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Understanding Why Judge O'Connor Was Wrong to Conclude Plaintiffs Had Standing to Challenge the Penalty-Less Individual Mandate

Judge O'Connor was wrong to conclude that two individuals who would prefer not to purchase health insurance had standing to challenge the law.

Last week, Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas held that the entire Affordable Care Act is invalid. This opinion is flawed on multiple levels, for reasons I explained in this post (and this NYT op-ed). Among other things, Judge O'Connor completely botched the severability analysis to conclude that the entire ACA should be struck down because Congress amended the law to zero out the tax penalty that had been used to enforce the so-called "individual mandate." Yet Judge O'Connor should never have even reached the severability question, as he lacked jurisdiction to hear the states' challenge to the mandate's constitutionality.

Under Article III of the Constitution, plaintiffs in federal court must have "standing" to press their claims. Standing, in turn, requires that the plaintiff have suffered an injury-in-fact that is both actual or imminent and concrete and particularized; that this injury is fairly traceable to the allegedly unlawful action; and that the injury be redressable by a favorable court decision. The party seeking to invoke the federal court's jurisdiction -- in this case, the twenty plaintiff states and the two individuals who joined the lawsuit -- bears the burden of showing that the standing requirement has been met. Despite Judge O'Connor's conclusion to the contrary (and the Justice Department's inexplicable failure to raise standing in the case), none of the plaintiffs have standing here.

In a prior post, I explained why Texas and the other plaintiff states lacked standing. In his opinion, Judge O'Connor sidesteps the question of state standing, focusing instead on two individuals who joined the lawsuit. The end result should have been the same though, and largely for the same reason: Because an individual who fails to purchase qualifying health insurance faces no legal or practical consequence for their decision, there is no injury, and therefore no standing. It's that simple.

Judge O'Connor tries to get around this conclusion by suggesting that because the plaintiffs believe they are bound by the ACA's minimum coverage requirement, this is sufficient to establish standing. The problem is, there is nothing in standing caselaw to support this conclusion. Judge O'Connor writes:

In warning lower courts not to conflate the "actual-injury inquiry with the underlying merits" of a claim, the Fifth Circuit recognizes that standing can be established where a plaintiff alleges that a federal statute or regulation "deters the exercise of his constitutional rights." Duarte [ex rel. Duarte v. City of Lewisville], 759 F.3d [514] at 520 [5th Cir. 2014]. Here, the Individual Plaintiffs allege just that. They claim "Section 5000A's individual mandate exceeded Congress's enumerated powers by forcing Individual Plaintiffs to
maintain ACA-compliant health insurance coverage." Am. Compl. ¶ 49, ECF No. 27. Intervenor Defendants, meanwhile, contend the Individual Mandate remains a constitutional exercise of Congress's tax or regulatory authority. As a result, the "conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979) (quoting Railway Mail Assn. v. Corsi, 326 U.S. 88, 93 (1945)). The Individual Plaintiffs have therefore sufficiently alleged an injury in fact that sits at the center of a live controversy.

This effort to establish standing might sound convincing to one who is not familiar with the relevant caselaw, but it utterly fails -- as even a cursory review of the cases Judge O'Connor cites will show. In each of these cases, the parties seeking to establish standing were potentially subject to significant legal consequences if the laws they sought to challenge were valid as applied to them. And in each case, this threat of sanction was essential to the conclusion that the plaintiffs had standing. So, for instance, in Babbitt (in the very next sentence after the one quoted by Judge O'Connor), the Court explained: "A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement."

This same point is made in Duarte, where the U.S. Court of Appeals for the Fifth Circuit (quoting prior Supreme Court precedent) noted that "it is not necessary that petitioner first expose himself to actual ... prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." Because the statute at issue threatened real penalties for violating the law in question, the plaintiffs "fears of liability [were] not 'imaginary or speculative.'" As the Fifth Circuit noted subsequently in Contender Farms, L.L.P. v. U.S. Dept. of Agriculture (another case relied upon by Judge O'Connor), it was the "practical impact" of the law at issue in Duarte that "demonstrated a level of interference as to their lives that was sufficient to establish standing to challenge the regulation."

Unlike the parties in Babbitt or Duarte or Contender Farms (or any of other myriad cases that address this point), the individual plaintiffs in Texas v. U.S. cannot claim (let alone demonstrate) that they will suffer any legal liability should they fail to obtain qualifying health insurance, nor do they really try. After all, as the federal government conceded and Chief Justice Roberts explained in NFIB v. Sebelius, "Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS." And now that the required payment is zero, there is no negative legal consequence whatsoever from failing to purchase qualifying insurance.

