Are you ever tempted to believe that right-wing judges are just passive umpires who call balls and strikes? That they only “enforce the Constitution” or “read the statute”? Judge Reed O’Connor of Texas should cure you of that misimpression. On Friday, when he declared the entire Affordable Care Act invalid, he said he was only doing what the Constitution requires. But in deciding the case, he violated the very document he claimed to be applying. And he did it without any plausible justification at all, in defiance of basic legal principles.
Article III of the United States Constitution says that the federal courts can hear only “Cases and Controversies.” The Supreme Court has read that to mean that you can’t bring any old political gripe into court. You’ve got to suffer a concrete injury if you want to make a federal case out of it. Otherwise, courts would have the power to resolve abstract disputes that should be left to the political process.
Want the federal government to stop giving a tax break to racially discriminatory schools? Sorry, you don’t have standing. Angry that federal agencies are financing projects that might harm endangered species in foreign countries? Tough luck. You haven’t suffered an injury. Upset that a website has published incorrect information about you? Don’t come to court unless you can show that you’ve suffered some kind of harm.
The plaintiffs in the Texas lawsuit? They also don’t have standing. It’s not even close.
The case was originally brought by a group of 20 red states. According to them, the so-called individual mandate became unconstitutional when Congress eliminated the financial penalty for going without insurance. And if the mandate is unconstitutional, then the entire law is null and void. But the states aren’t subject to the individual mandate. People are. And the states don’t have standing to complain about a mandate that doesn’t even apply to them.
And so, the red states added new plaintiffs—two self-employed Texans, John Nantz and Neill Hurley, who say they have to pay higher prices for insurance because of Obamacare. They may be right about that: If the law were wiped from the books, insurers could refuse to sell insurance to sick people. That would allow insurers to charge healthy people less for their coverage.
But freewheeling complaints about the Affordable Care Act aren’t enough to give Nantz and Hurley standing, any more than they’d be enough for the red states. “Standing is not dispensed in gross,” as the Supreme Court has said. To have standing to sue, Nantz and Hurley have to show that the individual mandate caused them some kind of injury.
And they can’t do that. Remember, the entire basis for this lawsuit is that Congress, in 2017, repealed the tax penalty for going without coverage. That means Nantz and Hurley are free to buy insurance, or free not to. The individual mandate doesn’t force them to do a damn thing.
O’Connor, however, really wanted to hear this case. So he stretched. He drew a sharp distinction between the individual mandate—the instruction to buy insurance—and the tax penalty for going without. Although Congress has zeroed out the penalty, the (now unenforceable) mandate is still on the books and “requires [Nantz and Hurley] to purchase and maintain certain health-insurance coverage.”
That’s not true: The ACA requires nothing of the kind. If you don’t believe me, believe the Supreme Court. In the first round of litigation over the individual mandate, the Court held that every person has “a lawful choice” to purchase or not purchase health insurance, “so long as he is willing to pay a tax levied on that choice.” Eliminating the tax penalty eliminates the consequence of that choice, but it doesn’t transform the individual mandate into a legal command.
Or look at the ACA itself. From the moment it was adopted, the ACA has said that “no penalty shall be imposed” on certain people, including American Indian tribal members and those with brief gaps in coverage. The law characterizes them as “exempt.”
In O’Connor’s view, all those people are still nominally compelled to adhere to the (unenforceable) mandate—which means they’re in exactly the same position as Nantz and Hurley, and have been for years. It would follow that these exempt people have been legally required to buy insurance all along, and that they all broke the law if they didn’t. Really?
Nantz and Hurley say they feel “obligated” to buy insurance because they “believe that following the law is the right thing to do.” But, again, the law doesn’t obligate them to do anything. It’s all in their heads. And, as the Supreme Court has said, plaintiffs can’t “manufacture standing merely by inflicting harm on themselves.”
O’Connor rejected that line of argument, saying that it “begs a leading question in the case by assuming that the Plaintiffs need not comply” with the individual mandate. But even assuming that the Texans are right that they’re technically obligated to buy insurance, being subject to an unenforceable legal command doesn’t count as an injury. The Supreme Court has flatly held that “a plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.”
So it’s not enough that you feel compelled; you must actually be compelled. In one D.C. Circuit case, for example, a family-planning group challenged a provision that prohibited recipients of government grants from discriminating against individuals who refuse to provide abortions. The family-planning group said it was laboring under an unconstitutional obligation. That’s not enough for standing, said the court, because there was no reason to think that “good-faith conduct violating a grant condition would trigger an immediate funding cut-off.” No risk of enforcement, no standing. Similar cases led to similar outcomes.
Which is why this case should have been dismissed shortly after it was filed—and why O’Connor’s decision is vulnerable on appeal. Standing doctrine is near and dear to the hearts of the conservative legal establishment. The principal architect of modern standing doctrine was none other than Justice Antonin Scalia. The Fifth Circuit is full of Republican-appointed judges who endorse strict standing rules. Chief Justice John Roberts is a standing hawk, as was Justice Brett Kavanaugh when he served on the D.C. Circuit.
Granted, it’s possible that conservative judges will endorse O’Connor’s slipshod analysis. Standing doctrine is notoriously flexible, and you could be forgiven for thinking that judges sometimes deploy the doctrine to suit their politics.
But there is no good legal argument for thinking that two guys from Texas have standing to challenge a law that doesn’t require them to do anything. O’Connor’s decision is indefensible, and I bet even the conservative judges who hear an appeal will see matters the same way. That is, after all, what the Constitution demands.
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