work 30–
39 hours per week, see App. 174, and for those who become
too old to remain in foster care, see id., at 152–153.
Again, the problem for the state plaintiffs is that these
other provisions also operate independently of § 5000A(a).
See 26 U. S. C. § 4980H(a) (establishing an employer man-
date); § 4980H(c)(4) (establishing employee eligibility for em-
ployer health plans for employees working 30–39 hours per
week); 42 U. S. C. § 1396a(a)(10)(A)(i)(IX) (providing continu-
ing Medicaid coverage for those aged out of foster care). At
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most, those provisions pick up only § 5000A(f )'s defnition of
mi
nimum essential coverage in related subsections. No one
claims these other provisions violate the Constitution.
Rather, the state plaintiffs attack the constitutionality of
only the minimum essential coverage provision. They have
not alleged that they have suffered an “injury fairly trace-
able to the defendant's allegedly unlawful conduct.” Cuno,
547 U. S., at 342 (quoting Allen, 468 U. S., at 751).
***
For these reasons, we conclude that the plaintiffs in this
suit failed to show a concrete, particularized injury fairly
traceable to the defendants' conduct in enforcing the specifc
statutory provision they attack as unconstitutional. They
have failed to show that they have standing to attack as un-
constitutional the Act's minimum essential coverage provi-
sion. Therefore, we reverse the Fifth Circuit's judgment in
respect to standing, vacate the judgment, and remand the
cases with instructions to dismiss.
It is so ordered.
Justice Thomas, concurring.
There is much to commend Justice Alito's account of “our
epic Affordable Care Act trilogy.” Post, at 685 (dissenting
opinion). This Court has gone to great lengths to rescue the
Act from its own text. Post, at 685–686. So have the Act's
defenders, who argued in the frst instance that the individual
coverage mandate is the Act's linchpin, yet now, in an about-
face, contend that it is just a throwaway sentence.
But, whatever the Act's dubious history in this Court, we
must assess the current suit on its own terms. And, here,
there is a fundamental problem with the arguments advanced
by the plaintiffs in attacking the Act—they have not identi-
fed any unlawful action that has injured them. Ante, at 669,
675, 678–680. Today's result is thus not the consequence
of the Court once again rescuing the Act, but rather of us
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Thomas, J., concurring
adjudicating the particular claims the plaintiffs chose to
br
ing.
I
This Court frst encountered the Act in 2011. That case
involved the constitutionality of the Act's individual cover-
age mandate. National Federation of Independent Busi-
ness v. Sebelius, 567 U. S. 519, 530 (2012). Despite correctly
recognizing that Congress' enumerated powers did not allow
it to impose such a mandate, the Court nonetheless upheld it
by characterizing the “fnancial penalty” imposed on those
who failed to comply with the mandate as a “tax.” Id.,
at 574.
That curious approach left us with no need to address a
subsidiary question on which we had also granted review:
whether the Act was inseverable from the mandate and thus
would need to fall if the mandate were unconstitutional.
The parties challenging the law argued “yes.” And the
Government agreed in part. It stressed that the mandate
could not be severed from two other important features of
the Act: the “guaranteed-issue” provision—which bars insur-
ers from denying coverage based on medical conditions or
history—and the “community-rating ” provision—which bars
insurers from charging individuals higher premiums for simi-
lar reasons. Brief for Respondents in National Federation
of Independent Business v. Sebelius, O. T. 2011, No. 11–393,
pp. 44–54; see 42 U. S. C. §§ 300gg–1, 300gg–3, 300gg–4(a),
300gg(a)(1), 300gg–4(b).
According to the Government, the mandate was “neces-
sary to make those [other] reforms effective.” Brief for Re-
spondents in No. 11–393, at 44. It noted that “Congress's
fndings expressly state that enforcement of those provisions
without a minimum coverage provision would restrict the
availability of health insurance and make it less affordable—
the opposite of Congress's goals in enacting the Affordable
Care Act.” Id., at 44–45; see §§ 18091(2)(H)–(J). And as
Justice Alito discusses in more detail, at the time we
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682 CALIFORNIA v. TEXAS
Thomas, J., concurring
decided NFIB, “it was widely thought that without the man-
date
much of the Act—and perhaps even the whole scheme—
would collapse.” Post, at 685, 710–711.
This Court also embraced that view when we reen-
countered the Act in 2015. King v. Burwell, 576 U. S. 473.
Saving the Act again through a feat of linguistic ingenuity—
this time by redefning “State” to mean “ `State or the Fed-
eral Government,' ” id., at 498 (Scalia, J., dissenting)—the
Court explained that “Congress [had] found that the guaran-
teed issue and community rating requirements would not
work without the [mandate],” id., at 482; see also post, at
688–689 (Alito, J., dissenting).
But times have changed. In this suit, the plaintiffs assert
that the mandate is unconstitutional because it no longer im-
poses fnancial consequences and thus cannot be justifed as a
tax. And given that the mandate is unconstitutional, other
portions of the Act that actually harm the plaintiffs must fall
with it. In response to this theory, the current administra-
tion contends that the mandate can be severed from the rest
of the Act. Letter from E. Kneedler, Deputy Solicitor Gen-
eral, to S. Harris, Clerk of Court (Feb. 10, 2021) (notifying
the Court of the Federal Government's change in position).
The Act's other defenders agree. Brief for Petitioners 35–
49. In other words, those who would preserve the Act must
reverse course and argue that the mandate has transformed
from the cornerstone of the law into a standalone provision.
II
On all of this Justice Alito and I agree. Where we part
ways is on the relief to which the plaintiffs are entitled. The
Constitution gives this Court only the power to resolve “Cas-
es” or “Controversies.” Art. III, § 2. As everyone agrees,
we have interpreted this language to require a plaintiff to
present an injury that is traceable to a particular “unlawful”
action. Ante, at 669, 675, 678–680; post, at 692–693 (Alito,

Cite as: 593 U. S. 659 (2021) 683
Thomas, J., concurring
J., dissenting). And in light of the specifc theories and ar-
g
uments advanced in this suit, I do not believe that the plain-
tiffs have carried this burden. As the majority explains in
detail, the individual plaintiffs allege only harm caused by
the bare existence of an unlawful statute that does not im-
pose any obligations or consequences. Ante, at 669–674.
That is not enough. The state plaintiffs' arguments fail for
similar reasons. Although they claim harms fowing from
enforcement of certain parts of the Act, they attack only the
lawfulness of a different provision. None of these theories
trace a clear connection between an injury and unlawful
conduct.
Justice Alito does not contest that analysis. Rather, he
argues that the state plaintiffs can establish standing an-
other way: through “inseverability.” Post, at 699 (“First,
[the States] contend that the individual mandate is unconsti-
tutional . . . . Second, they argue that costly obligations
imposed on them by other provisions of the ACA cannot be
severed from the mandate. If both steps of the States' argu-
ment that the challenged enforcement actions are unlawful
are correct, it follows that the Government cannot lawfully
enforce those obligations against the States”). This theory
offers a connection between harm and unlawful conduct.
And, it might well support standing in some circumstances,
as it has some support in history and our case law. See post,
at 699–703; Lea, Situational Severability, 103 Va. L. Rev. 735,
764–776 (2017).
But, I do not think we should address this standing-
through-inseverability argument for several reasons. First,
the plaintiffs did not raise it below, and the lower courts did
not address it in any detail. 945 F. 3d 355, 386, n. 29 (CA5
2019). That omission is reason enough not to address this
theory because “ `we are a court of review, not of frst view.' ”
Brownback v. King, 592 U. S. –––, –––, n. 4 (2021). Second,
the state plaintiffs did not raise this theory in their opening
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brief before this Court, see Brief for Respondent/Cross-
P
etitioner States 18–30,
1
and they did not even clearly raise
it in reply.
2
Third, this Court has not addressed standing-
through-inseverability in any detail, largely relying on it
through implication. See post, at 699–703; Steel Co. v. Citi-
zens for Better Environment, 523 U. S. 83, 91 (1998) (“We
have often said that drive-by jurisdictional rulings . . . have
no precedential effect”). And fourth, this Court has been
inconsistent in describing whether inseverability is a remedy
or merits question. To the extent the parties seek insever-
ability as a remedy, the Court is powerless to grant that
relief. See Murphy v. National Collegiate Athletic Assn.,
584 U. S. 453, 488–489 (2018) (Thomas, J., concurring); see
also Barr v. American Assn. of Political Consultants, 591
1
The States instead raised the two pocketbook injury theories discussed
by the Court, ante, at 674; Brief for Respondent/Cross-Petitioner States
19–28, along with another irrelevant theory. Both theories focused only
on the mandate's unlawfulness. The dissent points to certain language
arguably touching on standing-through-inseverability, post, at 697, but I
respectfully disagree. That language addresses a different theory—the
argument that the unlawful mandate harms the States by increasing the
cost of complying with other Act provisions, such as reporting require-
ments relating to the mandate. Ante, at 678–680; Brief for Respondent/
Cross-Petitioner States 20–25 (discussing how “the individual mandate it-
self increased the costs to state respondents in at least six ways” (brackets
and internal quotation marks omitted)). As the Court notes, “[n]o one
claims these other provisions violate the Constitution.” Ante, at 680.