The plaintiffs attempt to argue that they are injured because they purchased insurance in order to comply with the law, but this does not cut it either, as such self-inflicted harm is never sufficient to demonstrate standing. 4 U.S.C. §8 details how people are supposed to treat the American flag, yet no one could argue they have standing to challenge this provision of the U.S. Code because they sought to comply with this provision at their own expense. The government would like Americans to purchase "minimum essential coverage," and has said so. But unless and until the government imposes a consequence on those who fail to comply, there is no basis for challenging this provision of the U.S. Code. As Nicholas Bagley notes, in order to have standing, "it's not enough that you feel compelled; you must actually be compelled."

In a recent VC post, Professor Josh Blackman suggests some additional arguments in favor of standing here, but none of them are particularly persuasive. First, Professor Blackman notes that there are cases in which plaintiffs are able to establish standing despite the lack of a "pocketbook injury," yet in all such cases there is still an actual or imminent injury that is concrete and particularized. So, for instance, in environmental cases plaintiffs can often establish standing by showing that they regularly use or visit a specific place that is threatened by the violation of federal law. Standing is shown in such cases because the plaintiffs are able to claim that their ability to continue making use of the place in question is threatened, and this loss of opportunity is a cognizable injury (particularly given the statutory recognition of such claims). Note, however, that such plaintiffs are able to allege specific, concrete consequences to them caused by the actions they are challenging -- the loss of the opportunity to continue to engage in regular activities at a particular place -- something the plaintiffs cannot allege here.

As Professor Blackman notes, the Court found standing without pocketbook injuries in Arizona Christian School Tuition Organization v. Winn and Van Orden v. Perry, but this is due to a well-established (and quite controversial) exception to normal standing requirements that the Supreme Court has recognized in the Establishment Clause context. As the Court made explicitly clear in the passage Professor Blackman quotes:

Standing in Establishment Clause cases may be shown in various ways. Some plaintiffs may demonstrate standing based on the direct harm of what is claimed to be an establishment of religion, such as a mandatory prayer in a public school classroom. . . . Other plaintiffs may demonstrate standing on the ground that they have incurred a cost or been denied a benefit on account of their religion. Those costs and benefits can result from alleged discrimination in the tax code, such as when the availability of a tax exemption is conditioned on religious affiliation.

This is not particularly helpful to the Texas plaintiffs, neither of whom can identify any "direct harm" caused by 26 U.S.C. § 5000A(a). The Winn Court goes on to discuss the "narrow exception" allowing taxpayer standing in Establishment Clause cases under Flast v. Cohen, but this doesn't help the Texas plaintiffs either. Note also the plaintiffs in Winn could not establish establish standing either, even under the more lenient standard that prevails in the Establishment Clause context.

In search of authority to support the plaintiffs' standing claims, Professor Blackman quotes Allen v. Wright for the proposition that "'the stigmatizing injury often caused by racial discrimination' can give rise to standing, even where there is a 'noneconomic injury,' so long as that injury is personally suffered by the individual." Fair enough, but this only serves to buttress the point that the Texas plaintiffs lack standing. For while the Court in Allen noted the seriousness of such "stigmatizing injury," it emphasized that the existence of such stigma, by itself, is insufficient for Article III standing. As the Allen Court explained in rejecting this basis for standing:

There can be no doubt that this sort of noneconomic injury is one of the most serious consequences of discriminatory government action and is sufficient in some circumstances to support standing. . . . Our cases make clear, however, that such injury accords a basis for standing only to "those persons who are personally denied equal treatment" by the challenged discriminatory conduct.

In other words, the stigma, by itself, is not enough. So even though the plaintiffs in Allen could plausibly allege that the challenged government policy had economic effects that facilitated racial segregation, the Court found no standing. Thus it's immaterial that the government's declaration that all Americans must have insurance may induce some people to buy health insurance and that this may, in turn, have some effects on health care markets. Such attenuated effects are insufficient under Article III.

Professor Blackman concedes that he "was unable to find any cases where a non-economic injury was asserted in cases concerning the Commerce and Necessary and Proper Clauses," yet argues "whether a given case involves a challenge based on the doctrine of enumerated powers, rather than the First or Fourteenth Amendment. Indeed, this distinction ought to be without a difference." As already noted, the Court has flatly rejected this claim in the Establishment Clause context, and in the Equal Protection context direct harm caused by the government action at issue is still required. There may not be many relevant cases involving enumerated powers, but the U.S. Reports are filled with regulatory cases in which plaintiffs allege non-economic injuries, and they all reach the same conclusion: Non-economic injuries may be cognizable, but they must be actual or imminent, concrete and particularized injuries, and they must be the direct consequence of the government action at issue.

