No, hating the law isn't enough.
The plaintiffs in
King v. Burwell, the right-wing challenge to Obamacare the Supreme Court will hear on March 4, have finally come under
media scrutiny, and the results have been fairly brutal for proponents in the case. Bottom line, there are serious questions as to whether any of the people claiming they are harmed by the law actually qualify to make that claim. Law professor Nicholas Bagley has been
pondering that question and what it means for the challenge. To recap, the plaintiffs are suing because they say the IRS is interpreting the law incorrectly by allowing subsidies, or tax credits, to people buying insurance on the federal insurance exchange because Congress intended to restrict credits just to states that created their own exchanges (an assertion contradicted by all the lawmakers and staff who wrote the law). From there it gets even more convoluted.
The four plaintiffs are residents of Virginia, which didn't establish its own exchange. If the IRS rule were invalidated, they would be ineligible for tax credits. Without tax credits, they say, they would have to spend more than 8% of their income to buy a bronze plan through Healthcare.gov—which would make them eligible for an exemption from the penalty for failing to get insurance. That exemption is what they want out of the lawsuit.
To unpack the standing question, we've got to take a close look at what the plaintiffs have alleged and what the newspapers have reported. As we do that, though, keep in mind that standing is often confused with a related concept called mootness. Both are relevant here. A plaintiff's standing is measured at the moment she files her lawsuit. In cases seeking an injunction—and that's what the King plaintiffs want—a plaintiff has standing if she has a reasonable, non-speculative basis for thinking that she will suffer an injury at the hands of the defendant. But a case that was proper when filed can become moot if, during the litigation, it becomes apparent that the threatened injury will never materialize.
Bagley then examines what has been reported about each of the plaintiffs. David King might be the biggest problem for his lawyers, because he might have lied when he filed his declaration in the case. He asserted that he was "not eligible for health insurance from the government or any employer" at the time. But, as a Vietnam vet, he was eligible for VA insurance. In fact, he
told the
Wall Street Journal that he'd been to a VA Medical Center and had a VA identification card that he used primarily for getting veterans' discounts at stores. How he used that card doesn't matter, it is proof of his eligibility. Whether he had enrolled at the VA at the time that he filed in this case is the question—if it was before he filed, then he doesn't have standing and if it was after, the case is moot for him as a plaintiff. The same pretty much goes for David Hurst, whose wife told the
WSJ is also a Vietnam vet, also eligible for VA medical care. His lawyers say he never enrolled, which means he's 63 and never had health issues that required care and he never sought free care at the VA. Possible, but likely?
Then there's Brenda Levy, the one who doesn't want insurance taken away from people as a result of this case, and who doesn't remember how she got added to the case in the first place. Levy may or may not have had standing at the time she filed—her 2014 income might have been low enough to make her exempt from the mandate. She'll also be 65 and eligible for Medicare in June, possibly before the ruling is handed down, which would make her involvement in the case moot. The final plaintiff, Rose Luck, is the biggest unknown. She said when she filed that she expected to make $45,000 for 2014, but she also listed her residence as a short-stay motel, which she has moved on from. It's hard to imagine a scenario in which someone living in motels making $45,000 a year. But her case is purely speculative, since no one seems to know where she is now, except maybe her lawyers. As Bagley says, "[i]f it weren’t for the problems with the standing of the other three plaintiffs, I might be inclined to give Luck the benefit of the doubt."
But there are definite problems with the standing of the other three, which calls into doubt whether the lawyers vetted any of these people before signing them up. Bagley will write more on Tuesday about just what the Supreme Court should do about, but others have speculated along the lines of a dismissal of the case. The government hasn't yet questioned the standing of the plaintiffs, but it still could. This could be the easiest way for a justice, like, say Kennedy or Roberts, to do away with a case that is increasingly turning into a train-wreck for the court.