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Tuesday, December 18, 2018

Standing in the ACA case

Good analysis from Nicholas Bagley (Michigan) about the standing problems for the two individual plaintiffs in the ACA litigation. A few additional thoughts.

• This illustrates how enforcement is the trigger for constitutional litigation, not the existence of a constitutionally defective law. An invalid legal obligation that will not be enforced cannot be the subject of litigation. An invalid legal obligation that will be enforced through a tax penalty of $ 0 is, functionally, a legal obligation that cannot be enforced. It still would be better if we discussed this as a question of merits and not jurisdictional thresholds. If these plaintiffs are not injured because the law cannot be enforced against them in any way, then their substantive constitutional rights are not being violated.

• The plaintiffs' argument that they are injured because they believe following the law is the right thing to do (even when that law is not enforceable) is the flip side of requiring government officials to act lawfully  or refrain from acting unlawfully (e.g., reservists in Congress, non-natural born citizens serving as President). Neither is a basis for standing.

• I have not seen any good argument that the 20+ States have standing. But the court skirted that question through the "one good plaintiff" rule--because someone had standing, the case could proceed without having to consider anyone else's standing. Update: In a companion piece, Bagley doubts that the 20 states have standing, which should mean the court cannot enjoin the Administration from enforcing the law as to him; in Bagley's words, the judge has "tied his own hands."

• Standing and jurisdiction have always been dicey in the ACA litigation; this case represents the latest and weakest effort. I wonder if the Fifth Circuit (or SCOTUS if it gets that far) will use that as the basis to get rid of this case, without having to touch the bizarre merits.

• Bagley describes standing doctrine as "near and dear to the hearts of the conservative legal establishment," so that even conservative judges on the Fifth Circuit (and Roberts and Kavanaugh on SCOTUS) will be unlikely to allow this sort of case to go forward. But the doctrine developed when the conservative legal establishment was trying to stop environmentalists from preserving the Nile crocodile, lawyers from challenging unwarranted surveillance of their foreign clients, and atheists from challenging states' creative ways to give government funds to parochial schools. This is the ideological drift of standing--the doctrine may not be so near and dear when it prevents "two guys from Texas" from taking down the nation's health-care system.

Posted by Howard Wasserman on December 18, 2018 at 04:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Thanks for that comment Jimbino ....

Posted by: El roam | Dec 24, 2018 2:28:18 PM

Wrong, El Roam. You need a better dictionary. I suggest American Heritage:

"\\Usage Note: The verb forgo, meaning "to abstain from, do without," has forego as an acceptable variant. Thus, one can forgo or forego dessert, though the spelling without the e is far more common and is preferred in most dictionaries. Forego also exists as a separate word meaning "to go before, either in place or time," as in The essential points have been laid out in the foregoing pages. The two words have historically been spelled differently because they incorporate different prefixes: The fore- of forego is the same prefix (meaning "in front, ahead, before") found in forefather, forehead, and foreword, while the for- of forgo is akin to the for- in forget, forlorn, and forsake and usually denotes loss or removal."

Here's how Grammarphobia Blog assesses the situation:

The two verbs have separate histories dating back to Anglo-Saxon days. And as Garner’s Modern American Usage (3rd ed.) puts it, “their meanings are so different that it’s worth preserving the distinction.”

And noting that the erroneous wording was "cited from the ruling" is no excuse for repeating the error. A grammatical error made by a judge is properly denoted thusly: [sic]; it's done all the time!

Posted by: Jimbino | Dec 24, 2018 12:49:57 PM

And " infinitive " that is to say : the basic form of a verb .... Thanks

Posted by: El roam | Dec 19, 2018 2:17:38 PM

Jimbino , this is not a mistake . First , so cited from the ruling (copy/past ) . And concretely , it is so in English , it is a verb simply . The infinitive form is indeed : " forego " ( precisely so ) and the meaning , is simply , being free from , being able to do something without a given inhibition . Here I quote the dictionary ( see link ) :


If you forego something, you choose to give it up. If you forego dessert after dinner, you are skipping dessert.

The verb forego (also spelled forgo) literally means “to go by.” In common usage it means “to abstain” or “do without.” You might forego smoking cigarettes as a New Year’s resolution. Forego can also mean “to precede,” or “go before.” This verb is often seen in its past participle form, foregone, in the phrase “foregone conclusion,” meaning a predetermined conclusion.


But thanks anyway .....

Posted by: El roam | Dec 19, 2018 2:12:33 PM

"free to forego purchasing health insurance altogether"

The word you were looking for is "forgo."

Posted by: Jimbino | Dec 19, 2018 1:36:44 PM

It depends on which provision. But there is no constitutional dispute about most of those provisions and most of ACA--all clearly have an effect on interstate commerce and all are clearly valid. The only constitutional dispute is with the mandate and the tax consequence. But once the consequence is zeroed out, nobody can challenge it because it isn't harming anyone.

Posted by: Howard Wasserman | Dec 18, 2018 11:00:53 PM

Interesting blog post. Who would have standing to challenge the ACA? An insurance company that refused to cover pre existing conditions; one that charged an older insured more than the allowed ratio for younger insured?

Posted by: Allan Farkas | Dec 18, 2018 7:33:11 PM

Or rather not less important , I quote from P. 18 :

The Individual Plaintiffs, for example, would be free to forego purchasing health insurance altogether or to otherwise purchase health insurance below the “minimum essential coverage” better suited to their health and financial realities. At a minimum, they would be freed from what they essentially allege to be arbitrary governance.

End of quotation :

So , even so , financially ,it is putting a burden . Undue one in their view . Unconstitutional one , even if there is no penalty at all .


Posted by: El roam | Dec 18, 2018 5:43:16 PM

One may read the citations in my comment down there , in Page 17 ( mainly ) here to the ruling :



Posted by: El roam | Dec 18, 2018 5:30:44 PM

Interesting . But that argument , of zero financial burden and so rendering the mandatory coverage not enforceable , is clearly denied by the court and the reasoning therein ( and anyway suggests that they have suffered concrete injury in accordance ) here I quote :

This means several classes of individuals are obligated to obtain minimum-essential coverage but are not subject to the tax penalty for failure to do so ....

So , they are obligated to obtain minimum essential coverage . Compelled to to do it . That is an injury , due to Unconstitutional legal obligation . And more I quote :

Here , the Individual Plaintiffs are the object of the Individual Mandate .It requires them to purchase and maintain certain health - insurance coverage .

And , or while :

A showing of economic injury is not required ......

And further more :

In warning lower courts not to conflate the “actual-injury inquiry with the underlying merits” of a claim, the Fifth Circuit recognizes that standing can be established where a plaintiff alleges that a federal statute or regulation “deters the exercise of his constitutional rights.” Duarte,759 F.3d at 520. Here, the Individual Plaintiffs allege just that. They claim “Section 5000A’s individual mandate exceeded Congress’s enumerated powers by forcing Individual Plaintiffs to maintain ACA-compliant health insurance coverage.” Am. Compl. ¶ 49, ECF No. 27.

End of quotation :

So , he who does attack so such ruling , must first address concretely what is held and written at the body of the ruling ( the reasoning ) and then argue whatsoever . Maybe he is right ( I doubt it ) but , this is not a method to refute reasonings of federal court .


Posted by: El roam | Dec 18, 2018 5:22:36 PM

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