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Thomas poses mask mandate question during Supreme Court ACA hearing

Would people "have standing to challenge the mandate to wear a mask?" Thomas asked.
Image: Donald Trump
Supreme Court Justice Clarence Thomas at the White House on Oct. 26.Patrick Semansky / AP file

Justice Clarence Thomas turned to the coronavirus pandemic Tuesday as he interrogated the issue of standing in the Affordable Care Act case at the Supreme Court.

"Putting the chief justice's question in today terms: I assume that in most places there is no penalty for wearing a face mask or a mask during Covid, but there is some degree of opprobrium if someone does not wear it in certain settings," Thomas said. "What if someone violates that command — let's say it's in similar terms to the mandate here, but no penalty — would they have standing to challenge the mandate to wear a mask?"

Michael Mongan, California's solicitor general, who is defending Obamacare, argued that without a threat of enforcement, there can be no harm.

The health care law has been challenged by 18 Republican states led by Texas, which claim that it's unconstitutional for the federal government to command people to purchase health care. The health care law's "individual mandate" imposes a tax penalty on people who don't have health insurance, but Congress lowered the mandate to $0 in 2019, which Mongan argued undercuts the Republican states' argument.

Thomas, who has historically been silent from the bench sometimes for years at a time but has begun asking more questions in the court's remote pandemic hearings, interjected to ask whether that theory is in keeping with past cases that had found that "even without a penalty, you could have a chilling effect."

Mongan said that while there are multiple theories of harm surrounding the case, the plaintiffs hadn't offered a theory that harm was inflicted by a "toothless" individual mandate different from previous attempts to undermine the suit.

About 20 million Americans depend on the Affordable Care Act for their health insurance; the Supreme Court upheld the law when it was challenged in 2012, but it is now considering it again with a solid 6-3 conservative majority.