Blog Ipsa Loquitur

Published on under The News

There’s a great big lawsuit in front of the Supreme Court next month. Actually, they’re all big. The one I’m thinking of is King v. Burwell, and it’s yet another lawsuit over the Constitutionality of Obamacare (née the Affordable Care Act). There’s been a lot of hand-wringing over the law, and litigation over the hand-wringing, and then hand-wringing over the litigation. Boy, isn’t the 21st century great?

In the King lawsuit, the plaintiffs say the government is breaking its own law. Currently, states which didn’t create a web site for their residents to buy health insurance use the federal web site, (It turns out squatters got the – just another example of incompetence in federal IT practices.) The plaintiffs in King argue that the law says people in states using the federal site don’t get subsidized insurance; only people in states that have their own insurance site get discounts.

Put simply, they’re wrong and it’s kind of absurd that anyone takes this claim seriously. The plaintiffs lost unanimously at the 4th Circuit Court of Appeals for this reason. Nicholas Bagley at the Incidental Economist notes:

When it comes to the exchanges, however, the ACA is not a conditional spending program. And it’s not a close call: the ACA doesn’t look like any other conditional spending program in the U.S. Code. Together with Thomas Merrill, Gillian Metzger, and Abbe Gluck, I submitted an amicus brief to the Supreme Court explaining why. (Abbe developed some of these arguments in a blog post last year.)

For starters, Congress isn’t coy about what happens when a state fails to participate in a conditional spending program. It speaks clearly—the state doesn’t get the money—and that consequence is spelled out in a provision that speaks directly to states. That’s how the Medicaid statute works: when a state fails to play by Medicaid’s rules, “the Secretary [of HHS] shall notify such State agency that further payments will not be made to the State.” Direct and clear.

In contrast, the Affordable Obamacare Act doesn’t call for that at all. As Bagley notes, the Supreme Court has a high standard for revocation of federal funds – Congress has to be extremely specific about the conditions under which states can lose their funding. King doesn’t appear to come close. It’d be a major shift for the Supreme Court to let Congress sneak escape hatches into their laws.

Meet the Plaintiffs

So, here’s the deal. This case is strange because the plaintiffs are almost law school exam weird. Stephanie Mencimer at Mother Jones explains why:

I set out to track down the plaintiffs to hear in their own words why they had decided to take part in the case, and it soon became evident that CEI had struggled to find suitable candidates. Three of the four plaintiffs are nearly eligible for Medicare, meaning their objections to Obamacare will soon be moot.

This is important because you can’t sue for an injury if you… don’t have an injury. The fact that most of the plaintiffs will soon get even cheaper insurance from the government than they could from the private companies on the Obamacare web site? No harm, no foul.

Two of them appear to qualify for hardship exemptions – that is, they are not forced to acquire insurance or pay fines because even with a subsidy insurance would eat up too much of their incomes – so it’s unclear how Obamacare had burdened them.

So in addition to getting Free Government Insurance For Life in the next year or two, some of the plaintiffs also get to skip out on Obamacare altogether because they have a financial hardship today. Okay. Well, all they need is one plaintiff with an actual legally redressable injury. It just seems odd that they grabbed four, and there are five big problems.

Also, one of the plaintiffs is a veteran who receives free healthcare from the government, meaning he doesn’t have to pay for private insurance from the Obamacare site either. So, uh, six big problems.

Yet most curious of all, one of the plaintiffs did not recall exactly how she’d been recruited for the case and seemed unaware of the possible consequences if she wins. Told that millions could lose their health coverage if the Supreme Court rules in her favor, she said that she didn’t want this to happen.

Mencimer has profiles of each of the plaintiffs in her piece, but if I’m the lawyer for these folks, I’m telling them to stop talking to the press yesterday. And also, if I’m the lawyer for these folks, I’m probably not talking to the press either:

[Plaintiffs’ lead attorney Michael] Carvin, an attorney at the law firm of Jones Day, bristled when I asked him whether the difficulty in securing solid plaintiffs suggested that there are not many Americans interested in wiping out health coverage for millions of their fellow citizens.

“Linda Brown was the only plaintiff in Brown v. Board of Education,” he retorted, invoking the famous Supreme Court case that led to school desegregation. “Does that suggest there weren’t a lot of people who supported her point of view?” (In fact, Linda Brown was one of 13 plaintiffs in that case, which was filed as a class action. The Supreme Court decision in Brown also included four other cases dealing with public school segregation that had been consolidated. The combined cases in Brown involved dozens of plaintiffs.)

Oh, honey.

One More Thing

In point of fact, the Mencimer article starts out with a recitation of scary conservative bogeymen, which may or may not double as SEO terms. The subtext is that this lawsuit is orchestrated by powerful political interests on The Other Side. And wouldn’t you know? Those scary bogeymen have lots of money! They’re starting lawsuits on purpose!

But Brown v. Board of Education itself was the culmination of a very carefully orchestrated legal campaign. The NAACP’s Legal Defense and Education Fund (including the future Supreme Court Justice Thurgood Marshall) picked and chose winning plaintiffs and lawsuits for decades before they ever got to Brown. So, uh, let’s not get carried away with the bogeyman.