And, the Court does not address the argument that these provisions are
otherwise unlawful. Ante, at 674 (“declin[ing] to consider” the standing-
through-inseverability theory raised by the dissent “on behalf of the
state plaintiffs”).
2
This lack of legal development is particularly signifcant because
standing-through-inseverability—assuming it is a legitimate theory of
standing—is fundamentally a merits-like exercise that requires courts to
apply ordinary principles of statutory interpretation to determine if it is
at least “arguable” that a statute links the lawfulness of one provision to
the lawfulness of another. See Steel Co. v. Citizens for Better Environ-
ment, 523 U. S. 83, 89 (1998). Thus, a failure to develop a standing-
through-inseverability argument poses a signifcant obstacle to review.

Cite as: 593 U. S. 659 (2021) 685
Alito, J., dissenting
U. S. –––, –––, n. 8 (2020) (plurality opinion). Thus, standing-
through-i
nseverability could only be a valid theory of stand-
ing to the extent it treats inseverability as a merits exercise
of statutory interpretation. See post, at 698–699 (Alito, J.,
dissenting); Lea, 103 Va. L. Rev., at 764–776. But petition-
ers have proposed no such theory.
***
The plaintiffs failed to demonstrate that the harm they
suffered is traceable to unlawful conduct. Although this
Court has erred twice before in cases involving the Afford-
able Care Act, it does not err today.
Justice Alito, with whom Justice Gorsuch joins,
dissenting.
Today's decision is the third installment in our epic Afford-
able Care Act trilogy, and it follows the same pattern as in-
stallments one and two. In all three episodes, with the Af-
fordable Care Act facing a serious threat, the Court has
pulled off an improbable rescue.
In the opening installment, National Federation of Inde-
pendent Business v. Sebelius, 567 U. S. 519 (2012) (NFIB),
the Court saved the so-called “individual mandate,” the same
critical provision at issue in today's suit. At that time, the
individual mandate imposed a “penalty” on most Americans
who refused to purchase health insurance or enroll in Medi-
caid, see 26 U. S. C. § 5000A (2012 ed.), and it was widely
thought that without the mandate much of the Act—and
perhaps even the whole scheme—would collapse. The Gov-
ernment's principal defense of the mandate was that it repre-
sented a lawful exercise of Congress's power to regulate
interstate commerce, see U. S. Const., Art. I, § 8, cl. 3, but
the Court rejected that unprecedented argument, see 567
U. S., at 572 (opinion of the Court); id., at 561 (opinion of
Roberts, C. J.); id., at 648 ( joint dissent of Scalia, Kennedy,
Thomas, and Alito, JJ.). That might have foretold doom,
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686 CALIFORNIA v. TEXAS
Alito, J., dissenting
but then, in a stunning turn of events, the threat to the ACA
was
defused when the “penalty” for failing to comply with
the mandate was found to be a “tax” and thus to be justifed
as an exercise of Congress's taxing power. Id., at 575 (opin-
ion of Roberts, C. J.); see also id., at 574 (opinion of the
Court); see U. S. Const., Art. I, § 8, cl. 1. By a vote of 5 to
4, the individual mandate—and with it the rest of the ACA—
lived on.
In the next installment, King v. Burwell, 576 U. S. 473
(2015), the Court carried out an equally impressive rescue.
One of the Act's key provisions provided subsidies to persons
purchasing insurance through exchanges established by a
“State.” 26 U. S. C. §§ 36B(b)–(c) (2012 ed.). When many
States refused to establish such exchanges, the Federal Gov-
ernment did so instead. But the critical subsidies were
seemingly unavailable on those exchanges, which had not
been established by a “State” in any conventional sense of
the term. Once again, some feared that the Act was in mor-
tal danger, but the Court came to the rescue by fnding that
the Federal Government is a “State.” 576 U. S., at 484–498.
Now, in the trilogy's third episode, the Court is presented
with the daunting problem of a “tax” that does not tax. Can
the taxing power, which saved the day in the frst episode,
sustain such a curious creature? In 2017, Congress reduced
the “tax” imposed on Americans who failed to abide by the
individual mandate to $0. With that move, the slender reed
that supported the decision in NFIB was seemingly cut
down, but once again the Court has found a way to protect
the ACA. Instead of defending the constitutionality of the
individual mandate, the Court simply ducks the issue and
holds that none of the Act's challengers, including the 18
States that think the Act saddles them with huge fnancial
costs, is entitled to sue.
Can this be correct? The ACA imposes many burden-
some obligations on States in their capacity as employers,
and the 18 States in question collectively have more than a

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Alito, J., dissenting
million employees.
1
E
ven $1 in harm is enough to support
standing. Yet no State has standing?
In prior cases, the Court has been selectively generous in
allowing States to sue. Just recently, New York and certain
other States were permitted to challenge the inclusion of a
citizenship question in the 2020 census even though any
effec t on them depended on a specu lative chai n of
events. See Department of Commerce v. New York, 588
U. S. –––, ––– – ––– (2019). The States' theory was that the
citizenship question might cause some residents to violate
their obligation to complete a census questionnaire and that
this, in turn, might decrease the States' allocation of House
seats and their share of federal funds. Id., at –––.
Last Term, Pennsylvania and New Jersey were permitted
to contest a rule exempting the Little Sisters of the Poor
and other religious employers from the ACA's contraceptive
mandate. Little Sisters of the Poor Saints Peter and Paul
Home v. Pennsylvania, 591 U. S. ––– (2020). There, the the-
ory was that some affected employees might not be able
to afford contraceptives and might therefore turn to state-
funded sources to pay for their contraceptives or the
expenses of an unwanted preg nancy.
2
Some years ago,
Massachusetts was allowed to sue (and force the Environ-
mental Protection Agency to regulate greenhouse gases) on
the theory that failure to do so would cause the ocean to rise
and reduce the size of the Commonwealth. See Massachu-
setts v. EPA, 549 U. S. 497, 521–526 (2007). On the other
hand, when Texas recently tried to sue to press different
1
See Dept. of Commerce, Bureau of Census, 2020 Annual Survey of
Public Employment & Payroll Datasets, State Government Employ-
ment & Payroll Data (May 2021), www.census.gov/programs-surveys/apes/
technical-documentation.html.
2
See Pennsylvania v. President of United States, 930 F. 3d 543, 561–
565 (CA3 2019). Although our opinion did not address the issue, we are
required to consider Article III standing in every case that comes before
us. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 95
(1998).

688 CALIFORNIA v. TEXAS
Alito, J., dissenting
legal issues in an original action, the Court would not even
a
llow it to fle its complaint. See Texas v. California, post,
p. ––– (Alito, J., dissenting).
In this suit, as I will explain, Texas and the other state
plaintiffs have standing, and now that the “tax” imposed by
the individual mandate is set at $0, the mandate cannot be
sustained under the taxing power. As a result, it is clearly
unconstitutional, and to the extent that the provisions of the
ACA that burden the States are inextricably linked to the
individual mandate, they too are unenforceable.
I
A
The Patient Protection and Affordable Care Act (ACA),
124 Stat. 119, comprehensively reengineered our country's
healthcare laws. The Act itself totals 906 pages, and thou-
sands of pages of regulations have been issued to implement
it. At its core, the ACA includes a series of “closely interre-
lated” provisions, NFIB, 567 U. S., at 691 ( joint dissent), that
impose a bevy of new legal obligations on individuals, insur-
ers, employers, and States.
A critical component of the Act's design was the individual
mandate, which provides that each “applicable individual
shall . . . ensure that the individual . . . is covered under
mi ni mum essentia l coverage. ” 26 U. S. C. § 5000A(a).
Originally, most individuals who were subject to but dis-
obeyed this command were liable for what the Act called a
“[s]hared responsibility payment” or “penalty.” § 5000A(b).
The individual mandate was “closely intertwined” with other
critical provisions, King, 576 U. S., at 482, including the criti-
cal “guaranteed issue” and “community rating ” provisions,
which ensured that individuals with preexisting medical
conditions would not be denied coverage or pay unusually
high premiums. See, e. g., 42 U. S. C. §§ 300gg, 300gg–1(a).
