The heightened attention given to the plaintiffs in the
King v. Burwell challenge to subsidies on the federal health insurance exchange created by Obamacare has caused at least one health law expert to
find serious issues for the court to consider about the basis for this case. In a follow-up post, Nicholas Bagley explained
what the court should do about it, since "[d]oing nothing in the face of continued silence from the plaintiffs is no longer a tenable approach."
The doing nothing approach is certainly an option available to them. They could allow the case to proceed, but the potential standing issues are so apparent that they are bound to come into and possibly dominate much of the oral arguments. That's a practical concern. But there's much more for the court to think about beyond that.
Is the Court really untroubled by the very real possibility that the plaintiffs have used inaccurate or misleading declarations to manufacture a federal case? Or that the case may have become moot as to some of them? This isn't your garden-variety suit; it's precisely the sort of high-stakes ideological clash that—absent a plaintiff with a bona fide injury—standing doctrine is supposed to filter out. I'm with Gerard Magliocca in thinking that "[i]t 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."
Doctrinally, too, the do-nothing approach would be anomalous. It would suggest that a defendant's failure to object to a plaintiff's factual averments could affect the standing inquiry. That, in turn, would license the parties to collude to create standing ("I'll sue you, don't contest my declaration, and we’ll get an advisory opinion from the courts."). Although the courts can't and shouldn’t confirm the veracity of every sworn declaration, there must come a point at which sufficient doubts have been raised to warrant further inquiry. In my judgment, we've reached that point in King.
Another possibility is that they "DIG" the case—
dismiss it as improvidently granted because "the case is so beset with standing problems that it's an unattractive vehicle to resolve the legality of the IRS rule." That would be a perfectly respectable way out for at least a few of the justices (Roberts? Kennedy?) who might actually be regretting that this turkey of a case has been put on their docket.
It's not actually the court's job to determine standing. It's the court's job to decide the case, but that decision can only come—should only come—when there's actually a real case. To that end, Bagley advises, the court should demand a supplemental brief from the plaintiffs' attorneys proving that at least one of them has a legitimate case. It's hard to imagine that a court that really has any concern for its legitimacy wouldn't take one of these actions. If they don't, it could signal some very bad news for Obamacare come June, when the decision is due to be handed down.