Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
King v. Burwell: Standing Pat Or Standing Corrected
The issue of standing to sue has prompted the latest commotion in King v. Burwell, where the Petitioners ask the Supreme Court to deny low-income families the tax subsidies granted under the Affordable Care Act to help them purchase health insurance. To bring a lawsuit in federal court, plaintiffs must have standing to sue. The prerequisite for standing is injury. Plaintiffs challenging a federal law thus must show either that it caused them injury or that they face an imminent risk of injury. If the risk abates or is too speculative, the litigants have no standing, and the court therefore no longer has jurisdiction.
The plaintiffs (now Petitioners) in King asserted standing based on a roundabout explanation of the harm they would suffer if they received this tax relief. The subsidies, they claimed, would lower their cost of insurance below eight percent of their income, the threshold for the individual mandate to apply. They therefore would be required under the ACA to purchase health insurance or pay a tax penalty—a sufficient injury to confer standing.
Recently, however, some enterprising investigative reporters have raised doubts whether the subsidies would in fact cause any of the plaintiffs in King to be subject to the individual mandate. Two of the four plaintiffs, it turns out, are veterans. Eligibility for VA benefits, or at least enrollment in the program, would exempt them from the individual mandate. A third plaintiff has relocated since the case was filed, and geographic variation in the cost of insurance could affect whether the subsidies put her under the eight percent threshold. And reporters have questioned whether the fourth plaintiff has so little income that she would be exempt from the mandate even with the subsidies.
The General Counsel of the Competitive Enterprise Institute, which is funding the challenge, issued a dismissive response. “The factual issues regarding the plaintiffs’ standing,” he said, “were examined at the outset of this case, and we stand by the affidavits they submitted.” That response is far too cavalier. First, the declarations of the two Vietnam veterans each averred without qualification that, “I am not eligible for health insurance from the government or any employer.” If, as the press reports indicate, both are eligible for Veterans’ benefits, that statement is wrong. Second, the plaintiffs submitted their declarations in September 2013, claiming harm based on their projected income for 2014. But now, in 2015, they—and only they—know what they made last year. They can readily address whether they were or were not subject to the individual mandate, and whether they will be subject to it in 2015.
Nor is it valid to suggest, as the CEI General Counsel did, that standing to sue is already settled because the Government contested the issue “at the district court and appellate levels, and it lost each time.” Those rulings rested on declarations that have now been called into question. The Government could not be expected to have looked behind those declarations. One can only imagine the wails that would have emanated from the Petitioners’ camp if the Government, for example, had sought to obtain their records from the Veterans Administration.
Suggestions that the Court must accept the jurisdictional allegations of the complaint as true (even if they aren’t) would annul the obligation of candor to the Court. In Tiverton Bd. of License Comm’rs. v. Pastore, 469 U.S. 238, 240 (1985), the Court “remind[ed] counsel that they have a ‘continuing duty to inform the Court of any development which may conceivably affect the outcome’ of the litigation.” In particular, the Court noted, “When a development after this Court grants certiorari . . . could have the effect of depriving the Court of jurisdiction due to the absence of a continuing case or controversy, that development should be called to the attention of the Court without delay.” Id. That duty has no less force where the new development is the belated revelation that prior filings in the case may have relied on erroneous statements of fact.
The recent news stories on standing are thus troubling, even aside from the inference that the wispiness of the asserted injuries raises regarding the political rather than remedial nature of the lawsuit. Only Petitioners can clear up the issue of standing. The reply brief they filed today, Wednesday, February 18, in King, provided an opportunity to address whether and how they establish standing, or to request further briefing on the issue. They failed to do so. As a result, the uncertainty regarding the Court’s jurisdiction could well persist and perhaps intensify, an unfortunate outcome for the parties, the Court, and the millions of low income families relying on the tax subsidies in order to afford health insurance.
Rob Weiner, formerly Associate Deputy Attorney General in the United States Department of Justice, is a partner at Arnold & Porter LLP. You can reach him by e-mail at robert.weiner at aporter.com