Put simply, “Congress found that the guaranteed issue and
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Alito, J., dissenting
community rating requirements would not work without the”
i
ndividual mandate. King, 576 U. S., at 482.
Several additional features of the ACA are important in
this suit. First, certain employers, including the state plain-
tiffs, must offer employees the opportunity to enroll in costly
“minimum essential [healthcare] coverage,” and the Act de-
mands that such plans cover an employee's dependent chil-
dren until they turn 26. 26 U. S. C. § 4980H; 42 U. S. C.
§ 300gg–14. Most employers that fail to offer this coverage
are subject to a hefty penalty of thousands of dollars per
employee. 26 U. S. C. §§ 4980H(a), (b), (c)(1).
The ACA also imposes burdensome reporting require-
ments on certain employers like the state plaintiffs. See
§§ 6055, 6056. Under § 6055 of the Internal Revenue Code,
employers that “provid[e] minimum essential coverage” must
submit documentation every year to both the Internal Reve-
nue Service and the covered individuals. §§ 6055(a)–(c).
Sec ti on 6056 i mposes si mi lar repor ti ng obl igati ons on
“[e]very applicable large employer” subject to the employer
mandate. See §§ 6056(a)–(c). Failure to satisfy these re-
porting requirements can result in substantial monetary pen-
alties. See §§ 6721, 6722.
B
Although the ACA survived this Court's decisions in
NFIB and King, it remained controversial, and in 2017, a
major effort was made to repeal much of it. A bill to do just
that passed the House of Representatives in May, but soon
after failed in the Senate. See American Health Care Act
of 2017, H. R. 1628, 115th Cong., 1st Sess. (2017). Later that
year, the two Chambers compromised in the Tax Cuts and
Jobs Act (TCJA), Pub. L. 115–97, 131 Stat. 2054, which set
the amount of the “tax” imposed for noncompliance with the
individual mandate at “[z]ero percent” and “$0.” § 11081,
131 Stat. 2092 (amending 26 U. S. C. § 5000A). What the
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690 CALIFORNIA v. TEXAS
Alito, J., dissenting
NFIB Court had salvaged as a “tax” could now raise no
re
venue.
C
After the enactment of the TCJA, Texas and 17 other
States brought suit against the United States, the Commis-
sioner of the IRS, the IRS, the Secretary of Health and
Human Services, and the Department of Health and Human
Services to challenge the ACA.
3
The state plaintiffs identi-
fed many expenses imposed on them by the ACA, and they
sought declaratory and injunctive relief. In their view, the
individual mandate could no longer be sustained as a “tax,”
and the remainder of the ACA was unenforceable because it
was inseparable from that unconstitutional provision. Soon
thereafter, two individuals joined the States as plaintiffs.
California, 15 other States, and the District of Columbia in-
tervened to defend the ACA.
4
For its part, the Federal
Government agreed that the individual mandate was uncon-
stitutional but argued that it was severable from almost all
other portions of the ACA.
Ruling on what it construed as a plaintiffs' motion for par-
tial summary judgment, the District Court declared the en-
tire ACA unlawful. Texas v. United States, 340 F. Supp. 3d
579, 619 (ND Tex. 2018). It held that the individual plain-
tiffs had standing, that the individual mandate could no
longer be sustained as a lawful exercise of Congress's taxing
3
These States were Alabama, Arizona, Arkansas, Florida, Georgia, Indi-
ana, Kansas, Louisiana, Mississippi (via its Governor), Missouri, Nebraska,
North Dakota, South Carolina, South Dakota, Tennessee, Utah, and West
Virginia. The State of Wisconsin was also a plaintiff in District Court
but has since been voluntarily dismissed from the suit. Former Maine
Governor Paul LePage attempted to represent Maine as a plaintiff in the
District Court, but was subsequently dismissed from the lawsuit.
4
The state intervenors are California, Connecticut, Delaware, Hawaii,
Illinois, Kentucky (via its Governor), Massachusetts, Minnesota, New Jer-
sey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia,
and Washington. Colorado, Iowa, Michigan, and Nevada also joined as
additional state intervenors while this suit was on appeal.
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Alito, J., dissenting
power, and that the mandate was inseverable from the re-
mai
nder of the ACA, including the provisions that impose
fnancial burdens on the state plaintiffs. Id., at 592–619.
On appeal, the Fifth Circuit affrmed in part and vacated
in part. Texas v. United States, 945 F. 3d 355 (CA5 2019).
It found that both the state plaintiffs and the individual
plaintiffs had standing, and it agreed with the District Court
that the individual mandate could no longer be sustained
under the taxing power. But the Court of Appeals re-
manded the case and directed the District Court to reassess
the broad relief it had ordered.
The state intervenors then fled a petition for a writ of
certiorari seeking review of the Court of Appeals' interlocu-
tory decision. The plaintiffs opposed interlocutory review,
but fled a conditional cross-petition asking us to review the
Court of Appeals' remand decision in the event that the
Court granted the state intervenors' petition. This Court
granted both petitions. 589 U. S. ––– (2020).
II
We may consider the merits of this appeal if even one
plaintiff has standing, Little Sisters of the Poor, 591 U. S.,
at –––, n. 6; Rumsfeld v. Forum for Academic and Institu-
tional Rights, Inc., 547 U. S. 47, 52, n. 2 (2006), but the ma-
jority concludes that no plaintiff—neither the States that
originally brought suit nor the individual plaintiffs who later
joined them—has standing under Article III of the Constitu-
tion. That is a remarkable holding. While the individual
plaintiffs' claim to standing raises a novel question, the
States have standing for reasons that are straightforward
and meritorious. The Court's contrary holding is based on
a fundamental distortion of our standing jurisprudence.
A
The governing rules are well-settled. To establish Article
III standing, a plaintiff must show: (1) “an injury in fact”;
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Alito, J., dissenting
(2) that this injury “is fairly traceable to the challenged con-
duc
t of the defendant”; and (3) that the injury “is likely to
be redressed by a favorable judicial decision.” Spokeo, Inc.
v. Robins, 578 U. S. 330, 338 (2016); see also, e. g., Carney v.
Adams, 592 U. S. 53, 58 (2020); Hollingsworth v. Perry, 570
U. S. 693, 704 (2013); Lujan v. Defenders of Wildlife, 504
U. S. 555, 560–561 (1992).
In the present suit, there is no material dispute that the
States have satisfed two of these requirements. First,
there is no question that the States have demonstrated an
injury in fact. An injury in fact is “an invasion of a legally
protected interest that is concrete and particularized and ac-
tual or imminent, not conjectural or hypothetical.” Spokeo,
578 U. S., at 339 (internal quotation marks omitted). A f-
nancial or so-called “pocketbook” injury constitutes injury in
fact, and even a small pocketbook injury—like the loss of
$1—is enough. See Czyzewski v. Jevic Holding Corp., 580
U. S. 451, 464 (2017) (“For standing purposes, a loss of even
a small amount of money is ordinarily an `injury' ”). Here,
the States have offered plenty of evidence that they incur
substantial expenses in order to comply with obligations im-
posed by the ACA.
There is likewise no material dispute that these fnancial
injuries could be redressed by a favorable judgment. The
District Court declared the entire ACA unenforceable, and
that judgment, if sustained, would spare the States from the
costs of complying with the ACA's provisions. So too would
a more modest judgment limited to only those ACA provi-
sions that directly burden the States.
The standing dispute in this suit thus turns on traceability.
See ante, at 674–680. But once this requirement is properly
understood, it is apparent that it too is met.
Our cases explain that traceability requires “a causal con-
nection between the injury and the conduct complained of.”
Lujan, 504 U. S., at 560 (emphasis added). In other words,
the injury has to be “ `fairly . . . trace[able] to the challenged
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Alito, J., dissenting
action of the defendant.' ” Ibid. (quoting Simon v. Eastern
Ky
. Welfare Rights Organization, 426 U. S. 26, 41 (1976); em-
phasis added). We have repeatedly and consistently de-
scribed the traceability inquiry this way. See Spokeo, 578
U. S., at 338 (“The plaintiff must have (1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct
of the defendant”); Hein v. Freedom From Religion Founda-
tion, Inc., 551 U. S. 587, 598 (2007) (plurality opinion) (“A
plaintiff must allege personal injury fairly traceable to the
defendant's allegedly unlawful conduct” (internal quotation
marks omitted)); DaimlerChrysler Corp. v. Cuno, 547 U. S.
