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Standing doctrine as escape hatch in Obamacare 2.0?

The latest plot twist in the will-they-or-won’t-they drama surrounding the Affordable Care Act (ACA) concerns the four plaintiffs at the heart of the case currently before the Supreme Court, and raises the question of whether they’ve been dragged into a fight that isn’t really theirs. Thanks to some crackerjack reporting from Stephanie Mencimer in Mother Jones and Louise Radnofsky and Brent Kendall in The Wall Street Journal, we’ve learned that the plaintiffs’ connection to Obamacare is more hypothesized than real. From Mencimer’s account:

Three of the four plaintiffs are nearly eligible for Medicare, meaning their objections to Obamacare will soon be moot. Two of them appear to qualify for hardship exemptions—that is, they are not forced to acquire insurance or pay fines because even with a subsidy insurance would eat up too much of their incomes—so it’s unclear how Obamacare had burdened them. These two plaintiffs seemed driven by their political opposition to President Obama; one has called him the “anti-Christ” and said he won election by getting “his Muslim people to vote for him.” Yet most curious of all, one of the plaintiffs did not recall exactly how she’d been recruited for the case and seemed unaware of the possible consequences if she wins. Told that millions could lose their health coverage if the Supreme Court rules in her favor, she said that she didn’t want this to happen.

The potential problem, from the standpoint of the law’s detractors, is that the legal doctrine of standing limits eligibility to file suit to actors who can show that they have suffered a particularized injury as a result of the challenged policy, and that a judicial remedy exists that can redress the injury. Merely being a concerned citizen who holds strong objections to a law will not suffice to provide access to the federal courts. And plaintiffs bear the burden of establishing standing, which means that even though the Obama administration inexplicably did not raise the issue in its brief, it might still be able to prevail because of it.

Does the consideration of standing transform the battle over the ACA’s legality by offering an escape hatch for justices who find the petitioners’ position questionable yet are hostile to the ACA? The problem with this hypothesis is that the justices who voted to grant review in King v. Burwell already had an opportunity to pass on Obamacare 2.0, but instead they jumped on the opportunity to hear the case. At the time they granted review, the D.C. Circuit Court of Appeals had already agreed to vacate its panel’s ruling in a parallel ACA case and to hear the case en banc, which meant that there was no intercircuit conflict of the type that gives the Supreme Court a more compelling reason to grant review. The justices who voted to review the 4th Circuit case (King) could have waited for the D.C. Circuit’s ruling, and had the D.C. Circuit followed the lead of its panel and struck down the subsidies for insurance purchasers using the federal exchange, the Supreme Court would have had its intercircuit conflict. The fact that at least four justices—the lack of transparency concerning certiorari means we won’t know for decades which justices voted for review—chose not to wait indicates an eagerness to decide this case that has caused no shortage of worry for the ACA’s defenders.

On the other hand, given the 5-4 line-up in the original litigation on the constitutionality of the law’s individual mandate, it is unlikely that more than five justices have agreed to review King. The justices who voted to grant certiorari might be confident that they have the fifth vote lined up, but as was the case in the earlier Obamacare litigation, their confidence might be misbegotten. All it would take to avoid deciding the contentious statutory issue is for Anthony Kennedy or John Roberts to find the escape hatch appealing. And if one or both did, it’s hard to imagine that the liberal justices wouldn’t follow suit.

There is ample precedent for using standing to duck politically vexing questions; one notable example came with the Court’s dismissal in 2003 of an Establishment Clause challenge to the inclusion of “under God” in the Pledge of Allegiance. And using standing would not preclude future challenges, as opponents of the ACA could refile with new plaintiffs who would be able to establish standing more credibly. Conservative justices might feel more comfortable tossing King if they know that they aren’t closing the door to claims relying on the substantive issue at hand in King.

Should defenders of the Affordable Care Act rejoice if standing proves decisive here? Even if all four petitioners are deemed to lack standing–and it’s plausible that only some, but not, petitioners will meet that fate–opponents of the Act could refile with plaintiffs who not only have standing, as noted above, but could present themselves as more publicly compelling figures whose challenge might be viewed more sympathetically. And they might believe that by the time a new case reached the Supreme Court, the composition of that body might change so as to become more inviting to the statutory challenge to Obamacare. But depending on the 2016 election results, the Court could just as easily become more hostile to such challenges. And more delay means more people benefit from the ACA, which raises the political cost of repealing the subsidies. Once the law becomes more firmly entrenched, legal challenges rooted in questionable methods of statutory interpretation will seem increasingly quixotic. So supporters should be happy to see this case disappear, irrespective of why it disappears.

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