Health Law Challenge Tests Supreme Court’s Firmness on Right to Sue

February 24, 2015

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Source: The New York Times

The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: “What’s it to you?”

To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.

Which brings us to the four plaintiffs in the latest threat to President Obama’s health care law, to be heard next week. Recent news reports have raised the question of whether any of them has a dog in the fight.

But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do. The court is sometimes accused of being opportunistic in using the standing doctrine to avoid legal questions it wants to duck, but ignoring the issue when it is eager to weigh in.

In 2013, by a 5-to-4 vote, the court said journalists, lawyers and human rights groups had no standing to challenge a secret government surveillance program because they could not show they had been spied on. The decision may mean that the court will never rule on the program’s constitutionality.

A few months later, again by a 5-to-4 vote, the court ducked the question of whether there is a constitutional right to same-sex marriage, dismissing a case from California on standing grounds. The effect of the ruling was to buy the court a couple of years, and it will return to the question this year.

The same week it dismissed the California case, the court chose to decide one on affirmative action in the face of serious doubts about the standing of the student who had brought the case. “The Supreme Court did not address the issue of standing,” a puzzled appeals court said last year, “although it was squarely presented to it.”

The court’s leading student and proponent of the standing doctrine is Chief Justice John G. Roberts Jr. It is a neutral legal principle untainted by ideology, he wrote in a 1993 law review article.

“It restricts the right of conservative public interest groups to challenge liberal agency action or inaction,” he wrote, “just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction.”

Standing continues to engage the chief justice, and he alludes to it in unlikely settings.

In his year-end report on the state of the federal judiciary, which was issued on Dec. 31, 2014, and was devoted mostly to announcing that the Supreme Court’s website would start posting briefs “as soon as 2016,” he digressed a little.

“Under our constitutional scheme,” he wrote, “the courts are neutral arbiters of concrete disputes that rely on parties with genuine grievances to initiate the process and frame the issues for decision.”

It is unclear how that principle will apply in the health care case, King v. Burwell, No. 14-114, given reports in The Wall Street Journal and Mother Jones about the four plaintiffs. The argument, on March 4, should provide some clues.

The central question in the case is whether the Affordable Care Act allows the government to provide tax subsidies to help people buy health insurance in the roughly three dozen states that have decided not to establish the insurance marketplaces known as exchanges.

That is a significant question, but it is not clear who should be allowed to raise it.

As a general matter, of course, subsidies make people better off, not worse. People who are better off are in no position to complain.

But the plaintiffs, all from Virginia, said the subsidies hurt them by making them subject to the health care law’s requirement that they buy insurance or pay a penalty. If not for the subsidies, they said, they would have been eligible for a hardship exemption from the penalty.

The appeals court ruled for the administration on the meaning of the law, but it said the plaintiffs had standing to raise the question. “Although it is counterintuitive,” the court said, “the tax credits, working in tandem with the act’s individual mandate, impose a financial burden on the plaintiffs.”

But news reports suggested that some of the plaintiffs were eligible for health care through the Department of Veterans Affairs, meaning they would not be subject to the penalty. Other plaintiffs may be poor enough to qualify for the hardship exemption.

The Obama administration has not challenged the plaintiffs’ standing in the Supreme Court. But it is up to the courts, not the parties in a lawsuit, to determine standing.

And in theory, at least, a court should never decide a case unless it has determined that a plaintiff has standing. In legal jargon, standing is so important as to be considered “jurisdictional.”

“Federal courts are courts of limited jurisdiction,” the acting United States solicitor general explained to the Supreme Court in a 1990 argument. “The presumption is that they are without jurisdiction, and the plaintiff must affirmatively prove that he has standing to invoke the power of the court.”

That lawyer now serves as chief justice of the United States.

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