In order to demonstrate Article III standing the plaintiffs need not establish the merits of their claim, but they must be able to allege facts that, if true, would be sufficient to satisfy the requirements of Article III. It is this that the Texas plaintiffs utterly failed to do. As a consequence of the 2017 tax bill, 26 U.S.C. § 5000A no longer imposes any legal or practical consequence on those who fail to obtain qualifying health insurance, nor are the plaintiffs able to allege otherwise. They identify no meaningful consequence that will befall them should they drop their coverage, nor does Professor Blackman.

Whatever one thinks of the other arguments in play, or the desirability of the Affordable Care Act, Judge O'Connor lacked jurisdiction to hear this case. It should have been dismissed on standing, and I like to think that the U.S. Court of Appeals for the Fifth Circuit will not repeat Judge O'Connor's mistake.

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  • Brett Bellmore||

    "Under Article III of the Constitution, plaintiffs in federal court must have "standing" to press their claims."

    That seemed a bit odd, so I re-read Article III to refresh my memory. Yup, not a word in there about "standing".

  • JesseAz||

    Standing as practiced is horribly flawed. It allows a one way ratchet in regards to some laws and benefits.

  • Rev. Arthur L. Kirkland||

    Yup, not a word in there about "standing"

    Maybe it was hidden behind Obama's Kenyan birth certificate?

    Carry on, clingers . . . with more legal insights of this caliber!

  • Last of the Shitlords||

    And once again Arty pukes up his usual bullshit, instead of contributing anything of value. No wonder you're a high school drop out assistant custodial staff working at minimum wage.

  • Rev. Arthur L. Kirkland||

    His standing "argument" is daft. Perhaps you could attempt to defend it?

    Try to do a better job than you have offered in attempting to defend the clustermucks in Iraq, Afghanistan, and Saudi Arabia; Trump; white nationalism; and general right-wing nuttery.

  • Brett Bellmore||

    It wasn't an argument, Rev. It was just noting that Adler was conspicuously wrong about standing rules deriving from Article III.

    Love them, hate them, that's not where they come from.

  • Rev. Arthur L. Kirkland||

    The concept of stand derives from the Case or Controversy Clause, except perhaps in the Sovereign Citizen Simpleton's Guide To The Constitution.

  • David Welker||

    Rev:

    You don't go from the Case or Controversy clause to the law of standing by pure logic. It takes judicial decisions to get there. To say there is no case or controversy because there is no standing is to say something more than the text of the Constitution requires. Under the rules of the English language, was there a "controversy" of some sort to be resolved here? Yes, there was. But under Supreme Court precedent, that is not the sort of controversy that gives you standing. And that does not derive inevitably and obviously directly from the text of Article III. It takes judicial reasoning and precedent to get you there.

    And sovereign citizen's aren't entirely crazy, so-called "paper terrorism" aside. If only EVERYONE remembered that "We the People" are the first words in the Constitution. Sovereign citizen's have started from a good premise, but made some leaps in logic that have gotten them in trouble.

    Hmm... if you ask me, the same goes for standing. There is no controversy here? As a matter of law, maybe. But as a matter of logic and text? So, maybe the main difference between sovereign citizens and the Supreme Court justices is a matter of social position rather than pure logic?

  • Kyfho Myoba||

    1st of all, no one in the patriot/legal reform movement is so stupid as to refer to themselves as a "sovereign citizen". They simply call themselves what they are: sovereign. Is Queen Elizabeth a citizen? Of course not. The very definition of a citizen excludes sovereignty.

    2nd. IANAL, but isn't it a maxim of law that "failure to object timely is fatal"? And that if DOJ declined to object to the standing of the plaintiffs, they agreed to it? And that contract (agreement) rules all in law? It's not like subject matter jurisdiction, that cannot be established by agreement of the parties.

    Inquiring minds want to know.

  • Formerly Known as Stash||

    Questions of subject matter jurisdiction cannot be waived. If a court does not have subject matter jurisdiction any judgment is void and can be collaterally attacked. Hence, courts generally have an independent duty to examine their jurisdiction, even if the parties don't bring it up. That's why the judge in this case put standing analysis in his opinion. If due to lack of standing there is no "case or controversy" within the meaning of the Constitution, then the matter is outside the jurisdiction of the federal courts. And, waiver is not a hard and fast rule. Generally, "plain error" is not waived, and appellate courts have discretion to ignore the waiver. Waiver is basically a claims processing rule to make sure that litigants make all their arguments before the trial court and not make tardy or last minute arguments that disrupt efficient adjudication of the controversy.

  • NToJ||

    "It takes judicial decisions to get there."

    That's true of all clauses in the Constitution. Including the clauses used to invalidate the ACA. There's no "Congress has only express and enumerated powers" clause in the Constitution. Judicial review itself has to be intuited.

