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Standing

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The U.S. Supreme Court begins its February-March argument session today.  The big news will be on the last day, Wednesday, March 4, the Obamacare subsidy case, King v. Burwell.

The main issue of that case is, of course, off-topic for the blog, and CJLF takes no position on it.  Yet the law is a seamless web, and we always watch Supreme Court cases for points that may spill over and have an effect on our cases.  Adam Liptak reports for the NYT that the issue of standing may pop up in this case.

Standing is an issue in two of CJLF's current cases, HCRC v. USDoJ and Winchell & Alexander v. Beard.  See this post two weeks ago.  Liptak's article begins:

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.
But a very complex body of law lies beneath that seemingly simple question.
Will the Supreme Court actually reach the standing issue in King v. Burwell?  Liptak explains (emphasis added):

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."
In this case, then, the standing question is "fact bound," and what news reports suggest is not normally how an appellate court gets the facts that form the basis of its decision.  In cases that have been through a full trial, the "facts" on appeal are almost always those found by the trier of fact (trial judge or jury).  In cases where a party's case or defense has been thrown out without a trial, the "facts" are assumed to be the version alleged by the party thrown out.

If the Court is concerned about standing, it could remand for further factual development, but that would mean further delay in a case of great national importance.  It will be interesting to see what the Court does with this.

For those interested in other aspects of the case, Amy Howe has this plain-English explanation at SCOTUSblog.

2 Comments

Not only will any ruling that the Court issues regarding standing have a potential "spill over" effect on cases that CJLF is directly concerned with. But, assuming the Court addresses the merits in King, the particular canons of statutory construction and methodology that each Justice relies upon to determine the meaning of the contested language might have far-reaching consequences in all future cases (civil and criminal) involving questions of statutory interpretation.

There are also broad questions involving separation of powers and federalism that are lurking in the background in King that, depending upon how they are resolved, could impact many substantive and procedural issues that arise in future criminal cases.

So, yes, CJLF should keep a very close eye on King. Something that I know it will do.

Challengers have standing to sue under Flast v. Cohen.

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