It isn't exactly surprising that all four individual plaintiffs in the King v. Burwell case have dubious legal standing to pursue their challenge to Obamacare's premium subsidies before the U.S. Supreme Court, as the Wall Street Journal has reported.
Similar legal standing questions arose in 2011 about the two individual plaintiffs challenging the constitutionality of the Affordable Care Act in the case that ultimately led to the Supreme Court narrowly upholding the law in 2012.
The New York Times' Gail Collins offers a droll description of the four Virginia plaintiffs who claim to have suffered grievous harm from the ACA's requirement that they either buy coverage or pay a tax penalty.
They are:
- David King, the lead plaintiff, a 64-year-old limo driver who apparently would qualify for a hardship exemption from the ACA's requirement to buy insurance because the premium would cost more than 8% of his income. In addition, as a Vietnam War veteran, he likely is eligible for free care through the Veterans Health Administration
- A 63-year old man who apparently would be eligible for big savings on his health insurance with the ACA premium subsidy, and who also is a Vietnam veteran
- A woman whose listed address is a Virginia motel where she has not stayed since 2013
- A 64-year-old woman employed as a substitute teacher who told reporters she didn't understand what the King v. Burwell case was about. She told Mother Jones magazine: “I don't like the idea of throwing people off their health insurance.”
Her public school employer said her annual pay was less than $10,000, easily low enough to qualify her for a hardship exemption from having to buy coverage. The woman turns 65 and qualifies for Medicare in June.
The fact that the conservative and libertarian groups behind the Obamacare challenge, including the Competitive Enterprise Institute, “couldn't find four people who actually had a legitimate grievance is very telling,” Neal Katyal, the former acting solicitor general in the Obama administration, told the Times' Collins.
Katyal and other legal observers say it's very possible the four plaintiffs' personal situations mean they aren't harmed by the law and therefore lack legal standing to bring the case, and that could be grounds for the Supreme Court to dismiss the case. The Competitive Enterprise Institute, however, says its lawyers aren't worried about legal standing issues.
It was a similar story during the first major legal challenge, which led to the Supreme Court's landmark ruling in National Federation of Independent Business v. Sebelius upholding the constitutionality of the individual mandate but making Medicaid expansion optional for states. In that case, the Wall Street Journal reported that one of the two plaintiffs, Mary Brown, the owner of a small Florida auto repair shop, had filed for bankruptcy and therefore could no longer claim that she was harmed by the ACA because she was exempt from penalties for not buying health insurance.
The Obama administration argued that the other individual plaintiff, a retired lawyer/Wall Street banker living in Washington state, didn't have a valid claim because he didn't need or want health insurance and he acknowledged he was wealthy enough to pay for all his medical expenses out of pocket.
The irony is that all four of the plaintiffs in the pending case and at least one of the plaintiffs in the earlier case are people who very likely would benefit from Obamacare's premium subsidies to make coverage affordable and its rules against insurers' denying coverage based on pre-existing conditions. After all, they were in their 50s and 60s at the time of the litigation. In Mary Brown's case, her bankruptcy filing showed that she and her husband owed medical debts.
So will Chief Justice John Roberts and his colleagues take a close look at the standing issue and consider throwing out the case? Some legal experts say they should, but many doubt they will. After all, they could have questioned the plaintiffs' standing in the earlier case in 2012. But they didn't.
Tim Jost, a law professor at Washington & Lee University who is closely following the King case, said he would be surprised if the justices scrutinized the standing question. “Even if the Court decided that none of the current plaintiffs have standing, there are others who probably do and there is no point in delaying a decision on the issue,” he said.
Still, “considering who the plaintiffs are and the fact that they have not been injured by the ACA puts in further relief the fact that this is strictly a political case brought by a far-right advocacy group and does not involve any real injury to anyone,” he said.
Follow Harris Meyer on Twitter: @MHHmeyer