Standing and Ripeness Issues in the Lawsuits Against Obamacare

This is the first in my projected series of posts on issues likely to arise in the various lawsuits challenging the constitutionality of the Obama health care bill. To briefly recap, the lawsuits in question are one filed by 13 state governments challenging the individual mandate and various mandates and grant conditions imposed by the states, one independent suit filed by the state of Virginia, and a little-noticed but potentially important case filed by the Thomas More Law Center on behalf of four individual citizens who object to the individual mandate and refuse to obey it.

The really important issues raised by these suits have to do with federalism, the Commerce Clause, and Congress’ power to tax. However, administration lawyers will probably try to get the lawsuits dismissed on procedural grounds of standing and ripeness.

As discussed below, I think eventually a case will arise that meets even the most rigid standing and ripeness standards. At the very least, it should be possible to bring such a suit once the individual mandate takes effect in 2014. By that time, however, public anger against the health care bill might have diminished, at least some parts of the bill will have been implemented, and it will be much harder to uproot. Thus, it is in the Obama administration’s interest to persuade the courts to postpone consideration of these issues for as long as it can.

I. Standing.

The Supreme Court has repeatedly ruled that citizens cannot file federal lawsuits challenging a statute unless they have 1) suffered some sort of past or imminent material injury, 2) the injury was caused by the law, and 3) it can be redressed by a judicial decision. I think it’s fairly clear that the individual citizens represented by the TMLC fit these requirements. The health care mandate will require them to pay for health insurance (a material injury in the form of losing money), the injury was surely caused by the law, and it can just as certainly be redressed by a judicial decision striking down the mandate. It is also clear that state governments have standing to challenge the various mandates and federal grant requirements imposed on them by the bill.

On the other hand, it is far less obvious that the state governments have standing to challenge the individual mandate. The mandate imposes obligations on individual citizens, not state governments. It’s possible that it will cost states money in various indirect ways. However, standing doctrine generally frowns on speculative, indirect injury claims.

Ironically, the states’ position might well be saved by the Supreme Court’s controversial decision in Massachusetts v. EPA, which held that Massachusetts and various other state governments had standing to challenge the EPA’s refusal to regulate auto emissions in order to combat global warming. The injuries claimed by the states in that case were highly speculative to say the least, including claims that Massachusetts’ coast line would be seriously damaged by global warming over a period of many decades. It was also far from clear that these were caused by the EPA’s decision or that they could be redressed by a judicial ruling against the EPA. After all, as the dissenting justices pointed out, US auto emissions are only a tiny fraction of total world greenhouse emissions (about 6%), and even rigorous EPA regulation would fall far short of eliminating all American auto emissions. The Supreme Court majority got around these arguments by ruling that the standing rules that apply to state governments are much looser than those that apply to individuals; states, they ruled, are ““entitled to special solicitude” on standing issues. Perhaps the same logic applies to the state governments challenging Obamacare, with their speculative claims that the individual mandate will harm them in various ways.

The irony here is that the EPA case was decided by the five most liberal justices – the ones least likely to be sympathetic to the Obamacare lawsuits, while the four most conservative justices dissented in that case and have more generally supported stringent standing rules. On this issue, I tend to agree more with the liberal justices. I don’t believe that the text and original meaning of the Constitution impose rigid standing requirements; I’m not even convinced that they impose any standing requirements at all, given that Article III gives the courts the power to rule on “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made” and all “Controversies to which the United States shall be a Party.” It seems to me that you can have a case – and certainly a “controversy” – without having any kind of material harm involved. On these issues, my view is very different from that of most right of center legal scholars, including co-blogger Jonathan Adler, who was very critical of the Court’s decision in Massachusetts v. EPA.

Be that as it may, it will be interesting to see which way the courts go on this. In particular, I wonder if this case will lead liberal judges to endorse restrictive standing rules and conservative ones to oppose them – unaccustomed positions for both sides.

II. Ripeness.

The feds could also argue that the lawsuits should be thrown out of court because they don’t meet the procedural requirement of “ripeness.” The Supreme Court has ruled that a suit should be dismissed for lack of ripeness if it “it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Unlike in the case of the standing issue, I think the Thomas More plaintiffs may be vulnerable on ripeness. After all, the individual mandate they are challenging will not take effect for four years. In that time, the plaintiffs may choose to buy health insurance after all, the government might alter the rules of the mandate, and the authorities might not even try to enforce the mandate against these particular individuals. Perhaps these and other possible scenarios render the claim one that depends on “contingent future events that may not occur as anticipated.” The same point applies to the possible impact of the individual mandate and other parts of the law on state governments.

Unfortunately, I have very little expertise on ripeness doctrine. So it’s very hard for me to assess either which side is right on this point or what courts are likely to do with the issue. I flag it primarily in the hopes of stimulating commentary by civil procedure scholars and others with relevant expertise.

III. Why these Procedural Issues Matter.

Even if the government prevails on standing or ripeness, it will merely postpone the day of reckoning. Eventually, the individual mandate and other controversial elements of the bill will come into effect (unless, of course, the Republicans somehow manage to repeal them). At that point, the case will surely be ripe, and it will be easy to find plaintiffs who have standing to challenge the mandate, even under very restrictive rules.

However, a lengthy delay might work to the advantage of defenders of the law. As I explained here, courts are unlikely to strike down a major federal statute with strong political support. They might be more willing to act against one that is highly unpopular, as the health care bill is today. By 2014, public anger at the bill might diminish and a reelected President Obama might be much more popular than he is now, perhaps buoyed by a recovering economy. Of course it’s also possible that Obama will be defeated in 2012 and that his health care bill will be less popular in four years than it is now. On balance, however, I think that the defense is more likely to benefit from delay caused by procedural factors than to be harmed by it.