The newly refilled Supreme Court has been hearing arguments in a challenge to portions of Obamacare this week. The normally silent Associate Justice Clarence Thomas has been a bit more chatty lately than we’re used to seeing and the current case was no exception. Lest the title of this article create confusion, I should make it clear that Thomas wasn’t directly challenging mandates requiring the wearing of face masks. He was using such mandates as an example in parallel to the current issue under debate When asking a question about the Obamacare mandate saying that all Americans have to have health insurance or face a tax penalty, he asked the California Solicitor General (who is defending Obamacare) whether or not a person can claim to show damages if no actual penalty is applied. This is interesting for a couple of reasons that I’ll get to in a moment. (NBC News)

Justice Clarence Thomas turned to the ongoing pandemic when interrogating the issue of standing in the Affordable Care Act case at the Supreme Court on Tuesday.

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

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

If we only look at this exchange in terms of the actual case being argued, it makes perfect sense. In order to prevail in an effort to strike down a law, the plaintiffs will have to show that they suffered harm in some form or another. The “harm” from the Obamacare mandate was previously a tax penalty. Congress didn’t get rid of the penalty, but they did lower the cost of it to zero dollars. (If you’re getting confused already, don’t feel bad. You’re not alone.) So by not having insurance, you are subject to a penalty under the law, but the penalty now costs nothing. The court will doubtless take that into consideration when determining if there’s a case to be made here. It sounds as if Thomas might be leaning toward saying there is no harm without the threat of enforcement.

It’s quite interesting, however, that Thomas chose as a parallel example a hypothetical face mask mandate. It shows that such mandates are clearly on his mind and he’s aware of the ongoing debate over onerous state and municipal mandates being issued in the name of taming the novel coronavirus. This brings us back to a question we’ve wrestled with here before. If the government at any level issues a face mask mandate but provides no enforcement provision, could a citizen challenge the mandate in court?

Perhaps more to the point, why would anyone bother challenging a mandate when there are no consequences for defying it? If the governor of your state says that you must always wear a mask when going outdoors and you respond by telling him to stick his mask where the sun doesn’t shine, what is he or she going to do about it? The answer is obviously nothing. People who don’t wish to comply simply won’t. And the general opprobrium that Justice Thomas mentioned isn’t going to be enough to change many people’s behavior, particularly in the current social and political climate.

But that leaves the government in a touchy position. They’re made to look weak and ineffectual. So just as some states have done in the past, they may decide to attach a penalty for noncompliance to the order. And if they do that, it sounds as if Clarence Thomas is hinting that the court would be open to the idea that a plaintiff could indeed prevail in court when challenging such a mandate. That could be particularly true when you consider the fact that at least Obamacare was passed by Congress and signed into law by a president. These executive orders we’re discussing don’t have that sort of backing.