332, 342 (2006) (“A plaintiff must allege personal injury fairly
traceable to the defendant's allegedly unlawful conduct” (in-
ternal quotation marks omitted)); Bennett v. Spear, 520 U. S.
154, 162 (1997) (requiring “that the injury is fairly traceable
to the actions of the defendant” (internal quotation marks
omitted)); Lujan, 504 U. S., at 560 (requiring an injury “fairly
traceable to the challenged action of the defendant” (internal
quotation marks and alterations omitted)); Allen v. Wright,
468 U. S. 737, 757 (1984) (requiring an injury “fairly traceable
to the Government conduct respondents challenge as unlaw-
ful”).
5
Tracing injuries to particular conduct ensures that
the properly adverse parties are before the court and rein-
forces the traditional understanding of legal judgments.
See Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (“If a
case for preventive relief be presented,” what the court en-
joins are “the acts of the offcial” charged with the law's
enforcement).
5
There are dozens upon dozens of examples. Some recent cases include
Uzuegbunam v. Preczewski, 592 U. S. 279, 285 (2021); Carney v. Adams,
592 U. S. 53, 58 (2020); Department of Commerce v. New York, 588 U. S.
–––, ––– (2019); Virginia House of Delegates v. Bethune-Hill, 587 U. S.
–––, ––– (2019); Gill v. Whitford, 585 U. S. –––, ––– (2018); Town of Chester
v. Laroe Estates, Inc., 581 U. S. 433, 438 (2017); Bank of America Corp. v.
Miami, 581 U. S. 189, 196 (2017); and Czyzewski v. Jevic Holding Corp.,
580 U. S. 451, 462 (2017).
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Alito, J., dissenting
The States have clearly shown that they suffer concrete
and
particularized fnancial injuries that are traceable to con-
duct of the Federal Government. The ACA saddles them
with expensive and burdensome obligations, and those obli-
gations are enforced by the Federal Government. That is
suffcient to establish standing. As the Court observed in
Lujan, when a party is “an object of the action . . . at issue,”
“there is ordinarily little question that the action . . . has
caused [that party] injury”—i. e., that the injury is traceable
to that action—“and that a judgment preventing . . . the
action will redress it.” 504 U. S., at 561–562. That is pre-
cisely the situation here. The state plaintiffs have shown
that they are the object of potential federal enforcement
actions if they do not comply with costly and burdensome
obligations that the ACA imposes.
Consider what the state plaintiffs have shown with respect
to the ACA reporting requirements codifed at 26 U. S. C.
§§ 6055 and 6056. These sections provide the basis for the
familiar 1094 and 1095 IRS tax forms. Section 6055 applies
to those who “provid[e] minimum essential coverage to an
individual during a calendar year.” Subsection (a) of that
provision requires that returns be fled with the IRS, and
subsection (c) requires that similar forms be provided to cov-
ered individuals. Section 6056 similarly requires certain
large employers to report to both the IRS and employees
about whether they offer health insurance coverage. The
States plainly have demonstrated standing to seek relief
from these burdensome reporting obligations.
Start with injury in fact. The States have offered undis-
puted evidence documenting the ongoing fnancial costs of
complying with these reporting requirements. Missouri, for
example, offered a declaration attesting to spending $185,061
in fscal year 2016 on Forms 1094 and 1095. App. 163. That
declaration also attested to costs or projected costs of more
than $45,000 for each fscal year from 2017 through 2021.
Ibid. South Dakota provided evidence of “ongoing ” report-

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Alito, J., dissenting
ing costs totaling $100,000. Id., at 187. Kansas offered evi-
dence
of more than $100,000 in reporting costs. Id., at 142.
These are just a few examples. See also, e. g., id., at 103
(Texas); id., at 350–351 (Georgia). There is no question that
these undisputed, ongoing fnancial costs qualify as injuries
in fact. See Jevic Holding Corp., 580 U. S., at 464.
Now turn to traceability. Are these fnancial injuries
“fairly traceable to the challenged conduct”? Hollings-
worth, 570 U. S., at 704. The answer is clearly yes. The
reporting requirements in §§ 6055 and 6056 are enforceable
by the Federal Government, and noncompliance may result
in heavy penalties. Section 6721(a)(1) of the Internal Reve-
nue Code, for example, provides “a penalty” for the failure
to complete an “information return,” which includes reports
required by §§ 6055(a) and 6056(a). See 26 U. S. C. §§ 6724(d)
(1)(B)(xxiv), (xxv). And § 6722(a)(1) provides “a penalty” for
the failure to issue a “payee statement,” which includes the
reports required by §§ 6055(c) and 6056(c). See §§ 6724(d)
(2)(GG), (HH). These penalties can amount to at least $280
per infraction, and they can quickly run up into the millions
of dollars. See §§ 6721, 6722.
6
That leaves redressability, which asks whether the re-
quested relief is likely to redress the party's injury. Steel
Co. v. Citizens for Better Environment, 523 U. S. 83, 103
(1998). Looking to the relief the District Court in fact
granted makes it obvious that the States' injuries in the form
of ongoing reporting expenses are redressable. The District
Court entered a judgment that, among other things, declared
the reporting requirements in §§ 6055 and 6056 unenforce-
able. See 340 F. Supp. 3d, at 619. With that judgment in
hand, the States would be freed from the obligation to ex-
pend funds to comply with those requirements—redressing
their fnancial injury prospectively.
6
Willful failure to comply with the reporting requirements in §§ 6055
and 6056 can also result in criminal penalties. See 26 U. S. C. § 7203.
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696 CALIFORNIA v. TEXAS
Alito, J., dissenting
The state plaintiffs have similarly demonstrated standing
to
seek relief from ACA provisions requiring them to offer
expensive health insurance coverage for their employees.
Consider the ACA's requirement that group health plans and
health insurance offerings extend coverage to adult children
until they reach the age of 26. See 42 U. S. C. § 300gg–14(a).
Texas has spent more than $80 million complying with that
rule. App. 81. Missouri has spent more than $10 million.
Id., at 159; id., at 157 (“The Missouri Consolidated Health
Care Plan is a non-federal governmental health plan which
provides insurance coverage for most state employees”); id.,
at 159 (Missouri will “indefnitely continue paying these addi-
tional costs”).
These obligations, too, are backed by substantial enforce-
ment mechanisms. For instance, the state plaintiffs gener-
ally must offer employees coverage that complies with
§ 300gg–14 to avoid violating the employer mandate, see 26
U. S. C. § 4980H, and the failure to comply would expose the
States to penalties of thousands of dollars per employee each
year, see §§ 4980H(a), (b), (c)(1). Similarly, the failure to
cover adult children would expose many state health plans
to penalties under 42 U. S. C. § 300gg–22(b)(2), and those pen-
alties can amount to $100 per day for each person offered
noncompliant coverage. Ibid. Thus, the States are pre-
sented with the choice of spending millions to cover adult
children or risking untold sums for failing to do so.
In this way, the States' fnancial injuries from offering
health coverage to adult children are traceable to the loom-
ing threat of enforcement actions. And those fnancial
injuries can be prospectively redressed by a declaratory
judgment making clear that the States are not, in fact, obli-
gated to offer health coverage to children up to age 26.
While I have outlined two examples of concrete, traceable,
and redressable injuries demonstrated by the state plaintiffs,
these examples are not exhaustive. The ACA is an enor-
mously complex statute, and the States have offered evi-
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Alito, J., dissenting
dence of ongoing fnancial injuries relating to compliance
w
ith many other different (and enforceable) ACA provisions.
See, e. g., App. 81–86 (Texas's compliance costs); id., at 139
(Kansas); id., at 158–162, 165–170 (Missouri); id., at 182–184
(South Carolina); id., at 186–190 (South Dakota); id., at 345–
350 (Georgia).
B
The Court largely ignores the theory of standing outlined
above. It devotes most of its attention to two other theo-
ries, see ante, at 668–680, and when it does address the rele-
vant injuries, its arguments are deeply fawed.
The Court's primary argument rests on a patent distortion
of the traceability prong of our established test for standing.
Partially quoting a line in Allen, the Court demands a show-
ing that the “Government's conduct in question is . . . `fairly
traceable' to enforcement of the `allegedly unlawful' provi-
sion of which the plaintiffs complain—§ 5000A(a).” Ante,
at 679 (quoting 468 U. S., at 751; emphasis added). This is a
fat-out misstatement of the law and what the Court wrote
in Allen. What Allen actually requires is a “personal injury
fairly traceable to the defendant's allegedly unlawful con-
duct,” id., at 751 (emphasis added). And what this state-
ment means is that the plaintiff 's “injury” must be traceable
to the defendant's conduct, and that conduct must be “alleg-
edly unlawful.”
