legal standing

The Growing Scandal of King v. Burwell

FILE - In this Feb. 12, 2008, file photo, Chief Justice John G. Roberts, Jr., is seen in Providence, R.I.  Turned away at the Supreme Court, congressional Republicans sketch a filibuster-proof strategy to repeal the nation's health care law in 2013.  But it hinges on two uncertainties ― Mitt Romney capturing the White House and the party seizing even narrow control of the Senate (AP Photo/Stephan Saviola, File)

Sometimes the lede buries itseslf; the point will hide in plain sight. It is an easy thing to do, hiding in plain sight, when nobody is looking for you:

The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: “What’s it to you?”

To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.

Which brings us to the four plaintiffs in the latest threat to President Obama’s health care law, to be heard next week. Recent news reports have raised the question of whether any of them has a dog in the fight.

But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do. The court is sometimes accused of being opportunistic in using the standing doctrine to avoid legal questions it wants to duck, but ignoring the issue when it is eager to weigh in.

(Liptak)

Two sentences; did you miss them?

No, really, this is important: “But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do.”

One of the hallmarks of the Roberts Court is its disrespect for standing case law and precedent. The Chief Justice is an example of why the longstanding conservative complaint about liberal judicial activism is a swindle. John Roberts seems to apply more of an “if it feels good, do it” attitude to the judiciary, but at the same time he’s conscious of appearances, which is why conservative majorities on the Court will occasionally do that weird thing where they overturn case law but then disclaim that they’re not overturning anything, such as we’ve seen in Ricci (Civil Rights Act) and Texas (Voting Rights Act). And there is also the conservative majority’s clear tendency to throw cases for politics by carving out one-time exceptions to the law, such as we saw in Safford, in which a school was forgiven a sex offense because ignorance is bliss and, well, why would a young girl be upset by adults forcing her to strip down so they can leer and prod at her body, and Ricci, in which the New Haven Civil Service Board followed the law but was held in fault for doing so.

One of the reasons this Court is so hard to predict is, in fact, its inconsistency. And the reason it is hard to pin down that inconsistency is because it is so inconsistent. To the one, it is not a purely institutionalist streak. To the other, it is not purely traditionalist. Rather, it seems Chief Justice Roberts is happy to keep pushing the image of calling balls and strikes just as long as nobody points out that the strike zone keeps changing.

The Constitution is John Roberts’ playground, nothing more. Inconsistency will be the hallmark of his chiefdom. (more…)

More on King v. Burwell

The Supreme Court building in Washington, D.C.

A thematic question: At this point, how is it still a question?

There is a bit somewhere in a book about the Universe asserting what seems nearly circular, that we know what we know is right because it is what we know. That is, of course, an insufficient paraphrase, a memory of how the point felt, but it is also true that if what we think we know is that wrong, there would be no satellite communications. Try a simpler version. If you know a football coach, test a proposition; there is only so long one can hear people say a professional athlete “sucks”. Not a good day, maybe in a larger slump, but you don’t distill in the process and elevate to that valence if you suck. One might think similar things of, say top-tier electoral politics, but no, it doesn’t work that way. It is supposed to, or so we might imagine, except Sarah Palin was nominated to run for vice-president once upon a time, and we all watched Mitt Romney’s disastrously ill-executed campaign for the presidency in two years ago.α

Certes, such comparisons are notoriously vague, but here is the theme: At some point, we cannot maintain confidence if certain properties remain variable and unresolved; if questions of a particular nature and context remain in effect, how is the larger paradigm expected to function at a given valence?

Or perhaps we should simply start with standing. A juristic context. We considered the issue briefly, yesterday, but something about awestruck disbelief seems to have gotten the better of us.

Point being that one might wonder how standing could remain a potentially affecting question when a case reaches the Supreme Court.

Just sayin’.

However, Louise Radnofsky and Brent Kendall bring the question back to focus for The Wall Street Journal:

One of the plaintiffs in the Supreme Court case against the Affordable Care Act listed a short-term-stay motel as her address when she joined the lawsuit, potentially calling into question her basis for suing.

Rose Luck is among four plaintiffs suing the Obama administration to eliminate tax credits under the law that make health insurance cheaper for millions of Americans. They say the wording of the 2010 law allows consumers to tap the credits only in states that run their own insurance exchanges, and not their home state of Virginia, which is one of as many as 37 states that use the federal enrollment system.

And at this point it’s easy enough to make a point about how this sort of technicality shouldn’t matter; after all, the case has survived, anyway, and has achieved SCOTUS valence.

(more…)

The Main Attraction?

Speaker of the House John Boehner (R-OH8)

“Just because some Republicans want to pretend that before January 2009 presidential power had been limited to pardoning Thanksgiving turkeys doesn’t mean they are right.”

Jonathan Bernstein

And the hits keep coming. ‘Tis a bold headline for Bloomberg View: “Boehner Betrays Congress”, and Jonathan Bernstein leaves little room for doubt about his perceptions:

I’ll say it again: Speaker John Boehner and House Republicans aren’t asking for authority to be returned from the White House to Congress. They want an imperial judiciary that could trump either of the elected branches.

Jonathan Bernstein (via BloombergView)In a system of separated institutions sharing powers, which is what the Constitution created, all three branches do things that look a lot like legislating, but laws can trump administrative or judicial rule-making. That gives Congress serious clout within the system. This lawsuit, however, is an abdication of that clout. In effect, it says that the courts, not Congress, should have the last word when there’s a dispute between branches.

Filing this lawsuit amounts to institutional treason. Boehner and House Republicans should be ashamed. The rest of us can only hope that the courts rescue them by keeping to precedent and tossing this lawsuit into the garbage.

To the other, the suit is filed. In a way, that is actually surprising. It is not quite that it seems like yesterday that House Republicans found themselves in need of a new lawyer after the one they hired quit the case, owing to the sort of political pressure one’s law firm might apply when one is about to publicly humiliate the firm with an act of juristic malpractice; it wasn’t yesterday, but two months ago. After hyperpartisan lawyer David Rivkin quit the case for having bitten off too much hyperpartisanship for his firm, Baker Hostetler, to chew, the GOP turned to William A. Burck of Quinn Emanuel Urquhart & Sullivan, who had just finished the laborious task of failing to defend former Virginia First Lady Maureen McDonnell.

Late last month, then, we learned that Mr. Burck was also stepping down. Josh Gerstein and Maggie Haberman of Politico summarized the situation thus:

Rivkin’s firm withdrew in September after health-care-related clients pressured the firm to back out of representing the House in the Obamacare-related suit. Two sources told POLITICO in recent days that a similar scenario played out with Burck’s firm, with clients bringing pressure to get the firm off the case.

How about three days ago? Is that close enough to feel like yesterday? For whatever reason, Jonathan Turley of George Washington University decided to take up the case. Lauren French of Politico reported ot Tuesday:

“Professor Turley is a renowned legal scholar who agrees that President Obama has clearly overstepped his constitutional authority,” said Michael Steel, a spokesperson for Speaker John Boehner. “He is a natural choice to handle this lawsuit” ....

.... “Even for $500-per-hour in taxpayer dollars, Speaker Boehner has had to scour Washington to find a lawyer willing to file this meritless lawsuit against the president,” said Drew Hammill, a spokesperson for Minority Leader Pelosi. “Now, he’s hired a TV personality for this latest episode of his distraction and dysfunction.”

(more…)