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King V Burwell and the Supremes’ view of “standing”

“Federal courts are courts of limited jurisdiction,” the acting United States solicitor general explained to the Supreme Court in a 1990 argument. “The presumption is that they are without jurisdiction, and the plaintiff must affirmatively prove that he has standing to invoke the power of the court.”

That’s a quote from Supreme Court Chief Justice John Roberts – given that Roberts and his fellow Justices will be ruling on the suit that seeks to disallow subsidies for policies obtained via the Federal health exchange, it has special meaning.

The suit, funded by the Koch-backed Competitive Enterprise Institute, is ostensibly being brought by four plaintiffs who, in theory, have to prove they were harmed in order to have “standing”.  In a nutshell, “standing” means that if you aren’t harmed by an action, then you can’t complain about it.  I may not like the speed limit in Hawaii, but since I never go there I have no standing to sue.

As several news outlets have reported, three plaintiffs don’t have much to complain about; this from the Wall Street Journal:

Legal experts say the fact that Mr. King could avoid paying the penalty for lacking insurance by enrolling in VA coverage undermines his legal right to bring the case, known as “standing.” The wife of a second plaintiff has described her husband on social media as being a Vietnam veteran. The government previously questioned the standing of a third plaintiff on the grounds that her income may exempt her from paying the penalty for lacking insurance, but a lower court didn’t address the issue.

The fourth plaintiff, Brenda Levy, is Medicare-eligible in June of this year – about the time the Court would rule on the case.  As I am NOT a legal scholar or lawyer, and don’t even watch legal shows on TV, I’m not qualified to say whether Medicare eligibility changes “standing” (Medicare recipients can’t be forced to carry insurance under PPACA as they are covered by Medicare).  If it doesn’t, then the case will go forward as even one plaintiff with standing is enough.

That said, this Court seems – to my uneducated eye – to use “standing” to avoid ruling on contentious issues.

What does this mean for you?

Hard to say, as handicapping this Court is a fool’s game.

2 thoughts on “King V Burwell and the Supremes’ view of “standing””

  1. You can like it or disagree–I assure the Court won’t care and won’t change their focus. I handled a claim in Federal court for two years until the Appellate Court kicked it out for lack of standing and subject matter jurisdiction. They apologized to the parties and counsel for taking so long to kick it out. We still had to take it to state court.

  2. Is standing even an issue being raised by the appellants? I haven’t read the briefs, so I don’t know. If not, this discussion is irrelevant.

    I understand standing to be a sometimes complex issue, but, at least in this case, I would guess that standing is more likely to be determined based on the plaintiff’s position at the time the suit was filed, not at the time that it is appealed to the U.S. Supreme Court. However, that would not always be the case.

    The other thing that needs to be said about this is that the fact that the plaintiffs are a bit sketchy is not surprising to anyone that knows how these cases get put together on issues like this when an activist group wants to get an issue before the Supreme Court. Both the political left and right do the same thing. They work to create a set of facts in a particular district where a court is likely to rule in a way that will get the case to the Supremes in a manner that makes it hard for the high court to rule in another way. They need plaintiffs that will go along with pulling that together. By the time the case gets to the high court, the individual plaintiffs are often not terribly important.

    That may not be right, but it is how it works. The way that many of the high profile privacy cases we all know about got put together make for some really interesting stories. Someone should write a book.

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Joe Paduda is the principal of Health Strategy Associates



A national consulting firm specializing in managed care for workers’ compensation, group health and auto, and health care cost containment. We serve insurers, employers and health care providers.



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