WASHINGTON — New revelations raise questions about whether the challengers in the major anti-Obamacare lawsuit before the Supreme have the legal right to sue. Two reports this week by the Wall Street Journal delved into the backgrounds of the challengers and found some evidence that each one of the four plaintiffs may be unharmed by the law.
That has caused legal experts to wonder: Could the Supreme Court throw out the King v. Burwell case for lack of “standing“? And should it?
“I think it’s safe to say the Court should at least consider it,” said Nicholas Bagley, a law professor at the University of Michigan who supports the government’s view in the case. “There have been serious questions raised about whether these plaintiffs have any ongoing injury that a decision in their favor would redress.”
At issue is whether the tax subsidies are available to Americans in the three-dozen states that use the federal Obamacare exchange. The plaintiffs say the subsidies subject them to the individual mandate to purchase insurance or pay a tax penalty.
According to the Journal, the lead plaintiff, David King, served in the Army during the Vietnam War, likely making him eligible for free insurance from the Department of Veterans Affairs. A second plaintiff, Doug Hurst, is also a Vietnam veteran, his wife has indicated. A third plaintiff, Rose Luck, has faced questions from the government as to whether her low income makes her liable for the tax penalty under Obamacare for failure to have insurance. The fourth plaintiff, Brenda Levy, turns 65 in June which makes her eligible for Medicare, exempting her from the mandate.
“It would be highly improper (and embarrassing) for the Court to decide the merits of such an important case when there are doubts about whether this is actually a ‘case or controversy’ under Article III,” Gerard N. Magliocca, a law professor at Indiana University, wrote at the law blog Balkinization.
It’s a uphill climb for the government because the case can proceed as long as any one of the plaintiffs has standing, legal experts said. The Obama administration has not asked for a dismissal on standing — it’s not currently on the Court’s agenda during oral arguments set for March 4. Some Obamacare legal defenders privately worry that tossing the case now would only prolong the drama as better-suited plaintiffs could come forward and sue.
Democrats, too, are skeptical.
“What I read is that there are still plaintiffs who have standing,” Oregon Sen. Ron Wyden, the top Democrat on the Finance Committee, told TPM on Tuesday. “So it seems to me that we then get into the core issues.”
Bagley stressed that it’s far from clear the standing questions are serious enough for the Supreme Court to throw out the case. But he said the recent reports put the onus on the Court to explore whether to add time during oral arguments to probe the plaintiffs on standing, because if the justices lack jurisdiction to hear the case they are legally obligated to dismiss it. That’s true whether or not the government asks the justices to look into standing.
Republicans, who want the Supreme Court to gut Obamacare, say the merits of the case will be settled one way or another.
“It doesn’t make any difference what the Court decides [on standing] because there’s a number of suits, so the issue is going to be decided,” Senate Finance Chair Orrin Hatch (R-UT) told TPM on Wednesday.
Recent reports in Politico and Mother Jones reveal that King and his fellow plaintiffs despise Obama, which Obamacare supporters say raises questions about their intentions. But that’s irrelevant to the legal issues at play.
“The fact that they hate the president — that’s not relevant to standing,” Bagley said.
As laws go, O’care isn’t perfect, but it is designed to do what laws should do, help the governed.
But it is associated with a President that a significant section of the population has been taught to hate.
Is it any wonder then, that the motley collection of Birthers, Birchers and Besmirchers that constitute the current iteration of the GOP wants to do away with it?
The 4th plaintiff, Ms Levy, is a substitute teacher who likely makes very little money, and may well lack standing even before she turns 65. So standing appears to be absent in all cases. As the article notes, courts are obligated to consider standing whether or not the defendants raise that issue.
Now one might ask why the government didn’t raise that issue in the lower courts. Were they so confident of winning that they didn’t bother to investigate the plaintiffs? Since reporters were able to uncover this information, it seems the government could have done so rather easily. Regardless, the information is now out there and the Court is required to consider it.
As far as finding other plaintiffs-sure they could, but those cases would have to restart from zero and could well come before different appellate who would not create the conflict that got this case to the Supremes. If the government really wanted to, they could simply grant waivers to any plaintiff who sued. Would that kill the mandate? Practically speaking, no, because the number of people who would actually go so far as to sue is small. Frankly, I will bet that of the 10 million or so who have gained insurance under the ACA, the vast majority love having it and would keep it, mandate or no.
I want to know how standing is possible for anybody. How has anybody suffered a wrong as a result of the challenged language.
“As far as finding other plaintiffs-sure they could, but those cases would have to restart from zero and could well come before different appellate who would not create the conflict that got this case to the Supremes.”
Exactly. I can’t wrap my head around the government saying they have such a strong case they should proceed even if the plaintiffs don’t have merit. That should be one more piece of evidence that the challenges are bogus, and also, the longer people have the benefit of the ACA, and the more people who have it, the more horrific it would be to snatch it away on a very weak technicality like this.
I do agree that somebody with standing would make it eventually ( how one is hurt by getting subsidize is still strange to me…at least in any real practical way). However, the lower courts should have thrown this case out then, it is their job to do so. Establishing standing should not even be an issue at this stage of the game. Even ignoring that this lawsuit should never be in the first place.