7
“Allegedly unlawful” means that the plain-
tiff must allege that the conduct is unlawful. (The States
allege that the challenged enforcement actions are unlawful
using a traditional legal argument, see infra, at 698–703.)
But a plaintiff 's standing (and thus the court's Article III
jurisdiction) does not require a demonstration that the de-
fendant's conduct is in fact unlawful. That is a merits issue.
7
Allen repeated that point seven more times, see 468 U. S., at 752, 753,
n. 19, 757–759, and that is precisely what countless other cases require, see
supra, at 692–693, and n. 5. But the majority's rejection of the relevant
theory of standing depends on this erroneous description of the law.
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If Article III standing required a showing that the plain-
ti
ff's alleged injury is traceable to (i. e., in some way caused
by) an unconstitutional provision, then whenever a claim of
unconstitutionality was ultimately held to lack legal merit—
even after a full trial—the consequence would be that the
court lacked jurisdiction to entertain the suit in the frst
place. That would be absurd, and this Court has long re-
sisted efforts to transform ordinary merits questions into
threshold jurisdictional questions by jamming them into the
standing inquiry. See, e. g., Arizona State Legislature v.
Arizona Independent Redistricting Comm'n, 576 U. S. 787,
800 (2015); Whitmore v. Arkansas, 495 U. S. 149, 155 (1990);
ASARCO Inc. v. Kadish, 490 U. S. 605, 624 (1989). “[S]tand-
ing does not depend on the merits of a claim.” Davis v.
United States, 564 U. S. 229, 249, n. 10 (2011) (internal quota-
tion marks and alterations omitted). And “ `jurisdiction is
not defeated by the possibility that the averments [in a
complaint] might fail to state a cause of action on which peti-
tioners could actually recover.' ” Steel Co., 523 U. S., at 89
(quoting Bell v. Hood, 327 U. S. 678, 682 (1946); alterations
omitted). Rather, if the challenged action is “allegedly un-
lawful,” that suffces for standing purposes. Allen, 468
U. S., at 751; see also Whitmore, 495 U. S., at 155 (“Our
threshold inquiry into standing in no way depends on the
merits of the petitioner's contention that particular conduct
is i l lega l” ( i nter na l quot ati on marks and a lterati ons
omitted)).
C
The Court's distortion of the traceability requirement is
bad enough in itself, but there is more. After imposing an
obstacle that the States should not have to surmount to es-
tablish standing, the Court turns around and refuses to con-
sider whether the States have cleared that obstacle. It's as
if the Court told the States: “In order to bring your case in
federal court, you have to pay a fling fee of $100,000, but we
will not give you a chance to pay that money.”
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The Court says that the States cannot establish standing
unless
they show that their injuries are traceable to the indi-
vidual mandate, and the States claim that their injuries are
indeed traceable to the mandate. Their argument proceeds
in two steps. First, they contend that the individual man-
date is unconstitutional because it does not fall within any
power granted to Congress by the Constitution. Second,
they argue that costly obligations imposed on them by other
provisions of the ACA cannot be severed from the mandate.
If both steps of the States' argument that the challenged
enforcement actions are unlawful are correct, it follows that
the Government cannot lawfully enforce those obligations
against the States.
There can be no question that this argument is conceptu-
ally sound. Imagine Statute ABC. Provision A imposes
enforceable legal obligations on the plaintiff. Provision B
imposes a legal obligation on a different party. And provi-
sion C provides that a party is not obligated to comply with
provision A if provision B is held to be unconstitutional.
Based on the plain text of this law, a party subject to provi-
sion A should be able to obtain relief from the enforcement
of provision A if it can show that provision B is unconstitu-
tional. To hold otherwise would be directly contrary to the
statutory text. But the Court's reasoning would make such
a claim impossible. The plaintiff would be thrown out of
court at the outset of the case for lack of standing.
That cannot be right. And if the Court really means to
foreclose all such claims from now on, that is a big change
because we have repeatedly heard such arguments and
eva luated them on the mer its. See Lea, Situati ona l
Severability, 103 Va. L. Rev. 735, 769 (2017) (explaining that
similar “claims are a longstanding feature of American
jurisprudence”).
In Seila Law LLC v. Consumer Financial Protection Bu-
reau, 591 U. S. ––– (2020), a law frm resisted the CFPB's
efforts to enforce a civil investigative demand. The frm
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Alito, J., dissenting
argued that (A) it was harmed by actions taken under statu-
tory
provisions authorizing the Bureau to issue civil investi-
gative demands; (B) the Bureau's Director, under whose au-
thority the demands had been issued, was protected by an
unlawful removal restriction; and (C) the removal restriction
was inseverable from the investigative provisions. The
Court did not decide the severability issue at the standing
stage. Instead, it properly treated severability as a merits
issue, held that the removal restriction was unlawful, and
considered whether relief could be granted because the in-
vestigative provisions were inseverable from the removal re-
striction. Id., at ––– – ––– (opinion of the Court); id., at –––
– ––– (plurality opinion).
Indeed, the Seila Law Court had little trouble dismissing
the same misguided approach to traceability that the major-
ity adopts today. The court-appointed amicus suggested
that there was lack of traceability because there was no proof
that the injury was caused by the removal restriction. “Our
precedents say otherwise,” we explained, as a “plaintiff's in-
jury must be fairly traceable to the challenged action of the
defendant,” and it is “suffcient that the challenger sustains
injury from an executive act that allegedly exceeds the off-
cial's authority.” Id., at ––– – ––– (opinion of the Court) (in-
ternal quotation marks and alterations omitted). Not a sin-
gle Justice disputed that conclusion.
In Free Enterprise Fund v. Public Company Accounting
Oversight Bd., 561 U. S. 477 (2010), an accounting frm
challenged the power of the Public Company Accounting
Oversight Board to regulate the accounting industry and in-
vestigate its activities. The frm argued that (A) it was
harmed by the actions taken under statutory provisions that
gave the Board regulatory and investigatory authority; (B)
other provisions unlawfully insulated Board members with
dual-layer for-cause removal restrictions; and (C) the re-
moval provisions were inseverable from provisions authoriz-
ing the pertinent regulatory activities. The Court enter-
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Alito, J., dissenting
tained this argument on the merits, concluding that the
remova
l restriction was unlawful, id., at 492–508, but reject-
ing the argument that the removal provision was inseverable
from the provisions authorizing the actions that directly
harmed the frm, id., at 508–510. While the Court's sever-
ability determination meant that the accounting frm was
“not entitled to broad injunctive relief against the Board's
continued operations,” id., at 513, no one questioned the
frm's standing to seek that relief in the frst place.
In Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U. S. 172 (1999), several Bands of Chippewa Indians
sought a declaratory judgment that an 1837 Treaty gave
their members a right to hunt on historic Chippewa lands.
An 1850 Executive Order had purported to revoke those
hunting rights, but the Bands argued that (A) one portion of
the Executive Order purported to extinguish their hunting
rights; (B) a different portion of the Executive Order—the
“removal order,” which had nothing to do with hunting
rights—was unlawful; and (C) the hunting rights revocation
was inseverable from the removal order and thus ineffective.
The Court entertained this argument on the merits and
granted relief. It frst assumed “that the severability stand-
ard for statutes also applies to Executive Orders.” Id., at
191. Then it determined that there was “no statutory or
constitutional authority” for the removal order and that the
“Executive Order was insuffcient to [revoke hunting rights]
because it was not severable from the invalid removal order.”
Id., at 193, 195. In other words, the Bands obtained relief
with the same type of argument the state plaintiffs press
here.
In New York v. United States, 505 U. S. 144, 186 (1992), the
State of New York challenged three provisions of the Low-
Level Radioactive Waste Policy Amendments Act of 1985, 99
Stat. 1842, 42 U. S. C. § 2021b et seq. Signifcant for present
purposes, the Court accepted New York's challenge to one
of those provisions, 505 U. S., at 174–177, and rejected its
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Alito, J., dissenting
challenges to two others, id., at 171–174, 183–186. But the
Cour
t did not stop there. Instead, it went on to consider
whether New York nonetheless could obtain relief from the
other two provisions on the ground that those provisions were
inseverable from the unlawful provision and thus unenforce-
able. Id., at 186–187; see Printz v. United States, 521 U. S.
898, 935 (1997) (explaining that New York “address[ed] sever-
ability where remaining provisions at issue affected the plain-
tiffs”). In other words, the Court considered whether New
York could obtain relief from the enforcement of independ-
ently constitutional provisions where a statute contained (A)
two independently constitutional provisions; (B) an unconsti-
tutional provision; and (C) the constitutional provisions were
arguably inseverable from the unconstitutional provision.