    "Under the rules of the English language..."

    The Constitution uses terms of art. "Corruption of Blood" doesn't mean septicemia.

    "...is a matter of social position rather than pure logic?"

    Well the plaintiffs in this case are not asking the federal judiciary for its social position. They're asking for an order.

  • NToJ||

    Standing is just the legal term judges use when referring to the case or controversy requirement. The "standing rules" are just the rules governing the "Cases" or "Controversies" limitations on the federal judiciary's power.

  • Westmiller||

    Agreed. Adler MAY have made a solid case based on precedent, but not the Constitution.

    Since the Supremes agreed that ACA is *unconstitutional* with respect to due process (rather than the taxing "authority"), any citizen should be able to pursue the remedy of abolishing the entire Act.

  • NToJ||

    When did the Supremes agree that the ACA is unconstitutional re: due process?

  • Dilan Esper||

    When we pass that Amendment that replaces Article III judges with whatever Brett Belmore thinks it means, your observation will be relevant. It isn't now (and by the way, standing rules have a long history and were surely incorporated in the common law system adopted by the Constitution).

  • Brett Bellmore||

    They may well have a long history, they may have originated the way you say, but the one thing they aren't, is found in Article III.

    And however defensible they are when one citizen wants to sue another, when the defendant is government, "standing" is used way too often to insulate unconstitutional practices from review. I especially despise the requirement that the injury be particularized, as it allows the courts to dodge cases where everybody suffers the injury.

  • Dilan Esper||

    1. Of course they are in Article III. The "judicial power" is the powers of a common law judge, and a case with no injury, causation, or redressibility is not a "case or controversy".

    2. A particularized injury is not the same thing as an injury nobody else suffers. If the local chemical plant poisons everyone in town, then everyone has Article III standing.

  • David Welker||

    This definition of "controversy" is not in the Constitution.

    The words "injury" and "causation" and "redressibility" are not in Article III.

    www.law.cornell.edu/constitution/articleiii

    It is healthy when "We the People" notice when Supreme Court interprets text in a way that impacts us all, but is not required. And people who disagree with Supreme Court precedent can be perfectly decent people. Some go so far as to think that Dred Scott was wrongly decided under the Constitution before the Civil War amendments. Crazy, I know, right?

  • Dilan Esper||

    Of course it's "in" the Constitution.

    It may not be specifically enumerated in the text of the Constitution, but only complete idiots think that the Constitution is divorced from its history and context.

    Standing rules were part of the judicial power in the English common law system. That system was imported into the US and was enacted as the "judicial power" in Article III. (If you have any doubts about this, read the Seventh Amendment.) The judicial power only extended to "cases or controversies", i.e., those things the common law legal system considered a case or controversy in 1787.

    And that's literally all you need to get modern standing law. It's in the Constitution.

  • David Welker||

    Dilan:

    Your assertion that the law of the previous regime is somehow silently incorporated into the Constitution is making a big assumption. If that were the case, wouldn't much of the Bill of Rights be redundant since these rights were recognized at English common law? And if the Constitution had been intended to impose English common law after a successful revolution, shouldn't it have said so in the text so that the public could better debate the question before ratification?

    And as for the Seventh Amendment, it mentions common law. It doesn't mention English common law. Nor does it authorize the common law. One might think that Congress could, under its power to control the jurisdiction of the courts, either authorize or curtail their ability of the judiciary to create judge-made common law. The Seventh Amendment, like the rest of the Bill of Rights, is a source of restrictions on government power, not an authorization.

    The bottom line is that you are making quite a few debatable inferences.

  • ||

    A violation of the Constitution is a controversy under the Constitution. End of story.

    Brett is totally right- standing is a just an excuse for the courts to avoid doing their job. Its a terrible principle and must be put out to pasture.

  • Brett Bellmore||

    It isn't just an excuse in the case of citizens suing one another. You need some way to restrict lawsuits to only cases where a person can show they were harmed in a way they're entitled not to be. Because "the process is the punishment "; You don't want the tort system to become a weapon well heeled people can use to bankrupt those with fewer resources.

    But in the case of government, the requirement for "particularized" injury insulates wrongful actions that effect everyone from legal review. An unconstitutional action by government deprives everyone equally of lawful government. So, no particularized injuries, and no one has standing. And yet a controversy exists, and that, not "standing" is what Article III calls for.

    If the Senate originates a revenue bill, there's a controversy to be settled. If a law is declared 'enacted' though the two chambers didn't vote on the same language, or a quorum was lacking when the 'vote' was held, there's a controversy to be settled. Controversies and cases where no one is admitted to have 'standing' are quite common, and the courts' refusal to take these cases allows the government to violate the Constitution, sometimes quite flagrantly.

