New wrinkles in the ACA litigation – Part II
by Beverly Mann
New wrinkles in the ACA litigation – Part II
Okay, well, now y’all know from reading Part I that under the Constitution’s Article III requirement that plaintiffs in lawsuits have some “particularized” (and ya know what that means, from reading Part I) injury or be in imminent danger of suffering one, and that the imminent danger can, theoretically, be hardship due to the anticipated violation of the plaintiffs’ rights. So you’ll be able to sail right through the federal-court-jurisdiction questions in the Civil Procedure section of the multi-state part of the bar exam.
You’ll also be able to understand what happened last Friday in the ACA case scheduled for oral argument on Wednesday in the Sixth Circuit federal appellate court.
The case is Thomas More Law Center, et al. v. Obama. Thomas More Law Center is a rightwing organization whose purpose is to challenge the constitutionality of laws or government policies or government actions against a particular individual that the far right finds offensive. Almost always, the underlying cause is a culture-wars issue, although sometimes the immediate issue being litigated is a more general procedural or constitutional-rights issue.
For example, a few weeks ago, a friend asked me whether I would be willing to advise a Thomas More lawyer on a procedural issue concerning access to federal court for a couple who are my friend’s friends and who are entwined in a legal morass stemming from their protests at an abortion clinic, for which they were prosecuted. My friend knows I know loads about the procedural issue, known as the Rooker-Feldmandoctrine, an absurd Supreme Court-created bar to access to federal court in order to challenge the constitutionality of state-court actions. I was happy to oblige, partly because this couple’s due process rights, were, in my opinion, violated, and partly because that doctrine itself violates the Fourteenth Amendment. On March 7, in an opinion called Skinner v. Switzer, the Supreme Court finally killed the doctrine, or tried to; because Skinner does not expressly say, “We overrule Dist. of Columbia Ct. of App. v. Feldman,” the 1983 opinion that created the doctrine on the basis of the Court’s interpretation of a statute that was amended in 1986 to remove the part of that statute that the Court was interpreting, some of the lower federal courts are ignoring Skinner. Just as I’d predicted on Mar. 7 when I read the opinion.
But I digress.
The et al. are four individuals who are members of the Thomas More organization. (It’s apparently an organization that has a membership, like the NAACP, the ACLU and the NRA, rather than just a law firm.) The organization’s standing to sue is derivative of its members’ standing—the ones that do have standing, that is, and only the members who actually will be forced by the ACA to buy health insurance or pay the penalty even arguably have standing. Turns out that the only one of the individual plaintiffs who, at least from the plaintiffs’ earlier filings, claimed that injury and provided specifics about it—that she did not have health insurance and that the $700 per month she said she would have to pay under the ACA would cause her significant financial hardship—actually bought health insurance through her employer last October, after the lower-court decision, for less than $400. The plaintiffs revealed this in their response to the court’s briefing request, which they filed last Wednesday.
Two of the other four individuals are not even claiming a lack of health insurance and therefore any injury from the mandate. The other one—his name is Steven Hyder—has claimed that the mandate “negatively impacts me now because I will have to reorganize my affairs and essentially change the way I live to meet the government’s demands,” but he provided no specifics.
Voila! On Friday, the government filed a motion asking the court to dismiss the appeal because, the government said, no plaintiff has standing to litigate this because no plaintiff has shown that he or she would suffer an injury from the mandate. Hyder’s claim, the government says, is a mere conclusory statement; without facts supporting the conclusion, it’s not enough to establish standing. And the others clearly haven’t established standing. And, because the trial-level judge, who is based in the Eastern District of Michigan, ruled that the ACA is constitutional, the government wants the appellate court not to “vacate” (hold null and void) that judge’s ruling, an action that normally the appellate court would do in such a circumstance.
The government’s request that the appellate court dismiss the appeal yet leave the trial judge’s ruling intact strikes me as pointless. Yes, the plaintiff who voluntarily bought health insurance in October did have standing when the lawsuit was filed and when the trial judge issued his ruling last summer. But trial-court rulings have no effect except in the case in which the ruling was issued. They don’t even set the law in that court’s own judicial district. That ruling, if it remains in effect although the appeal is dismissed, probably wouldn’t even effect the rights of these plaintiffs—most significantly, of course, the Thomas More Law Center—because they were denied the right to an appeal.
At the oral argument on Wednesday, or before that in a filed response to the government’s motion, the Thomas More lawyers will get specific about the basis for Hyder’s claim of financial hardship and about whether the other two individuals now have health insurance. If they all have health insurance, then, the mandate won’t cause them financial hardship or, irrespectively of finances, force them to do something they don’t want to do. They don’t have standing.
But, assuredly, some plaintiff in some other ACA case does. Or will.
The fact that the TMC could not find people with standing to sue is a pretty strong clue. The one person who would have been subject to the ACA bailed as soon as she could get insurance. Basically to have standing you would have to go naked for the length of the suit. Good luck with finding fools who would sign on to that, pretty damn clear proof that ACA is good law.
The lawyers always get rich.
Lawyers are the the primary beneficiaries of of PPACA.
Actually, Rustbelt, neither of those statements is true. With (to my knowledge) the exception of only one case, the ACA litigation is being handled for the plaintiffs by in-house state lawyers (in the Virginia case, for example, the state attorney general himself is litigating ti) or by lawyers for rightwing law organizations who either work in-house, pro bono or for very discounted rates. The one exception is the one in Florida in which an number of states—roughly 20, if I recall correctly—jointly filed a lawsuit in one of the federal trial-level courts in Florida to challenge the ACA’s constitutionality. That’s the one in which the judge, Roger Vinson, ruled the entire ACA (not just the insurance mandate) unconstitutional. The oral argument in that appeal, in the 11th Circuit Court of Appeals, based in Atlanta, will be next week—Monday, I think.
The states have retained Paul Clement, a former Bush solicitor general and a Supreme Court “regular” and superstar in private practice, to argue that case in the 11th Circuit and eventually in the Supreme Court. He’s already rich. He’s also almost certainly reduced his per-hour fee for this case, since he’s representing governments rather than corporations. The hourly fee is still, I’m sure, high, but this is only two appeals in a single case, and the fees he gets will be a tiny fraction of his income for the year (or […]
The oral argument in the 11th Circuit will be on Wed., Jun. 8.
Also, to clarify: The plaintiff states in that lawsuit and the only non-state plaintiff in that case—The National Federation of Independent Business—all were represented in the trial-level court by a big-name lawyer at the Washington, D.C. office of mega law firm Baker & Hostetler.