New questions have surfaced over whether the plaintiffs in a key Obamacare challenge before the Supreme Court were legitimately hurt by the healthcare law, a controversy experts say could derail the case scheduled for oral arguments next week.
The crux of the case, King v. Burwell, focuses on whether the federal government can provide subsidies to reduce the cost of health insurance to residents in 34 states that refused to set up their own healthcare exchanges and two that failed to do so.
The four plaintiffs — two men and two women, all from Virginia — are eligible for a subsidy. But none of them want to purchase health insurance, meaning they will face the penalty of either 2 percent of yearly household income or $325 per person, whichever is higher.
They’re now arguing that the Affordable Care Act allows only states to issue subsidies, meaning the federal government isn’t allowed to subsidize coverage in states that have federally run exchanges, such as Virginia.
However, the Wall Street Journal recently raised questions on whether any of the four can really say they were harmed by the healthcare law.
The Journal found that two of the plaintiffs — David King of Fredericksburg and Douglas Hurst of Virginia Beach — appear to be veterans eligible for medical care from the Department of Veterans Affairs, which would free them from having to pay the penalty. A third plaintiff, Rose Luck of Petersburg, listed a motel as her address but no longer lives there. The address was used to calculate her eligibility for subsidies, the Journal said.
And the fourth, Brenda Levy of Richmond, doesn’t appear to earn enough income to be eligible for the subsidies, according to the Journal.
While the plaintiffs’ claim that they were harmed, a legal concept known as “standing,” appears to be “very shaky,” it is unlikely the justices will punt the case back to the lower courts, law professor Timothy Jost told the Washington Examiner.
But the court has been unpredictable, another scholar said.
“With this kind of thing, the Supreme Court acts very much in secret,” said Lisa McElroy, a law professor at Drexel University.
Some experts say the justices need to address the issue.
“It would be highly improper (and embarrassing) for the court to decide the merits of such an important case when there are doubts about whether this is actually a “case or controversy,’ ” said Gerard N. Magliocca, law professor at Indiana University, in a blog post.
Standing has derailed other high-profile cases, most recently the 2013 challenge to California’s Proposition 8 same-sex marriage ban. The court heard oral arguments in the case but declined to make a decision because private parties didn’t have standing to defend a state ballot measure. The decision meant a lower court’s ruling invalidating the ban stood, and same-sex marriages were allowed in the state.
Since that case, the court has become more diligent about reviewing standing in cases it selects, McElroy said.
Two lower courts found the plaintiffs in King v. Burwell had standing and the Justice Department didn’t contest that on appeal, said Jost, who teaches at Washington & Lee University. The libertarian think tank Competitive Enterprise Institute, which is bankrolling the case, echoed those arguments.
However, the lower court ruling was based on affidavits from the plaintiffs that the Wall Street Journal story appears to contradict, said Robert Weiner, an attorney with Arnold and Porter. For example, affidavits for King and Hurst said neither was eligible for government programs — but they were eligible as veterans. The plaintiffs should address the potential discrepancy, Weiner said.
The Obama administration didn’t raise the issue when the Supreme Court accepted the case in November, Weiner added.
Only one plaintiff needs to have standing for the lawsuit to be heard, meaning that if the other plaintiffs don’t, it won’t threaten the case.
The court could question attorneys about it during oral arguments. If none of the justices broach the subject, that is a big hint the court doesn’t believe standing is an issue, Jost said.
Another way to do that is through requiring supplemental legal briefs from both sides on standing, experts said.
Another obstacle is time. Oral arguments are scheduled for March 4, and it would be too late to schedule a hearing on standing, McElroy said.