  • bernard11||

    I have some sympathy with Brett's view here.

    After all, these kinds of cases are usually brought by a group or organization with a general interest of some sort in overturning something. The actual individual plaintiffs, as in this case, are often little more than figureheads. Even if they can claim some damage they will seldom be willing to assume the burden of carrying a case to the Supreme Court, which seems to be the objective.

  • David Welker||

    Where, exactly, does the Constitution say that it incorporates the common law? Last time I checked, they called it a revolution. Is it obvious that the law of the previous regime stays after a revolution??? And not only that, is incorporated into the highest law of the new regime without an explicit word being said???

    You are begging the question.

    People who astutely observe that the Constitution in action and the Constitution in writing aren't entirely the same thing have a point. That may be a good thing, as I assume you believe. But it is still a thing. Saying that the common law is somehow incorporated into the Constitution even though the Constitution says no such thing is not an act of deductive logic.

  • Voize of Reazon||

    Amendment 7
    In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

    In contrast, the word "revolution" is not found in any part of the Constitution.

  • David Welker||

    Last time I checked, the Bill of Rights came AFTER the Constitution was ratified and exists as a limit on government power, not a source of it. The Seventh Amendment says nothing about incorporating English common law, and one supposes that Congress, which controls the jurisdiction of the courts, might, at its option, authorize the creation of federal common law for diversity and/or non-diversity cases.

    It is a LONG way to go from the Seventh Amendment to an assertion that the Constitution incorporates English common law.

  • Voize of Reazon||

    David, when the colonies gained their independence they did not start with a clean slate and abolish all preexisting law. They started with the status quo and changed the parts that needed changing. New York's constitution of 1777 explicitly adopted colonial law, as did Massachussetts in 1780:

    Art. VI. All the laws which have heretofore been adopted, used, and approved in the province, colony, or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature, such parts only excepted as are repugnant to the rights and liberties contained in this constitution.

    And naturally when the ex-colonies formed a union and eventually delegated some of their sovereign powers to the new federal government it also inherited the centuries of case law precedent that the states all shared.
    And that is why 11 years later the 7th amendment takes the common law for granted, and describes how to apply it rather than whether to.

  • NToJ||

    "Last time I checked, the Bill of Rights came AFTER the Constitution was ratified and exists as a limit on government power..."

    You need to check again. The Constitution was an express grant of government power, and actually expanded the federal government's power from the prior regime.

  • Sarcastr0||

    Yeah, Scalia can suck it.

    Man, which doctrines you should abandon as non textual and which are cool moves fast these days!

  • SimonP||

    Good god. Look, if you're such an amateur that you don't grasp the constitutional basis for "standing," then maybe you should shut your mouth and sit the fuck down. What a waste of space you are.

    "Standing" derives from the fact that federal judicial power extends only to "cases" and "controversies" described under Article III. It's a constituent concept used to outline precisely what a "case" or "controversy" for constitutional purposes is. So, throw out "standing," you throw out a core constitutional limitation of judicial authority.

    That's not to say that standing doctrine hasn't been pushed and pulled to achieve juridical mischief. Judges have been far too eager to employ the concept to achieve substantive ends without dealing with substantive merits. But to criticize the concept as not constitutionally sound is just to blare your ignorance.

  • ||

    No, we grasp it, we just reject it.

    Standing means that a case or a controversy is not deal with, because reasons. That's really the basis for it.

    If a person sues the government for violation of the Constitution, that is both a CASE and a CONTROVERSY. So there is no justification for rejected the case, because reasons.

  • Brian Thomas||

    Can I sue the president for violating the emoluments clause? I'm not personally harmed when foreign governments pay thousands of dollars to stay in the president's privately owned hotels, but I think the president is violating the Constitution by not getting approval from Congress to receive those payments from foreign governments. So I, and everyone else who thinks the same as me, must have the right to sue the government right?

  • NToJ||

    "If a person sues the government for violation of the Constitution..."

    So if I sue the government because it's failed to make good on its promise to insure domestic tranquility because I don't like Donald Trump, let's take it up.

  • VinniUSMC||

    Pretty argumentative for someone who's entire argument is "but I say so".

    Maybe SimonP should take a good look in the mirror to see who the waste of space is here. Oh, and shut your mouth and sit the fuck down. Or you could continue to blare your ignorance.

  • Brian Thomas||

    His argument isn't "but I say so," he's saying that "standing" as a term comes from the "case or controversy" clause of Article III. It's not an "argument," it's stating the history and origin of the term.

    You guys arguing that "standing" as a concept is BS aren't saying what "case or controversy" should mean as an alternative. Can anyone sue the government if they have a problem with a law? Is that what you want, for every citizen to have the right to sue the government if they personally believe the government has done something wrong? Because I'd love to fire off some federal complaints against the government right now.

