A New Surprise Twist In The Big Anti- Obamacare Lawsuit Before SCOTUS?

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February 12, 2015 6:00 a.m.
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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.

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