In Alaska Airlines, Inc. v. Brock, 480 U. S. 678 (1987), a
group of airlines challenged provisions of the Airline Dereg-
ulation Act of 1978, 92 Stat. 1705, that benefted airline em-
ployees. The airlines argued that (A) enforcement of and
regulations under those provisions injured them; (B) the Air-
line Deregulation Act also contained an unlawful legislative
veto; and (C) the employee-beneft provisions were “ineffec-
tive” because they were inseverable from the legislative veto
provision, 480 U. S., at 680. This Court considered and
unanimously rejected the airlines' argument on the merits
of the severability question, id., at 687–697, but no one ques-
tioned the airlines' standing to seek relief.
The Court's treatment of these arguments in the cases just
discussed is not a modern innovation. In El Paso & North-
eastern R. Co. v. Gutierrez, 215 U. S. 87 (1909), for example,
a railway company challenged a portion of the Employers'
Liability Act of 1906, 34 Stat. 232, that preempted territorial
law more favorable to the railway. The company argued
that (A) a portion of the Act governing U. S. Territories ex-
posed it to liability in the suit; (B) other portions affecting
intrastate commerce exceeded Congress's Commerce Clause
power; and (C) the frst portion could not be applied because

Cite as: 593 U. S. 659 (2021) 703
Alito, J., dissenting
it was inseverable from the unconstitutional portions. The
Cour
t agreed that the interstate commerce aspects of the
Act were unlawful, but held that they were severable from
the territorial provision. 215 U. S., at 93–98.
In Marshall Field & Co. v. Clark, 143 U. S. 649 (1892),
three importers challenged the collection of tariffs under the
McKinley Tariff Act. See Act of Oct. 1, 1890, 26 Stat. 567.
They argued that (A) several provisions of the Act imposed
tariffs on goods they imported; (B) § 3 of the Act unlawfully
delegated legislative powers to the President by permitting
him to suspend the free importation of other types of goods;
and (C) § 3 was inseverable from the provisions imposing
tariffs on the goods they imported. The Court heard the
argument on the merits and, after extensive analysis, re-
jected the non-delegation challenge to § 3. Id., at 680–694.
Because § 3 was lawful, the Court did not “enter upon the
consideration” of whether “other parts of the act, those
which directly imposed duties upon articles imported, would
be inoperative” if § 3 were unlawful. Id., at 694.
Similarly, in the Trade-Mark Cases, 100 U. S. 82 (1879),
this Court reviewed a series of criminal prosecutions for al-
leged violations of an 1876 criminal law prohibiting the
“fraudulent use, sale, and counterfeiting of trade-marks,” id.,
at 92. The Court held that (A) the prosecutions under the
1876 Act could not proceed because (B) an 1870 Act creating
the underlying trademark rights exceeded Congress's pow-
ers under the Commerce Clause, id., at 95–98, and (C) the
1876 Act underlying the prosecutions was inseverable from
the 1870 Act and thus “falls with it,” id., at 99.
There is nothing novel about the state plaintiffs' claims.
What is new and revolutionary is the rule the Court has
concocted to sink those claims.
D
The Court has no real response to the arguments set out
above, so it falls back on the claim that the States forfeited
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704 CALIFORNIA v. TEXAS
Alito, J., dissenting
those arguments because they (1) did not “directly” argue
them
in the courts below, (2) did not present them at the
certiorari stage, and (3) did not raise them in this Court.
See ante, at 674. Justice Thomas makes a forfeiture argu-
ment expressly. See ante, at 683–685, and nn. 1–2 (concur-
ring opinion).
8
There is nothing to any of these arguments.
Consider the States' standing to seek relief from the IRS
reporting obligations. The States identifed these costs in
their complaint, see App. 58–60, Amended Complaint ¶41(i);
offered extensive evidence of these costs on summary judg-
ment, see supra, at 694–695; and argued that these provisions
8
In addition to claiming that the States forfeited the standing theory set
out in this dissent, Justice Thomas's concurrence lists several additional
reasons why we should not address that theory. None is persuasive.
The concurrence invokes the rule that merits decisions that do not dis-
cuss jurisdiction are not of precedential value on jurisdictional issues.
Ante, at 684. This argument is apparently a response to the many cases
(141 years' worth) in which this Court reached the merits of claims struc-
tured like those of the state plaintiffs in the suit at hand. See supra, at
699–703. The suggestion, I take it, is that the plaintiffs in those cases
may have lacked standing and that therefore this Court erred in reaching
the merits. To put the point lightly, that seems unlikely, and even if our
prior decisions have not expressly embraced a standing theory like the
States', there is no reason why a conceptually sound theory should be
rejected just because we never previously saw ft to register express
approval.
Justice Thomas states that “this Court has been inconsistent in
descr ibi ng whether i nseverabi lity is a remedy or mer its questi on. ”
Ante, at 684. But all that matters for present purposes is that insever-
ability is not a standing question. And in all events, the concurrence
elsewhere recognizes that severability is a merits question. See ante,
at 685 (“[S]tanding-through-inseverability could only be a valid theory
ofstanding to the extent it treats inseverability as a merits exercise of
statutory interpretation”); ante, at 684, n. 2 (treating severability as a
merits question under the framework set forth in Steel Co., 523 U. S.,
at 89).
Finally, Justice Thomas suggests that a lack of argument on severabil-
ity “poses a signifcant obstacle to review,” ante, at 684, n. 2, but that fatly
ignores that each party—not to mention many amici—extensively briefed
the severability question in this Court.

Cite as: 593 U. S. 659 (2021) 705
Alito, J., dissenting
cannot be severed from the individual mandate, see, e. g.,
App
. 63, Amended Complaint ¶57 (“The remainder of the
ACA is non-severable from the individual mandate, meaning
that the Act must be invalidated as a whole”). They ex-
pressly advanced that argument in the Court of Appeals, see
Brief for State Appellees in Texas v. United States, No. 19–
10011 (CA5), pp. 23–24, 36–50, and the Court of Appeals ac-
cepted it for standing purposes, see 945 F. 3d, at 384–387.
In this Court, the States argued that they have standing
based on these reporting obligations in their brief opposing
the petition fled by California and the other parties that
intervened to defend the ACA, see Brief in Opposition 17,
and i n their mer its br ief, see Br ief for Respondent/
Cross-Petitioner States 20–22. They specifcally identifed
the consequences of noncompliance to which these injuries
are traceable, id., at 22 (“Employers can be sanctioned by
the IRS for failing to submit adequate information. . . . In
other words, state respondents are compelled under threat
of government sanction to produce [the] forms”). And they
argued that these obligations are not enforceable because
they are inseverable from the individual mandate, id., at 36–
46; see also id., at 26–27 (discussing Alaska Airlines, 480
U. S. 678).
For these reasons, it is clear that the States did not forfeit
the arguments discussed in this dissent.
9
9
If the effect of the Court's decision is dismissal of this action for lack
of Article III jurisdiction, the States may file a new action. See 18A
C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4436
(3d ed. 2017) (“The basic rule that dismissal for lack of subject-matter
jurisdiction does not preclude a second action . . . is well settled”); Hughes
v. United States, 4 Wall. 232, 237 (1866) (“If the frst suit was dismissed
for . . . want of jurisdiction . . . the judgment rendered will prove no bar
to another suit”); Lopez v. Pompeo, 923 F. 3d 444, 447 (CA5 2019). And
in any event, many other parties will have standing to bring such a claim
based on a variety of the ACA's substantive provisions that are arguably
inseverable from the mandate. Our Affordable Care Act epic may go on.
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706 CALIFORNIA v. TEXAS
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***
I
would hold that the States have demonstrated standing
to seek relief from the ACA provisions that burden them and
that they claim are inseparable from the individual mandate.
III
Because the state plaintiffs have standing, I proceed to
consider the merits of this lawsuit. That requires assessing
whether the individual mandate is unlawful and whether it
is inseverable from the provisions that burden the States.
I begin with the question whether the individual mandate
falls within a power granted to Congress under Article I of
the Constitution. The Constitution's text and our precedent
compel the conclusion that it does not.
The Federal Government “is acknowledged by all to be
one of enumerated powers.” McCulloch v. Maryland, 4
Wheat. 316, 405 (1819) (Marshall, C. J., for the Court). Arti-
cle I of the Constitution does not give Congress “plenary
legislative power.” Murphy v. National Collegiate Athletic
Assn., 584 U. S. 453, 471 (2018). Instead, it enumerates cer-
tain legislative powers that, while “sizable,” are not “unlim-
ited.” Ibid.