  • ||

    I thought the exact same thing.

    Nothing about standing, just about cases arising under the Constitution and the Laws of the US, among other things.

    And hey, this is a case about Constitution and the Laws of the US. Hence, it's valid.

    But seriously, Adler, like many lawyers, wastes many words defending a principle that is wrong and has no basis in logic. Standing, like many other judicial made principles, is a way for courts to get out of doing their jobs.

    Its time to put standing in the wood chipper and focus on the right thing- protecting the Constitution and peoples rights.

  • TheAmazingEmu||

    "Case and controversy" is.

  • Lee Moore||

    Assuming, for the sake of argument, that if the plaintiffs had standing, the legal consequences found by Judge O'Connor would follow, there would be no ACA. All sorts of people are injured by the ACA - for example insurance companies are forbidden from selling the policies they would like to sell, at the prices they would like to sell them, they are forbidden from discriminating against customers who already have the conditions they are "insuring" against; correspondingly their customers are forbidden from buying the sort of policies they would like to buy; and States find their own insurance regulations overridden by the federal rules.

    If all you need for standing is an identifiable injury, it's hard to see who doesn't have it.

    Obviously it must be a subtler concept than is advertised.

  • Sebastian Cremmington||

    Except I have been injured for years by the market distortions created by the liberal New Deal Democrat/UAW crafted health insurance system you support. So now I have standing. Boom! I just blew your mind.

  • Jonathan Adler||

    Plaintiffs must show standing for each part of their claim. They can't play mix and match. (see, e.g. Davis v. FEC, "a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought."). So the plaintiffs must show that they have standing with regard to the individual mandate. The fact that other parts of the law, which plaintiffs do not claim are unconstitutional, may affect them is irrelevant.

  • Sebastian Cremmington||

    I guess in my hypo I would have an injury but the group market regulations are more unAmerican, like Pullman towns, than unconstitutional. The reason so many health insurance issues end up being unAmerican is because the best health insurance pool is an entire country and America is much more individualistic than European countries which went with the logical route of a bigger pool is a better pool.

  • Andrew Hyman||

    If a single individual plaintiff claims that s/he is directly injured by two different parts of the ACA, the second injury being economic whereas the first injury is not economic, and the second part being unconstitutional because the first part is unconstitutional, this seems apt for a single claim since it's all inextricably interwtined. Especially if the first injury would not occur but for the second injury.

  • Sebastian Cremmington||

    Wow, a lot of injuries! Thankfully the ACA covers the injuries even if they get health insurance after they were injured. ;)

  • Andrew Hyman||

    :-)

  • Sebastian Cremmington||

    Oh, and the deductible for the policy is $26k. Wait what???

  • Last of the Shitlords||

    I favor a program where we harvest the organs of all the people who voted Obama in to cover the premiums and deductibles for the rest of us who are getting screwed because of it.

  • Rev. Arthur L. Kirkland||

    Disaffected right-wingers, half-educated bigots, and stale-thinking rubes will always be forced to obey their betters. This has been true throughout our lifetimes, and it is not going to change. Quit whining about it.

  • David Welker||

    Rev:

    Do you choose to troll because you have given up all hope of being persuasive?

  • Rev. Arthur L. Kirkland||

    Hope of being persuasive? My preferences have prevailed in America throughout my lifetime and are positioned to continue to shape American progress for so far as the reasonable eye can discern The culture war is over. My side won. The liberal-libertarian mainstream has been persuasive enough to relegate those who disagree to society's sidelines, from which the malcontents mutter bitterly about all of this damned progress.

    Merry Christmas, clingers.

  • Andrew Hyman||

    A wise man said: "I believe there is no one Principle, which predominates in human Nature so much in every stage of Life, from the Cradle to the Grave, in Males and females, old and young, black and white, rich and poor, high and low, as this Passion for Superiority .... Every human Being compares itself in its own Imagination, with every other round about it, and will find some Superiority over every other real or imaginary, or it will die of Grief and Vexation. I have seen it among Boys and Girls at school, among Lads at Colledge, among Practicers at the Bar, among the Clergy in their Associations, among Clubbs of Friends, among the People in Town Meetings, among the Members of an House of Reps. [Representatives], among the Grave Councillors, on the more solemn Bench of justice, and in that awfully August Body the Congress, and on many of its Committees -- and among Ladies every Where -- But I never saw it operate with such Keenness, Ferocity and Fury, as among military Officers. They will go terrible Lengths, in their Emulations, their Envy and Revenge, in Consequence of it." This wise man obviously never encountered comment threads on the internet!

