Is ACA Challenge Standing on Shifting Sand?

So as Jeffrrey Toobin explains at the New Yorker, the inquiries into the backgrounds of the four plaintiffs in Burwell v. King conducted by journalists (mostly Stephanie Mencimer at Mother Jones and Louise Radnofsky and Brent Kendall of the Wall Street Journal) are not just a matter of personal interest stories. It’s beginning to look like there are credible grounds for doubting the “standing” of all of them to bring the suit. And standing is traditionally a preoccupation of judicial conservatives, especially Chief Justice Roberts.

Two [plaintiffs] are veterans of the Armed Forces and can receive health care through the Department of Veterans Affairs; accordingly, they have no reason to seek the tax subsidies under the law. The other two plaintiffs may make too little money to qualify for the tax subsidies, and, furthermore, one who claimed to be a Virginia resident listed a motel that prohibits long-term stays as her address. In short, the provisions of the Affordable Care Act in question in King v. Burwell may be irrelevant to all four plaintiffs—which would mean that they lack standing to challenge it.

Here’s the weird part:

The Obama Administration did not raise the standing issue in its brief to the Supreme Court in King v. Burwell. However, the standing issue is “jurisdictional,” which means that plaintiffs must always prove standing, whether the defendants raise the issue or not. The Justices can always take it upon themselves to investigate the record in the case to determine whether the plaintiffs have standing, and even as late as days before the argument, Administration lawyers can write a letter to the court calling attention to the issue of the plaintiffs’ questionable standing. If the Justices ask questions about standing at the oral argument next month, it’s a good clue that a dismissal of the case on standing grounds is at least a possibility.

So it seems the journalists looking into the plaintiffs indeed broke new ground–or to put it another way, the administration’s lawyers did not distinguish themselves with due diligence. As for the idea the Court itself will raise the standing issue, we should keep in mind the Court accepted this case against the expectations of most legal beagles, just when it was about to be deep-sixed by the D.C. Court of Appeals. One might think they had already decided to mess up the ACA. But more than likely, it will only take one Justice to prevent a majority for the plaintiffs, and Toobin’s right, Roberts is just the guy you’d expect to pay attention to standing. But will Roberts really risk the eternal enmity of his fellow conservatives by saving Obamacare twice? That’s hard to say, just as it’s hard to say how quickly conservatives could come up with a fresh challenge and get it to SCOTUS if this one unravels.

UPDATE: Paul Glastris reminds me that two of the three journalists who outworked the Obama administration and broke the “standing” story are WaMo alumni. Stephanie Mencimer is a former full-time editor and frequent writer who is now a contributing editor here, and Brent Kendall got his start at WaMo as an intern and then as an editorial assistant, who contributed a number of fine stories to the magazine.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.