Now that the preliminary bout (some sort of election, I
hear) is all over, but for the shouting or tweeting, it’s time for the main
event: Lawyers are back fighting again over the Affordable Care Act (ACA) at
the Supreme Court.

On Tuesday morning, oral argument commences in California
v. Texas. The primary issues most touted by observers usually involve
whether whatever remains of the original individual mandate in the law has
become unconstitutional, and, if so, whether it matters enough to jeopardize
the rest of the ACA (severability). But perhaps just as crucial is whether or
not the plaintiffs who brought the case back in early 2018, in the “Best Little
Courthouse in Texas” for ACA critics, really have legal standing to make their
claims against Obamacare. Its resolution could make the other issues irrelevant.

If the high court wants to stop well short of ruling on the
constitutional law merits and a severability remedy, the standing issue
provides an easier early-exit door, which could even be joined by several more
conservative justices. The standard rules of standing in federal court are
supposed to require an injury in fact suffered by a plaintiff, that was caused
by the defendant’s conduct, and which likely can be redressed in court.
Federal courts are only supposed to address real cases and controversies that
have these necessary elements. Of course, like many legal rules, they sometimes
can get dialed up or dialed down depending on the relative appeal of the
underlying legal issues and who is sitting on the bench.   

In the California v. Texas litigation, the
combination of individuals and state governments bringing the original lawsuit
skated past less-rigorous initial review of their legal standing status.
Because it only took a finding of standing for just a single plaintiff to keep
the case alive for everyone else, even less scrutiny was given to the separate standing
claims of 18 (originally 20) states.

The legal arguments that the various plaintiffs all lack standing are perhaps best summarized in an amici brief filed by law professors Walter Dellinger, Douglas Laycock, and Christopher Schroeder. (Dellinger tried to teach me constitutional law at Duke many decades ago, but we don’t agree on much when it comes to the law and policy of the ACA.)

The basic point is that, without any financial penalty to
enforce the remaining individual mandate, after the 2017 passage of the Tax
Cuts and Jobs Act, “No harm, No foul.” Any injury from compliance by
individuals is self-inflicted. Moreover, there is no enforcement mechanism by
which the federal government could enforce this mandate. Indeed, the Internal
Revenue Service even removed any question about compliance with the mandate
from tax forms for 2019 and future years. (Not the first time that one arm of
the Trump administration couldn’t get its story straight with another one).
Dellinger, Laycock, and Schroeder cite the 1961 birth control ban case of Poe
v. Ullman as an example of another statute with no credible threat of
enforcement or realistic fear of prosecution, and therefore no standing for a
challenge.

The individual plaintiffs in California v. Texas
essentially claim they were compelled as law-abiding citizens to do what they
were told and buy insurance they did not want. That’s their story, and they’re
sticking to it! So, ironically, is the Congressional Budget Office, however
weakly, in still projecting in 2017 that at least some individuals, if not as
many as mistakenly forecast right before the ACA was enacted back in 2010,
would indeed still do so. Similar claims of prospective legal injury worked for
individual plaintiffs in older challenges to the ACA mandate in lower courts
and at the Supreme Court.

The state governments’ standing claims of injury are more
attenuated, if not fully speculative. The lower court evidentiary record is
thin and muddied. And manufacturing standing by conflating it with non-severability
claims about the rest of the ACA is not supposed to work (except when it almost
does — see the NFIB v. Sebelius dissent).

Best guess: If the Court wants to dispose of this case quickly and near-unanimously, a gesture toward tightening up the periodic selective laxity in standing standards might work — even if that upsets a host of left-of-center legal advocacy groups who have their own expansive litigation agendas in other areas like environmental law. Or the Court could resort to the Skelly Oil precedent against finding jurisdiction to issue declaratory judgments in cases where none of the parties could have sought non-declaratory action (i.e., an injunction) against the other parties in the same case. A little judicial housekeeping could keep the ACA medical coverage home open for business.

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