New King v. Burwell plaintiffs' brief skips questions on standing

A new brief filed by those challenging the Affordable Care Act in the King v. Burwell case hits on a number of issues but omits any mention of what has become the legal elephant in the courtroom—if the plaintiffs have legal standing to bring the case.

It's an issue that could still pop up even though the brief filed Wednesday is the last expected from major parties before oral arguments in front of the U.S. Supreme Court's nine justices March 4.

“The petitioners are trying to avoid this at all costs,” said Lisa McElroy, an associate professor of law at Drexel University, of the standing issue. “Given that it's been in the news and given that it does look like there's an issue, they do not want to focus on that at all. They want to draw attention elsewhere.”

The Competitive Enterprise Institute, a conservative policy group, is funding the legal challenge to the ACA.

Media reports this month have raised doubts about the standing, or the legal right to sue, of the four plaintiffs in the case, noting that it's possible none might actually be able to claim they were injured by the healthcare law because they would have been exceptions to the law's requirement to purchase insurance.

That's because some are veterans who are eligible for free healthcare through the U.S. Veterans Affairs Department, some might not have incomes high enough to trigger the purchase mandate, one plaintiff's address is listed as a Virginia motel where she no longer resides, and another will turn 65 and qualify for Medicare in June though the case might still be ongoing then.

The lack of acknowledgement of those standing issues in the brief doesn't necessarily indicate the petitioners aren't worried about them, McElroy said.

And the issue could still come up. It's possible the Supreme Court could ask for supplemental briefings on the standing controversy, though it might be a bit late for that, McElroy said. The issue could also arise at oral arguments. Or the justices could ask for supplemental briefings about the standing issue after oral arguments, she said.

Only one plaintiff must have standing for the case to move forward. If the justices were to decide none of the plaintiffs had standing, they could dismiss the case as improvidently granted, or they could issue an opinion saying the plaintiffs don't have standing, McElroy said.

Tim Jost, a professor at Washington and Lee University School of Law in Virginia and an advocate of the law, believes the petitioners should have addressed the standing questions in their brief.

“I think very serious questions have been raised about the standing of the plaintiffs in this case and I think they have an obligation to come forward and refute those challenges,” Jost said. “This is, I think, clearly a political case and not a case in which there's much evidence that anybody has been injured who is a plaintiff in the case.”

But Andrew Kloster, a legal fellow at the conservative Heritage Foundation, said the issue of standing was addressed in earlier briefs. He doesn't believe standing will be a problem in the case. If standing were really an issue, he said, the Justice Department lawyers would have already pounced on it.

"I think that it's an effort to play the PR game and distract people and make it look like this is some nefarious effort rather than an honest effort to make the federal government comply with the letter of the law," Kloster said.

Standing issues aside, the brief argues that the term “established by the state” as used in the ACA is not a “term of art” as the government claims.

At issue in the case is whether that phrase limits insurance premium subsidies to Americans in states with their own exchanges or whether Americans in all states, even those relying on the federal exchange, should have access to the subsidies. Some say if the petitioners win and subsidies are no longer widely available, the entire law with fall apart.

“It would certainly be convenient, for an agency seeking to rewrite a statute, if an English phrase can become a term of art on the Government's mere say-so,” the brief argues. “It cannot.”

The brief also argues against the government's claim that the word “such” within the law proves the government's point. The law says that if a state does not establish its own exchange, then HHS “shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State.”

The government has argued that the word “such” in that context shows that Congress considered exchanges established by the state and those established by the federal government to be the same.

But the petitioners' brief argues that, “ 'Such Exchange' clarifies what HHS is establishing; it does not alter the reality that HHS, not the state, is establishing it.”

The brief also argues that whether Congress intended to condition the subsidies on states establishing their own exchanges is “legally irrelevant” because the language of the law is clear.

But the petitioners say even if intent were relevant, the government's argument that Congress would never have wanted the subsidies limited is faulty.

McElroy said many believe that reply briefs in such cases are the most telling documents “because the reply brief is only going to cover the things the petitioner is concerned about in the respondents' brief.”

“The reply brief really tells them where the landmines are in the argument,” she said.

Follow Lisa Schencker on Twitter: @lschencker