• A puzzle about standing, resolved.

    A few weeks back, I raised a question about Texas’s latest challenge to the Affordable Care Act: do the plaintiffs even have standing to sue? Now that the Justice Department has thrown in the towel and declined to the defend the statute, that question has become a lot more urgent.

    To demonstrate standing, Texas and its compatriot states recruited two individuals, John Nantz and Neill Hurley, who say that they’re healthy, self-employed, and not eligible for Medicare and Medicaid. Taking all that as true, the law as a whole causes the two men an injury sufficient to ground standing. If the law were wiped from the books, insurers wouldn’t have to set premiums at levels adequate to cover unhealthy people. They could instead refuse to sell insurance to the sick, allowing them to charge Nantz and Hurley a lower price that reflects their relatively low risk.

    But the plaintiffs’ legal claim is not that the ACA as a whole is unconstitutional. It’s that Congress, when it zeroed out the mandate penalty, knocked the constitutional legs out from under the penalty-free mandate that nominally remains on the books. That unenforceable mandate, however, doesn’t cause Nantz and Hurley any harm. As Jonathan Adler put it, “[t]here is no longer any penalty for failing to comply with the individual mandate, so no one is injured by it, so there is no standing to sue. Case dismissed.” (In its amicus brief, the AMA develops this argument in more detail.)

    Here’s the puzzle, then: Texas believes that, if it wins, the entire ACA should fall. And the Supreme Court’s decision in Steel Co. v. Citizens for a Better Environment says that “jurisdiction [must] be established as a threshold matter” before the court can turn to the merits of the plaintiffs’ claims. In assessing standing, must the court therefore assume at the threshold the validity of Texas’s remedial claim? Must it do so even though that remedial claim—the assertion that the entire ACA must fall—is laughable?

    The answer, mercifully, is no. The courts do not have to assume the validity of a plaintiffs’ severability argument. On at least two occasions, including in INS v. Chadha, the Supreme Court has itself treated a question of severability as part and parcel of its standing analysis. And for good reason. As the Supreme Court has held, “standing is not dispensed in gross,” and “a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Those principles wouldn’t count for much if a plaintiff could manufacture standing through the simple expedient of making outlandish remedial claims.

    Kevin Walsh made these points in a forceful Stanford Law Review article (p. 75-77) written during the first round of litigation over the Affordable Care Act. He also addressed the significance of Alaska Airlines v. Brock, which Texas has invoked to defend its standing. The trouble for Texas isn’t just that Alaska Airlines doesn’t so much as mention standing (though that is a problem). As Walsh explains, Alaska Airlines also wasn’t a case in which a plaintiff sought to take down a sprawling, complex statute because of a constitutional flaw in a discrete part of it.

    Rather, the unconstitutional provision was part and parcel of the specific portions of the statute that the airlines sought to challenge. “Alaska Airlines,” Walsh wrote, “is therefore far removed from the circumstances facing the states who seek to challenge the individual mandate in Florida v. HHS on the basis of statutory provisions dealing with different matters in different sections of comprehensive legislation.” That analysis is as sound today as it was six years ago.

    In other words, the right outcome in the case is a dismissal for want of jurisdiction. That’s consistent with the case law, and it’s also consistent with the broader aim of standing doctrine, which is to keep the courts from resolving abstract disputes that should be left to the political process. In asking the courts to overturn Congress’s judgment about whether the ACA should remain the law of the land, Texas has invited the courts to assume an intrinsically legislative role. The courts should reject that invitation.

    @nicholas_bagley

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