The Supreme Court Ducks Another Foundational Issue By Claiming Obamacare Litigants Have No Standing to Sue

The Supreme Court has permitted Obamacare to stand, not by ruling on it by the merits, but by disqualifying a lawsuit filed against it by claiming the litigants had no standing to sue as they incurred no concrete harm.

The suit argued -- correctly -- that the only rationale that Bush-appointed liberal Chief Justice Roberts had given to claim that Obamacare was Constitutional was that the entire bill was a "tax," owing to the presence of the individual mandate, and that the power of the federal government to lay taxes as it pleases was nigh-plenary.

But then later, the individual mandate was repealed. Leaving Obamacare naked of the one provision that was risibly claimed to render it constitutional instead of plainly unconstitutional.

Makes sense.

But the bravehearts of the Supreme Court chose to duck the issue by saying that they could not reach the merits of the suit, as the litigants themselves suffered no harm by the repeal of the individual mandate, and thus could not file a lawsuit challenging Obamacare.

One actual conservative -- Justice Thomas -- endorsed this perverse logic, agreeing that the states suffered no concrete harm, and so were litigants without a basis upon which to sue.

Though he did blast Obamacare -- and the Court, for doing all in its power to "the court has gone to great lengths to rescue the Act from its own text."

Alito, joined by Gorsuch, dissented, finding that Obamacare is indeed unconstitutional, writing this "third installment in our epic Affordable Care Act trilogy" uses the pretext of a repealed "tax that does not tax to stand and support one of the biggest Government programs in our Nation's history."

Alito also found that the litigants -- here, the states -- did indeed suffer a concrete enough harm to permit them standing to appear in court.

The U.S. Supreme Court on Thursday upheld the Affordable Care Act on the basis that Texas and several other states lacked standing to file a 2018 lawsuit challenging the individual mandate as unenforceable and therefore necessitating the wholesale destruction of Obamacare on the basis of an unforgiving severability analysis.

In a lengthy dissent exactly twice as many pages long as the comparatively brief and tidy majority opinion, conservative Justice Samuel Alito -- joined by Justice Neil Gorsuch -- said that his peers have essentially ignored decades of precedent to issue a "remarkable" and "contrary" holding that is "based on a fundamental distortion of our standing jurisprudence."

"The States have clearly shown that they suffer concrete and particularized financial injuries that are traceable to conduct of the Federal Government," the dissent argues, endorsing a liberal interpretation of standing. "The ACA saddles them with expensive and burdensome obligations, and those obligations are enforced by the Federal Government. That is sufficient to establish standing."

Not so, says the majority.

"Unsurprisingly, the States have not demonstrated that an unenforceable mandate will cause their residents to enroll in valuable benefits programs that they would otherwise forgo," liberal Justice Stephen Breyer writes. "It would require far stronger evidence than the States have offered here to support their counterintuitive theory of standing, which rests on a 'highly attenuated chain of possibilities.'"

If you see the sleight-of-hand that Breyer is pulling there: He says the states suffer no harm due to the non-enforceability of the mandate itself, and therefore the states have no standing to sue.

Gorusch and Alito say that the relevant question is if the Act itself causes harm to the states, which it inarguably does -- in a legal sense, at any rate.

And so then of course, they should have the right to sue.

The majority says the mandate, which is now effectively dead letter, inflicts no harm.

The dissent notes that the real question is whether the Act inflicts harm-- which it does. So the question should be reached, and Obamacare should be overturned.

But the majority -- alas, including Kavanaugh and Barrett, as well as Thomas -- focus just on the mandate, when the suit itself is whether Obamacare is still constitutional given that the figleaf "tax" which propped it up as constitutional is no longer in operation.

Just vote harder, guys.

And Build Your Own Supreme Court.

posted by Ace at 05:40 PM

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