  • Last of the Shitlords||

    Arty, we've been through this before, but you're too stupid to listen. I AM your better. Best you learn to obey.

    You cans tart by referring to me as 'master'.

  • TwelveInchPianist||

    "The fact that other parts of the law, which plaintiffs do not claim are unconstitutional, may affect them is irrelevant."

    I agree that O'Connor's standing argument for the individuals doesn't make sense, but it seems like standing for severability ought to be separate from standing for a particular part of the law. Hypothetically, If somebody is harmed by the mandate but not, say, guaranteed issue, they wouldn't have standing to claim that guaranteed issue is or isn't severable. But if a plaintiff is harmed by guaranteed issue, they ought to be able to argue that Congress never intended to subject them to guaranteed issue in the absence of the mandate.

  • NToJ||

    "...ought to be able to argue that Congress never intended to subject them to guaranteed issue in the absence of the mandate."

    If Congress didn't intent to subject them to the guaranteed issue in the absence of the mandate, why did Congress repeal the mandate but not the guaranteed issue? And what does any of that have to do with the constitutionality argument?

  • NToJ||

    "...insurance companies are forbidden from selling the policies they would like to sell..."

    But those provisions aren't unconstitutional under the commerce clause because they regulate economic activities.

  • Jim Logajan||

    The inverse of a tax penalty is a tax credit. Stick or carrot, the carrot (in the form of tax credits) still exists in the ACA. Focus on a single clause to your heart's content - it is narrow read on a long document. Even when willing to pay the tax penalty, long-term non-ACA health insurance can not be found on the market.

    Anyone making $1 over the subsidy cliff should have standing because, so far as I can tell, an entire class of insurance had been (and still appears to be) effectively outlawed. There may be no penalty anymore, but the feds have affected the entire market. Restrictions on short-term insurance are being opened a little, thanks to the Trump administration, but that's still along way from what I used to be able to buy on the market pre-ACA.

    Put another way - I believe I can show standing because I can no-where purchase the coverage I had pre-ACA at any price, and the direct cause of that is the penalties and requirements the ACA applied not to me but to the providers (e.g. Blue Cross of Idaho recently being sued by the Trump Admin for non-ACA plans.) I have been fiscally harmed and continue to be fiscally harmed irrespective of the individual mandate.

  • Sebastian Cremmington||

    Republicans chose to blow the individual mandate repeal "savings" on tax cuts when those "savings" should have been used to extend the subsidies...take it up with Paul Ryan. Btw, extending the subsidies would actually pay for itself unlike most absurd CBO scoring because healthier people in the Exchange pools would lower premiums for the pool which reduces overall subsidies.

  • JesseAz||

    "extending the subsidies would actually pay for itself" FDR approved math. Coming to a school near you.

  • Sebastian Cremmington||

    You have no clue how risk pools operate.

  • Last of the Shitlords||

    I do, and you're still,dead wrong. The whole thing was an ill conceived disaster. Government can't run healthcare effectively, and needs to get out of it.

  • Brett Bellmore||

    Here's a clue for you: They DON'T operate if you're not allowed to price the policies based on actuarial risk.

  • Sebastian Cremmington||

    Congratulations—this comment makes you an official Hubert Humphrey Democrat!! You will be receiving your hard hat and lunch pail in the mail soon. I hope you like drinking Old Style because that is the only beer you are permitted to drink.

  • bernard11||

    Actually, they can operate without that, given mandatory participation.

    Most employer based plans charge the same amount for every employee, and make no distinction between the 23-year old who runs marathons as a hobby and the 55-year old with high cholesterol and unappealing blood glucose levels.

    "Actuarial risk" can be calculated across populations, as well as for individuals.

  • Sebastian Cremmington||

    The group market is the most business friendly market the government has ever created. Think about it—health insurance for people healthy enough (and responsible enough) to have a solid job.

    And the other important context is to look at Medicaid enrollment and you see in the 2000s as Walmart expands it works with the Bush administration to expand Medicaid. The one year Medicaid doesn't really grow during Bush's presidency is when Medicare Part D was enacted and some seniors were transferred to that drug plan. Also prior to the ACA Medicaid grew to cover 50% of maternity.

    My point is this notion that Obamacare was some "big fucking deal" or that it was "transformative" is absurd. Obamacare was necessary just like Medicare Part D was necessary and just like much of Medicare D was cost shifting so is Obamacare. In fact the lesson of Obamacare/Medicare D is that if a program is necessary don't bother paying for it because the taxes become political footballs that probably won't survive anyway. (Although technically the CBO scored the individual mandate as cost)

  • Lee Moore||

    bernard : "Actuarial risk" can be calculated across populations, as well as for individuals.

