More Elusive Than Bigfoot

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Health Care, Obama Administration, Supreme Court

The King v. Burwell case, to be argued in front of the SCOTUS in March, was deliberately crafted to take down the Affordable Care Act. So why is it the crafters couldn’t find better plaintiffs? Jeffrey Toobin writes,

The case is based on the claim that the Obama Administration policy of allowing those who received tax subsidies to buy insurance on the federal exchanges—which cover the thirty-four states that don’t have state-run exchanges—violates the terms of the Affordable Care Act itself. If the plaintiffs succeed in making their case, eight million people are estimated to lose their health insurance, and the A.C.A. itself could subsequently unravel.

But the King case, like any case, can only proceed if the plaintiffs have standing—that is, if they can claim an “injury in fact” from the Obamacare law. Thanks to two recent, excellent pieces of journalism, in Mother Jones and the Wall Street Journal, we now know a great deal about the four plaintiffs. Two are veterans of the Armed Forces and can receive health care through the Department of Veterans Affairs; accordingly, they have no reason to seek the tax subsidies under the law. The other two plaintiffs may make too little money to qualify for the tax subsidies, and, furthermore, one who claimed to be a Virginia resident listed a motel that prohibits long-term stays as her address. In short, the provisions of the Affordable Care Act in question in King v. Burwell may be irrelevant to all four plaintiffs—which would mean that they lack standing to challenge it.

Toobin says that conservative justices for many years have dismissed various challenges from liberals on the grounds that the plaintiffs did not demonstrate the law posed an “injury in fact” on them, and thus they lacked standing.

During the George H. W. Bush Administration, a coalition of environmental and conservation groups sued to stop new federal regulations that limited the application of a section of the Endangered Species Act. Chief Justice Roberts, then the Deputy Solicitor General, persuaded the Supreme Court to throw out the case because the plaintiffs would not suffer direct harm from the new regulations and lacked standing to bring the case. In Lujan v. Defenders of Wildlife, the court held that a “generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.”

I understand they don’t hear cases brought by spotted owls, either. A pity.

The Administration’s lawyers didn’t bring up the issue of standing in their brief, which means they either were asleep at the switch or they’d rather not have the case dismissed in a way that would allow the Right to try again.

This also begs the question of why the Right can’t find better plaintiffs. I occasionally read posts or comments from someone who has a legitimate-sounding story of being worse off because of Obamacare, but somehow the examples the Right chooses to feature never stand up to scrutiny.

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3 Comments

3 Comments

  1. LongHairedWeirdo  •  Feb 13, 2015 @11:51 am

    It’s possible that the administration didn’t bring up standing because they feel the merits are so weak, as well. A loss to the SCOTUS would pretty much prevent another case of a similar nature, just in case another typo is found.

  2. c u n d gulag  •  Feb 13, 2015 @3:48 pm

    I agree with LHW.
    While I have yet to be impressed by Donald B. Verrilli, Jr., the President’s Solicitor General, I can’t believe that he and his team are so stupid as to have missed this opportunity to dismiss this case.

    I think they let the “standing” of the standers, stand, because they thought the SCOTUS would throw the case out, and any new cases will take months or years to prepare.

    However, betting on any consistency as precedent from previous cases with the 3 sociopaths, and the two swing Justices – Roberts and Kennedy – is betting the house in what may very well be a rigged game.
    Let’s hope not!

  3. Dan  •  Feb 14, 2015 @7:03 pm

    They want license, not liberty. Liberty is a system of respecting other people’s rights, license is doing what feels good (you know, what they dislike about the leftist hippies).



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