When the constitutionality of the individual mandate was
frst challenged in NFIB, the Government's primary defense
was that it represented a valid exercise of Congress's power
to regulate interstate commerce, but a majority of the Court
squarely rejected that argument. See 567 U. S., at 572
(opinion of the Court) (“The Court today holds that our Con-
stitution protects us from federal regulation under the Com-
merce Clause so long as we abstain from the regulated activ-
ity”); see also id., at 561 (opinion of Roberts, C. J.) (“The
commerce power thus does not authorize the mandate”); id.,
at 648 ( joint dissent) (“The Act before us here exceeds
federal power . . . in mandating the purchase of health insur-
ance”). Likewise, a majority of the Court rejected the
Government's resort to the Necessary and Proper Clause.
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Alito, J., dissenting
See id., at 560 (opinion of Roberts, C. J.); id., at 655 ( joint
dissent).
I agreed with those holdings at the time, and that
is still my view. The mandate cannot be sustained under
the Commerce Clause or the Necessary and Proper Clause,
and in this suit, no party urges us to uphold it on those
grounds.
While the NFIB Court rejected the Government's Com-
merce Clause argument, a majority held that the mandate
represented a lawful exercise of Congress's taxing power,
see id., at 575 (opinion of Roberts, C. J.); see also id., at 574
(opinion of the Court), and the House and state intervenors
now argue that the mandate can still be sustained on this
ground despite the fact that the “tax” it supposedly imposes
is now set at zero. In NFIB, I did not see how the man-
date's penalty could be understood as a tax, see id., at 661–
669 ( joint dissent), but assuming for the sake of argument
that the majority's understanding was correct at the time, it
is now indefensible.
The Constitution grants Congress the power to “lay and
collect Taxes” “to pay the Debts and provide for the common
Defence and general Welfare of the United States.” Art. I,
§ 8, cl. 1. In NFIB, the Court made clear that “the essential
feature of any tax” is that it “produces at least some revenue
for the Government.” 567 U. S., at 564 (opinion of the
Court). That limitation follows from the text of the provi-
sion. A tax cannot assist in paying debts or providing for
the general welfare or defense if it raises no money. More-
over, the concept of laying and collecting taxes plainly entails
the collection of revenue. At the founding, to “lay” in the
relevant sense meant to “assess; to charge; to impose.” 2 N.
Webster, An American Dictionary of the English Language
(1828) (Webster); see also S. Johnson, A Dictionary of the
English Language (10th ed. 1792) (Johnson) (“To charge as a
payment”). To “collect” meant to “gather money or revenue
from debtors; to demand and receive.” 1 Webster; see also
Johnson (“To gather together”). And a “tax” was a “rate or
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708 CALIFORNIA v. TEXAS
Alito, J., dissenting
sum of money” assessed on certain persons or property. 2
W
ebster. Read together, this language means that Con-
gress is empowered to pass laws that raise revenue.
In recognizing that raising revenue is an “essential fea-
ture” of any exercise of the taxing power, NFIB built on a
substantial line of precedent. See Department of Revenue
of Mont. v. Kurth Ranch, 511 U. S. 767, 778 (1994); United
States v. Kahriger, 345 U. S. 22, 28, and n. 4 (1953); United
States v. Sanchez, 340 U. S. 42, 44 (1950); Sonzinsky v.
United States, 300 U. S. 506, 513–514 (1937); A. Magnano
Co. v. Hamilton, 292 U. S. 40, 46 (1934). Indeed, the state
intervenors and the House have not identifed any statute
ever passed under the taxing power that did not raise reve-
nue. Virginia Offce for Protection and Advocacy v. Stew-
art, 563 U. S. 247, 260 (2011) (“Lack of historical precedent
can indicate a constitutional infrmity . . . ”); see Seila Law,
591 U. S., at ––– – –––; Free Enterprise Fund, 561 U. S., at
505. Given this text, history, and precedent, it is no longer
defensible to argue that the individual mandate can be con-
strued as a lawful exercise of Congress's taxing power, for
as it now stands, the mandate will never “produc[e] at least
some revenue for the Government.” NFIB, 567 U. S., at 564
(opinion of the Court). The penalty for noncompliance is set
at 0% and $0. It cannot raise a cent.
The state intervenors and the House offer several other
arguments to sustain the mandate, but each fails. First,
they suggest that we should interpret the individual man-
date as an exercise of the taxing power based solely on the
precedential effect of the Court's decision in NFIB. But
The Chief Justice's opinion for the Court in NFIB con-
strued the mandate as a tax only because the individual man-
date “produce[d] at least some revenue for the Government.”
Ibid. With that “essential feature” removed, this construc-
tion is foreclosed.
Second, the state intervenors and the House argue that
the Taxing Clause permits Congress to pass a tax and subse-
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Alito, J., dissenting
quently reduce it to zero. But Congress cannot supplement
its
powers through the two-step process of passing a tax and
then removing the tax but leaving in place a provision that
is otherwise beyond its enumerated powers.
Third, they analogize the mandate to a delayed or sus-
pended tax—one that raises no revenue now but could do so
in the future. But § 5000A, as it currently stands, does not
delay or suspend the collection of revenue. Unless Congress
amends that provision and provides for it to begin raising
revenue at some future date, the “tax” is permanently set
at zero.
The state intervenors offer one fnal defense of the individ-
ual mandate: Even if it cannot be sustained under the Com-
merce Clause, Taxing Clause, or Necessary and Proper
Clause, they argue that we should interpret the mandate as
a mere precatory statement. In their view, Congress is free
to urge Americans to take actions that it could not constitu-
tionally require, and that is all it has done here.
This argument fails because the individual mandate is not
a precatory statement. The text of the provision is clear.
It states that every covered individual “shall . . . ensure that
the individual, and any dependent of the individual . . . , is
covered under minimum essential coverage . . . .” 26
U. S. C. § 5000A(a). “Sha l l” ty pica lly means must, not
should. See Kingdomware Technologies, Inc. v. United
States, 579 U. S. 162, 171–172 (2016). And the text confrms
that “shall” means “must” by terming the individual mandate
a “[r]equirement to maintain minimum essential coverage.”
§ 5000A(a); see also NFIB, 567 U. S., at 663 ( joint dissent)
(providing other statutory references to the individual man-
date as a requirement).
Mere precatory provisions, by contrast, typically use the
word “should” to signify that they are not mandatory, e. g., 4
U. S. C. § 8(c) (“The fag should never be carried fat or hori-
zontally, but always aloft and free”), or make clear that they
convey only the “sense of Congress,” e. g., 15 U. S. C. § 7807
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710 CALIFORNIA v. TEXAS
Alito, J., dissenting
(“It is the sense of Congress that States should enact the
U
niform Athlete Agents Act of 2000”). Congress adopted
those very formulations elsewhere in the ACA, see, e. g., 42
U. S. C. § 292s(d) (“It is the sense of Congress that funds re-
paid under the loan program . . . should not be transferred to
the Treasury”), but chose markedly different language when
crafting the individual mandate. Because the individual
mandate is, in fact, a mandate, it cannot be considered a mere
suggestion to purchase insurance.
For these reasons, I conclude that the individual mandate
exceeds the scope of Congress's enumerated legislative
powers.
IV
This brings me to the next question: whether the state
plaintiffs have shown that the provisions of the ACA impos-
ing burdens on them are inseparable from the unconstitu-
tional individual mandate. I conclude that those provisions
are inextricably linked to the individual mandate and that
the States have therefore demonstrated on the merits that
those other provisions cannot be enforced against them.
Accordingly, the States are entitled to a judgment providing
that they are not obligated to comply with the ACA provi-
sions that burden them.
All the opinions in NFIB acknowledged the central role of
the individual mandate's tax or penalty. In brief, the ACA
aimed to achieve “near-universal” health-care coverage. 42
U. S. C. § 18091(2)(D). A major obstacle was the inability of
many individuals to obtain adequate insurance due to the
expensive medical care they were likely to require. To ad-
dress that problem, the ACA included “guaranteed issue”
and “community rating ” provisions. These key provisions
prohibit insurance companies from denying coverage or
charging higher premiums to the individuals described
above. And to compensate for the fnancial impact of these
provisions on insurers, the individual mandate required the
purchase of insurance by persons whose predicted medical
expenses were substantially lower than the premiums they
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Alito, J., dissenting
would pay. See NFIB, 567 U. S., at 547–548 (opinion of Rob-
erts
, C. J.); id., at 595–599 (opinion of Ginsburg, J.); id., at
648–651, 691–696 ( joint dissent); see also King, 576 U. S., at
482 (“Congress found that the guaranteed issue and commu-
nity rating requirements would not work without the” indi-
vidual mandate).
