King v. Burwell is a fraud upon the Court

I have posted several times about the Libertarian lawyers who write for the Volokh Conspiracy at the Washington Post will make a Textualism argument in King v. Burwell, arguing that the text of “ObamaCare” limits federal subsidies only to people who buy insurance from state-run exchanges, not from the federal exchange.

The “free market, anti-government regulation” Competitive Enterprise Institute is bankrolling this case. Hillary Clinton was right: there really is “a vast right-wing conspiracy.”

What these Libertarian lawyers are engaged in, in my opinion, is perpetrating a fraud upon the court, for which the U.S. Supreme Court should impose sanctions and refer these lawyers for bar disciplinary proceedings. I have rarely seen anything as blatant as this. This case should not be in front of the Supreme Court.

Should the Court actually side with the plaintiff’s in this case, in furtherance of their fraud, we will have a serious constitutional crisis on our hands.

The media has finally begun paying attention to the fraud being perpetrated on the court with some belated good reporting in the past couple of weeks.

The Wall Street Journal in two reports by Louise Radnofsky and Brent Kendall, New Questions Swirl on an Affordable Care Act Challenger and Health-Law Challenger’s Standing in Supreme Court Case Is Questioned raised serious doubts whether the named plaintiffs even have standing to sue, a jurisdictional prerequisite. Stephanie Mencimer of Mother Jones also reported on the backgrounds of the plaintiffs Meet the Unusual Plaintiffs Behind the Supreme Court Case That Could Destroy Obamacare, which also raised serious doubts whether the plaintiffs have standing to sue.

Update: Brian Beutler at The New Republic also has a terrific deep dive into the origins of the King challenge. The Conservative Obamacare Challenge Has Become an Absurdist Comedy.

Lawyer and legal analyst Jeffrey Toobin at the New Yorker writes, Did Chief Justice John Roberts Save the Affordable Care Act?

Every first-year law student learns about the principle of “standing” in civil-procedure class. Under Article III of the Constitution, the federal courts are only allowed to hear “cases” and “controversies.” For decades, the Supreme Court has interpreted those words to mean that plaintiffs must be able to show an “injury in fact” from a law in order to have the right to bring a case challenging the law.

* * *

During the George H. W. Bush Administration, a coalition of environmental and conservation groups sued to stop new federal regulations that limited the application of a section of the Endangered Species Act. Chief Justice Roberts, then the Deputy Solicitor General, persuaded the Supreme Court to throw out the case because the plaintiffs would not suffer direct harm from the new regulations and lacked standing to bring the case. In Lujan v. Defenders of Wildlife, the court held that a “generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.”

All of which leads to the case now before the Supreme Court, King v. Burwell, which is to be argued on March 4th. The case, which was expressly devised to take down the Affordable Care Act, centers on a provision that gives individuals who fall within a certain income threshold—roughly above poverty but below wealth—tax subsidies to pay for health insurance. The case is based on the claim that the Obama Administration policy of allowing those who received tax subsidies to buy insurance on the federal exchanges—which cover the thirty-four states that don’t have state-run exchanges—violates the terms of the Affordable Care Act itself. If the plaintiffs succeed in making their case, eight million people are estimated to lose their health insurance, and the A.C.A. itself could subsequently unravel.

But the King case, like any case, can only proceed if the plaintiffs have standing—that is, if they can claim an “injury in fact” from the Obamacare law. Thanks to two recent, excellent pieces of journalism, in Mother Jones and the Wall Street Journal, we now know a great deal about the four plaintiffs. Two 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.

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.

Of course, a dismissal of the case because the plaintiffs lack standing would not settle the legal issue of whether the tax subsidies are legal in the thirty-four states. Presumably, another lawsuit could proceed with more appropriate plaintiffs. But, in and out of government, lawyers are taught to believe that a win is a win.

I agree with Gerard Magliocca at Balkinization Blog. Standing in King v. Burwell:

Under the circumstances, the Court should order supplemental briefing on 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” under Article III.

 As I posted last week in Linda Greenhouse on King v. Burwell: ‘The Court itself is in peril’: “The court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the court itself is in peril as a result.”

Note: There is an “easy out” for the four conservative activist Justices it took to grant review in King: they could reverse themselves and order that “review was improvidently granted,” based upon the lack of standing and an actual case and controversy. The Justices reputations for political activism, however, has already been set in stone by granting review in this fraud upon the court. They should quit now before they create a constitutional crisis.