Could 'Standing to Sue' Allow Us All to Calm Down About Health Care?

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Don't expect gloating from either side over the latest ruling in the health care saga, announced over the weekend. In Bryant v. Holder, District Judge Keith Starrett of the Southern District of Mississippi ruled that the plaintiffs in Bryant v. Holder lack "standing to sue."


The opinion suggests that they may be able to cure the problem by rewriting their complaint. But it's worth taking look at the question of "standing." The Supreme Court could certainly use it to avoid making a decision on any of the pending lawsuits. Such a decision would not mean that the act would never face a constitutional test; it would merely delay it until there has been time for the heat its passage generated—the arrant nonsense about death panelists leering at Granny's bedside and Federal Broccoli Investigators raiding picnics—to recede.

Standing is the kind of angels-on-a-pin abstraction that not even constitutional lawyers can love. The idea arises from the fact that federal courts are courts of "limited jurisdiction." Article III of the Constitution extends their power to "cases and controversies," and provides a list of applicable cases, most either involving federal law or pitting plaintiffs in one state against defendants in another, or in another country.

In my hometown, it was said that a prominent lawyer in town was disturbed at his desk one day by a phone call from a neighbor. "Your house is on fire," the neighbor said. "Well, is it bothering you?" said the lawyer, and hung up. Just so, to have a "case or controversy," a plaintiff has to be bothered in some real way. Every citizen has beefs against the neighbors or the government; in order to have a case or controversy, a plaintiff must show the court a real injury. That injury must be imminent and not hypothetical; the defendant must be the cause of the injury; and the court must have practical means of redressing it. Otherwise, no "case or controversy."

Virginia's alleged injury is that its legislature outlawed individual insurance mandates. I find this statute indistinguishable from a law saying, "federal law shall not apply to residents of this state." Article VI, § 2 of the Constitution—the Supremacy Clause—invalidates the state law; claiming that injures the state is like claiming that the Brevard County Manatees are injured because Bud Selig won't let them play in the World Series. (Of course, there are some people out there who believe that the states can "nullify" federal law, but in fact this doctrine died on Cemetery Ridge.)

Judge Henry Hudson's opinion found standing because "the Commonwealth is exercising a core sovereign power because the effect of the federal enactment is to require Virginia to yield under the Supremacy Clause." I've read his opinion multiple times, and his reasoning still mystifies me. In the Florida case, Judge Vinson found that the state has standing because it is a "large employer."

The "individual mandate" doesn't go into effect until 2014, and of course only affects individuals. My burning house may bother you, but does just knowing it will probably burn in three years also bother you? Not every individual will have to pay the tax (e.g., those whose employers offer health insurance). And, under federal law, individuals can't get injunctions against taxes until they've paid them (which has required some acrobatics by judges determined to find that the tax is somehow not a tax). A judge could reasonably ask litigants to come back when the fire is a bit more imminent. By my count, four district courts have held that health-care plaintiffs do have standing, and two, including Judge Starrett, have held that they do not.

Judge Starrett notes that the individual plaintiffs in the Mississippi case didn't even claim that they would "certainly be subject to the tax penalty." The other plaintiff, the state's Lieutenant Governor, says the act may require state employees "to accept health insurance with coverage options that they do not desire." This is an injury, perhaps, but what are those horrid options? Bryant had not shown any specifics, the judge noted, adding waspishly that Bryant, whose term expires this year, has not shown that he "will be a state employee at all" in 2014.

This may seem like a discussion only lawyers could love—quit the stalling, let's get to the merits—but requiring real standing in the health-care cases would have several benefits. For one thing, it would mean that the courts would have a factual record to decide on, rather than blather about broccoli and the Stamp Act. For another, it would delay a constitutional ruling until it can no longer be delayed—when individuals find themselves having to pay the tax, or shortly before. By then the country will probably have recovered its wits on this issue, and a decision will calm, not roil, the waters.

Either way, the losing side of a 2012 decision is going to feel politically double-crossed. If the Supreme Court dismissed the current challenges for lack of standing, it would ensure that it cannot be accused of a partisan ruling designed to decide the 2012 presidential election. It would also mute the rising cry from Democrats that "activism" is now a conservative tactic.

The perception of non-partisan justice is a valuable part of the Court's legitimacy. That legitimacy suffered a blow when the Court reached out to decide the presidential election in 2000. This court is a very different one, with a new Chief Justice who may value the institution's prestige more than the chance to gall a political enemy. If that's the court's disposition, they may cloak it in the soporific language of standing.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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