The simmering debate about ObamaCare reemerged in Washington this
week amid questions about the plaintiffs in the upcoming Supreme Court
case on the health law and Republicans sounding more urgent about
preparing for the ruling.
The high court will hear arguments in early March over whether the
health-care law allows people in states without their own insurance
markets to receive federal tax credits that reduce coverage costs.
The number of uninsured could rise by 8 million if the subsidies disappear, two independent think tanks have estimated.
“We have to have a contingency plan,” House Ways and Means Committee Chairman Paul Ryan, R-Wis., said Friday.
Republicans and Democrats agree that a ruling for the plaintiffs
could wipe out subsidies for millions of Americans, in three-fourths of
U.S. states, and result in the law being rewritten.
A ruling is not expected until at least June. Ryan did not say Friday
when a contingency plan would be finished but made clear it would not
be fixes to the law.
“The idea is not to make ObamaCare work better or actually authorize ObamaCare,” he said.
Republicans, who control Congress after having won the Senate in
November, say dismantling ObamaCare remains a priority. But they appear
to think their best chance of undoing the 2010 law is the court case.
And they have so far taken a wait-and-see approach, instead of trying to
immediately repeal the law or dismantle it in parts.
Questions are being asked about the four challengers’ legal right to
bring their lawsuit, though experts don’t think court will be deterred
in deciding King v. Burwell, referring to Health and Human Services
Secretary Sylvia Burwell.
The challengers, who live in Virginia, object to being forced to get
insurance or pay a penalty. If the subsidies were not available, they
would not pay a penalty for failing to be insured because even the
cheapest health plan would be too costly, according to sworn statements
they filed in 2013.
But the Wall Street Journal reported that two are Vietnam veterans
who probably could obtain health care through the Department of Veterans
Affairs, meaning they would not be affected by the subsidies issue. The
newspaper and Mother Jones reported that a third plaintiff lived in a
motel at the time that her address and age were used to calculate the
cost of insurance. She now lives elsewhere in the state.
The fourth is a substitute school teacher in Richmond who said she could not recall how she became involved in the case.
The Competitive Enterprise Institute, an anti-regulatory group, is paying for the legal challenges and recruited the four.
The right to get into court on an issue is known as standing.
"The important thing is there has to be someone in the case who is
actually injured by the law," said Tara Grove, a law professor at the
College of William and Mary in Williamsburg, Virginia. "That is what
determines whether the court has jurisdiction." It takes just one person
who has been harmed to keep a lawsuit alive, Grove said.
The Obama administration or the justices could ask lawyers for the
challengers to address the questions that have been raised about the
four. The Justice Department contended that two would have earned too
little to be subject to the penalty, but lower courts rejected that
argument. The administration did not challenge the presence of any of
the four at the Supreme Court.
The court could raise the topic on its own. But given its decision to
take up the health law even in the absence of the usual requirement
that lower courts be divided on an issue, several legal experts doubted
the plaintiffs' situations would derail the case.
"For a test case, these are not the best people one could put
forward. It's hard for them to demonstrate that they've had an actual
injury," said Robert Dudley, a professor of government and politics at
George Mason University in Fairfax, Va.
But the court creates its own rules on whether it can reach a
decision in a case, Dudley said. "I can cite the rules, but it's up to
the court and the court will often take some very shaky cases because an
issue is important. I honestly think this won't affect the court much,"
he said.
Questions about a party's standing seem to become important at the
Supreme Court only when a majority is unwilling to settle an issue or
the court is unable to produce five votes for any particular outcome. In
2013, the challenge to California's Proposition 8 same-sex marriage ban
foundered on the issue of standing. The result left in place a lower
court ruling holding that the ban was constitutional.
Jonathan Adler, a law professor who helped formulate the challenge to
the subsidies, said efforts to sink the case over questions about the
plaintiffs fit with the desire of the administration and health law
supporters to delay a resolution of this case. Adler said they believe
that it becomes harder to undo the tax credits the longer people receive
them. "It would surprise me if the information in the affidavits
wasn't true and there was suddenly any problem for all the plaintiffs in
this case," Adler said.
Supporters of the law said questions about the plaintiffs make a broader point about the case.
"To me, what all this confirms is that people who weren't really
affected by the statute are bringing ideologically and politically based
claims that will substantially affect millions of other people. This is
the use of the courts as a political forum," said Robert Weiner, a
former Justice Department official who was deeply involved in the 2012
Supreme Court case that upheld the law.
There's nothing unusual about interest groups on the right and the
left driving suits and seeking plaintiffs willing to be the faces of a
court fight, Grove said. "You know courts are influenced to some degree
by the facts of the case," she said. "It's just good lawyering to make
sure you have clients who are sympathetic."
