New York Times
Health Care Challenge Tests Court’s
Firmness on Right to Bring Suit
By
Adam Liptak, 24 February
WASHINGTON
— 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.
Which brings us to the four plaintiffs in the latest threat to
President Obama’s health care law, to be
heard next week. Recent news reports
have raised the question of whether any of them has a dog in the fight.
But it is
not clear that the Supreme
Court will address that question, which could determine the
outcome of the case. The court’s recent decisions have been inconsistent and
provide few clues about what it might do. The court is sometimes accused of
being opportunistic in using the standing doctrine to avoid legal questions it
wants to duck, but ignoring the issue when it is eager to weigh in.
In 2013, by a 5-to-4 vote, the court said journalists, lawyers and human rights groups had no
standing to challenge a secret government surveillance program because they
could not show they had been spied on. The decision may mean that the court will never rule on the program’s
constitutionality.
A few
months later, again by a 5-to-4
vote, the court ducked
the question of whether there is a constitutional right to same-sex marriage,
dismissing a case from California on standing grounds. The effect of the ruling was to
buy the court a couple of years, and it will return to the question this year.
The same
week it dismissed the California case, the court chose to decideone on affirmative action in the face of serious doubts
about the standing of the student who had brought the case. “The Supreme Court
did not address the issue of standing,” a puzzled appeals court said last year, “although it was squarely presented to it.”
The
court’s leading student and proponent of the standing doctrine is Chief Justice John
G. Roberts Jr. It is a
neutral legal principle untainted by ideology, he wrote in a 1993 law review
article.
“It
restricts the right of conservative public interest groups to challenge liberal
agency action or inaction,” he wrote, “just as it restricts the right of
liberal public interest groups to challenge conservative agency action or
inaction.”
Standing
continues to engage the chief justice, and he alludes to it in unlikely
settings.
In his
year-end report on the state of the federal judiciary, which was issued on Dec.
31, 2014, and was devoted mostly to announcing that the Supreme Court’s website
would start posting briefs “as soon as 2016,” he digressed a little.
“Under
our constitutional scheme,” he wrote, “the courts are neutral arbiters of
concrete disputes that rely on parties with genuine grievances to initiate the
process and frame the issues for decision.”
It is
unclear how that principle will apply in the health care case, King v. Burwell, No. 14-114, given reports in The Wall Street
Journal and Mother Jones about the four plaintiffs. The argument, on March 4,
should provide some clues.
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.”
“Federal
courts are courts of limited jurisdiction,” the acting United States solicitor
general explained to the Supreme Court in a 1990 argument. “The presumption is
that they are without jurisdiction, and the plaintiff must affirmatively prove
that he has standing to invoke the power of the court.”
That
lawyer now serves as chief justice of the United States.
A version of this article appears in print on February
24, 2015, on page A13 of the New
York edition with the headline:
Health Care Challenge Tests Court’s Firmness on Right to Bring Suit