Thus, the guaranteed-issue and community-rating provi-
sions were crucial to the success of the ACA scheme, and a
tax or penalty for noncompliance with the individual man-
date was essential to the ACA's distribution of risks and
burdens. The ACA contains an express fnding on exactly
that point:
“The requirement [i. e., the individual mandate] is essen-
tial to creating effective health insurance markets in
which improved health insurance products that are
guaranteed issue and do not exclude coverage of pre-
existi ng conditi ons can be sold. ” 42 U. S. C.
§ 18091(2)(I) (emphasis added).
See also NFIB, 567 U. S., at 694–696 ( joint dissent) (describ-
ing other statutory provisions declaring that the individual
mandate works “together” with the rest of the ACA).
In NFIB, the Government agreed that the individual man-
date was inextricably related to those crucial provisions.
See id., at 650 (citing Brief for Petitioners, O. T. 2011,
No. 11–398, p. 24). And so did Justice Ginsburg 's opinion.
See 567 U. S., at 597 (“[T]hese two provisions [i. e., the
guaranteed-issue and community-rating provisions], Con-
gress comprehended, could not work effectively unless in-
dividuals were given a powerful incentive to obtain in-
surance”); see also ibid. (quoting congressional testimony
that the insurance market would be “ `drive[n] . . . into ex-
tinction' ” without “ `a mandate on individual[s] to be
insured' ”).
Recognizing this relationship, the joint dissent, after fnd-
ing that the individual mandate and Medicaid expansion
provision were unconstitutional, concluded that other provi-
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712 CALIFORNIA v. TEXAS
Alito, J., dissenting
sions of the ACA could not be enforced. We analyzed this
questi
on under what we described as the Court's “ `well
established' ” two-part test. Id., at 692 ( joint dissent) (quot-
ing Alaska Airlines, 480 U. S., at 684).
Under this test, the frst question was whether the remain-
der of the ACA would “operate in the manner Congress
intended” without the unconstitutional provisions. NFIB,
567 U. S., at 692. And to satisfy this requirement, we ex-
plained, it was not enough that the remaining provisions
could operate by themselves “in some coherent way.” Ibid.
The question, instead, was whether those provisions would
operate as Congress wrote them. Ibid. If this require-
ment was met, the second part of the test asked whether
“Congress would have enacted [the other provisions] stand-
ing alone and without the unconstitutional portion.” Id., at
693; see id., at 692–694.
Applying this test, we concluded that, without the uncon-
stitutional provisions, neither the other ACA provisions we
labeled “major” nor many of those we described as “minor”
could operate as Congress intended. Id., at 697–705. And
we opined that Congress would not have enacted the remain-
ing minor provisions by themselves. Id., at 704–705. We
noted that they had been adopted as part of a complex pack-
age deal and that “[t]here [was] no reason to believe that
Congress would have enacted them independently.” Id.,
at 705.
Nothing that has happened since that decision calls for a
different conclusion now. It is certainly true that the repeal
of the tax or penalty has not caused the collapse of the entire
ACA apparatus, but the critical question under the frame-
work applied in the NFIB dissent is not whether the ACA
could operate in some way without the individual mandate
but whether it could operate in anything like the manner
Congress designed. The answer to that question is clear.
When the tax or penalty was collected, costs were shifted
from individuals previously denied coverage due to their
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Alito, J., dissenting
medical conditions and placed on others who purchased in-
surance
only because the failure to do so was taxed or penal-
ized. The repeal of the tax or penalty has not made the
costs of the guaranteed-issue and community-rating require-
ments disappear. Those costs have obviously been shifted
to others—in all likelihood to individuals who now pay higher
premiums or face higher deductibles or to the taxpayers.
This shift fundamentally changed the operation of the
scheme Congress adopted.
The repeal of the tax or penalty also provides no reason
to doubt our previous conclusion about Congress's intent.
While the 2017 Act repealed the tax or penalty, it did not
alter the statutory fnding noted above, and the 2017 Act
cannot plausibly be viewed as the manifestation of a congres-
sional intent to preserve the ACA in altered form. The 2017
Act would not have passed the House without the votes of
the Members who had voted to scrap the ACA just a few
months earlier,
10
and the repeal of the tax or penalty, which
they obviously found particularly offensive, was their fall-
back option. They eliminated the tax or penalty and left
the chips to fall as they might. Thus, under the reasoning
of the NFIB dissent, the provisions burdening the States are
inseverable from the individual mandate.
The same result follows under the new approach to ques-
tions of partial unconstitutionality that some Members of the
Court have adopted in the years since NFIB. They have
suggested the severability analysis should track ordinary
rules of statutory interpretation. Seila Law, 591 U. S., at
–––, ––– – ––– (Thomas, J., concurring in part and dissenting
in part). In their view, Congress decides whether the provi-
sions it enacts are linked to one another or not, and the an-
swer lies in the ordinary tools of statutory construction.
And everything the NFIB dissenters said points to the same
10
Compare 163 Cong. Rec. H4171 (May 4, 2017) (passage of the Ameri-
can Health Care Act, H. R. 1628) with id., at H10312 (Dec. 20, 2017) (pas-
sage of the Tax Cuts and Jobs Act, H. R. 1).

714 CALIFORNIA v. TEXAS
Alito, J., dissenting
conclusion as a matter of the ACA's text, history, and struc-
ture
. The relevant provisions were passed as a comprehen-
sive exercise of Congress's Commerce Clause and (arguably)
Taxing Clause powers. Those powers cannot justify the in-
dividual mandate. The statutory text says the individual
mandate is “essential” to the overall scheme, 42 U. S. C.
§ 18091(2)(I), and it repeatedly states that the various provi-
sions work “together,” NFIB, 567 U. S., at 694–696 ( joint
dissent). It does not matter that this language appears in a
section entitled “fndings” as opposed to a section entitled
“severability.” Congress can link distinct provisions in any
number of ways, on this view, so long as it does so in the
text. The broader statutory history and structure, more-
over, reinforce that conclusion. The NFIB dissent ex-
plained how the ACA's provisions work in tandem to alter
the insurance market. Id., at 691–706. Here, the individual
mandate requires individuals to obtain “minimum essential
coverage.” 26 U. S. C. § 5000A(f ). The reporting require-
ments, in turn, implement the mandate—indeed, they explic-
itly cross-reference § 5000A—by requiring employers
to provide information about such coverage. §§ 6055(e),
6056(b)(2)(B). And the adult-children coverage requirement
works as part of a cohesive set of insurance reforms central
to the ACA's overall structure, which turns on healthy per-
sons' entry into the market via the individual mandate. See
42 U. S. C. § 300gg–14(a). The individual mandate is thus in-
severable from the provisions burdening the States under
either approach to severability.
Having determined that the individual mandate is (1) un-
lawful and (2) inseverable from the provisions burdening the
state plaintiffs, the fnal question is what to do about it. The
answer largely fows from everything I have already said
above. Relief in a case runs against parties, not against
statutes. Supra, at 692–693. And provisions that are insev-
erable from unconstitutional features of a statute cannot be en-
forced. Supra, at 698–703. No matter how one approaches
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the question, then, the answer is clear: Because the mandate
is
unlawful and because the injury-causing provisions are in-
extricably linked to the mandate, the federal defendants can-
not enforce those provisions against the state plaintiffs.
And the state plaintiffs are entitled to a judgment providing
as much. That answer comports with the reasoning of the
NFIB joint dissent, which made clear that the state plaintiffs
should not be required to comply with the provisions of the
ACA that burden them. See 567 U. S., at 697–707. And it
comports with the remedial approach others have advocated
in recent years. See Murphy, 584 U. S., at 488–491
(Thomas, J., concurring); Seila Law, 591 U. S., at ––– (opinion
of Thomas, J.); Barr v. American Assn. of Political Consult-
ants, Inc., 591 U. S. –––, ––– (2020) (Gorsuch, J., concurring
in judgment in part and dissenting in part). Thus, under
either the framework used in the NFIB joint dissent or the
alternative framework advocated in subsequent cases, the
state plaintiffs are entitled to relief freeing them from com-
pliance with the ACA provisions that burden them.
***
No one can fail to be impressed by the lengths to which
this Court has been willing to go to defend the ACA against
all threats. A penalty is a tax. The United States is a
State. And 18 States who bear costly burdens under the
ACA cannot even get a foot in the door to raise a constitu-
tional challenge. So a tax that does not tax is allowed to
stand and support one of the biggest Government programs
in our Nation's history. Fans of judicial inventiveness will
applaud once again.
But I must respectfully dissent.