Mr. Stone said the Texas law “is capped at much less than that.”
“Yeah,” Chief Justice Roberts said, a little irritated. “My question is what we call a hypothetical.”
Justice Kagan said Texas should not be rewarded for drafting a clever law.
“The fact that after all these many years, some geniuses came up with a way to evade the commands of” an important precedent, she said, and “the even broader principle that states are not to nullify federal constitutional rights and to say, ‘Oh, we’ve never seen this before, so we can’t do anything about it’ — I guess I just don’t understand the argument.”
Solicitor General Elizabeth B. Prelogar, representing the federal government, said the Texas law was designed “to thwart the supremacy of federal law in open defiance of our constitutional structure.”
“States are free to ask this court to reconsider its constitutional precedents,” she said, “but they are not free to place themselves above this court, nullify the court’s decisions in their borders, and block the judicial review necessary to vindicate federal rights.”
Several justices, including ones who had shown sympathy for the providers’ challenge, seemed wary of allowing the federal government to sue states for enacting laws said to violate the Constitution.
“You say this case is very narrow, it’s rare, it’s particularly problematic,” Chief Justice Roberts said. “But the authority you assert to respond to it is as broad as can be.”
Justice Kavanaugh said there were potential ways to allow the providers’ case to proceed.
“Your case, by contrast,” he told Ms. Prelogar, seems “just different and irregular and unusual, and we don’t know where it goes.”