Standing the Test in Health Care Challenge

       A group of Arizona taxpayers filed a lawsuit against the state’s law giving tax credits to families for tuition at private schools. After finding that the bulk of the credits went to families with students at religious schools, the Ninth U.S. Circuit Court of Appeals ruled that the program violated the First Amendment’s prohibition against government establishment of religion.
       At the Supreme Court, however, the taxpayers discovered that they had no legal standing to bring the case. By a 5-4 vote, the court held in Arizona Christian School Tuition Organization v. Winn (2011) that the taxpayers had suffered no legal injury because their tax dollars were not going to the religious schools. In a sharp dissent, however, Justice Elena Kagan said the majority’s use of the standing issue to squelch the suit contradicted at least five earlier decisions in which the court had entertained similar taxpayer challenges.
       Kagan’s dissent underlines the frequently heard critique that standing is a flexible legal doctrine that justices invoke when they do not want to hear a case and ignore when they do.  That issue may be at play this week [March 4] when the court hears its third politically charged challenge to the Affordable Care Act (ACA), President Obama’s signature health reform law.
       The case before the court stems from a suit filed by four Virginia taxpayers who say they do not want to have to buy health insurance as required under the ACA’s individual mandate. The plaintiffs are challenging the Obama administration’s regulation adopted by the Internal Revenue Service (IRS) in 2011 that extends subsidies to low- and middle-income individuals who need help to afford health insurance from the newly created federal health exchanges.
       The plaintiffs in King v. Burwell argue that the ACA provides those subsidies only in those states — not including Virginia — that have established their own health exchanges instead of relying on a federal exchange. The administration argues that the plaintiffs’ reading of the act is wrong, illogical, and unsupported by any legislative history in Congress.
       Before getting to the merits, however, the plaintiffs have to have legal standing to bring the case. Without those subsidies, they say they would be exempt from the individual mandate because of the so-called unaffordability exemption. The administration questioned their standing in two lower courts, but both lower courts found the plaintiffs had standing before going on to rule for the administration. At the Supreme Court, the administration said in October that it would not question the plaintiffs’ standing.
        New information uncovered by reporters for Mother Jones magazine and The Wall Street Journal raises doubts that the plaintiffs have any concrete stake in knocking out the subsidies. It turns out that the lead plaintiff, David King, is a Vietnam veteran who, according to the Journal, has a VA card and has received health care through the VA. A second plaintiff, Douglas Hurst, is described by his wife on social media as a veteran as well, according to the team of Journal reporters: Louise Radnofsky, Jess Bravin, and Brent Kendall.
       A third plaintiff, Rose Luck, appears to qualify for the unaffordability exemption, according to information pulled together by the Mother Jones writer Stephanie Mencimer. And Mencimer says that the fourth plaintiff, Brenda Levy, will qualify for Medicare when she turns 65 in June.
       Plaintiffs in public policy lawsuits are mere props, of course, but it is telling that the libertarian Competitive Enterprise Institute found no better plaintiffs for the suit that it is paying for and masterminding. King and Luck both voiced virulent anti-Obama sentiments to Mencimer; Hurst’s wife vented in like vein on social media. As for Levy, her views appear to be ambivalent. “I don't like the idea of throwing people off their health insurance,” she told Mencimer.
       The Journal probed whether lawyers on the case had vetted their clients before submitting the declarations that the lower courts relied on to find standing. They all claimed due diligence. Michael Carvin, the lawyer who will argue the case at the Supreme Court, disclaimed any responsibility. “My particular role was not a lot of direct involvement with the plaintiffs,” he told Mencimer.
       As for due diligence, government lawyers get poor marks for not uncovering any of these issues. Having waived the issue, Solicitor General Donald Verrilli is seemingly estopped from bringing it up on Wednesday. But any of the justices could ask. A court can raise a standing issue on its own, just as the Supreme Court itself did in the Arizona case.
       The Roberts Court conservatives have been opportunistic in using the standing doctrine. The conservative five took a strict view of standing when they blocked a challenge to National Security Agency (NSA) spying on human rights lawyers and journalists in 2013. But they raised not a peep during the same term about the questionable standing of Abigail Fisher in challenging affirmative action at the University of Texas.
       Tossing the King plaintiffs would leave the issue unsettled and force the Obamacare opponents to find others. In the Arizona case, Justice Anthony M. Kennedy said, in effect, no problem. Federal courts could adjudicate the issues, he said, in a case by plaintiffs who had suffered “real injury.” But in the modern litigation environment, Kennedy said, courts “must be more careful to insist on the formal rules of standing, not less so.”