    Obviously. A "risk pool" is a concept which applies to the insurer not to the insured, nor even to the purchaser of insurance, if that is not the insured himself. A "risk pool" simply (or rather complexly) allows the insurer to survive with less capital than might be required if he held a reserve for all risks written cumulatively. Not every roof will collapse on the same night.

    But as far as the insured is concerned the "risk pool" is irrelevant. What matters is whether he's getting value for money. And that depends on comparing the value of his own actuarial risk, with the cost charged to him.

    And if the latter exceeds the former in any case, you will, as you say, require compulsion.

    But if compulsion worked well, we'd all be speaking Russian by now. The history of the last few hundred years indicates that lack of compusion works a lot better.

  • bernard11||

    Lee,

    I take your point, but I think you are oversimplifying.

    First, of course the premium the insured pays exceeds actuarial risk, from the insurer's POV. Why else would they sell a policy? And the insured pays that precisely to avoid risk - defined not as the probability of loss, but as variability, or variability beyond that one is comfortable absorbing. I'm quite confident that what I pay for homeowner's insurance far exceeds the EV of losses.

    The problem, among others, with individual health insurance is the basic one of asymmetric information. The insurer suspects that the prospective buyer knows more about his health risks than the insurer, and thus will price the policy quite high to cover itself. That in turn may cause the buyer to refuse the policy. The consequence may be the disappearance of the individual market altogether, or the existence of one with exorbitant prices and numerous restrictions and limits - imposed by insurers, not the government. I think we've seen that show.

    I suspect you are familiar with all that, but it's worth noting whenever people jump in with talk about actuarial risk, as though it's part of an easy solution to health insurance problems.

    (Continued)

  • bernard11||

    A second problem is determining the period over which the actuarial risk is to be calculated. Is it one year, five years, a lifetime? Obviously, you want the period to match the term of the policy, but there is a lot of serial dependence in health care costs, so the risk to the insured extends over a long time line - his entire life, actually - and the buyer would like a system that covers that.

    That means guaranteed renewability at a formula-based rate. It also means having some backstop if the insurer goes broke ten years into the policy.

    These are complex issues, IMO, and simple "just set the market free" approaches are unlikely to work well.

  • Lee Moore||

    Sorry bernard, the comment system has decided to block my reply half way through.

    The shorter version is that no your premiums don't exceed the EV of your claims by more than a modest profit margin, measured in dollars and cents (which is what the insurance company cares about) but the subjective value to you of your cover may well greatly exceed the subjective value to you of the premium you pay.

    This applies to virtually any modern consumer good or service. You pay way less than the subjective value to you of what you get. Because suppliers compete for your business.(The consumer's surplus.)

    Which is the general answer to your other point too. The less market competition there is, the lower the consumer's surplus.

    No one doubts that health insurance presents many complex problems. But so does, for example, food supply. Markets are good at solving difficult problems with many moving parts, precisely because they require no one to generate a grand plan.

  • Lee Moore||

    A second problem is determining the period over which the actuarial risk is to be calculated. Is it one year, five years, a lifetime? Obviously, you want the period to match the term of the policy, but there is a lot of serial dependence in health care costs, so the risk to the insured extends over a long time line - his entire life, actually - and the buyer would like a system that covers that.

    It's unlikely that the insured, aged 22, really does want an entire lifetime policy, because there are way too many uncertainties about life other than as regards health that he won't want to lock in.. Who wants a policy, bought in 1975, that covers medical treatment for life at 1975 levels of technology ?

    But on shorter timescales what you're really describing is an option. At age 22 you may want to buy a super cheap policy that will cover you for five years, but you may also want to buy an option on a policy starting in 5 years time that prices in the possibility that you acquire some unpleasant condition during the five years.

  • Lee Moore||

    That's something that markets could work out quite well over time – in a free market. And you wouldn't want your premium tied to a particular insurer with something like a "guaranteed renewal." You'd just want something that paid out a cash estimate of the difference between a no previous conditions premium , and a previous conditions A to F premium, if you developed conditions A to F during the option period. So you could buy your new policy from anyone.

    But I suspect the laws are not propitious, ie options over future policies at set or formulaic premiums, or cash settled equivalents. are probably not insurance contracts legally. But if the laws were such that options on policies were enforceable, the market could provide them.

  • Lee Moore||

    bernard : First, of course the premium the insured pays exceeds actuarial risk, from the insurer's POV. Why else would they sell a policy? And the insured pays that precisely to avoid risk - defined not as the probability of loss, but as variability, or variability beyond that one is comfortable absorbing. I'm quite confident that what I pay for homeowner's insurance far exceeds the EV of losses.

    1. Typically, most insurance premiums are lower than the EV of the claims, because the premium is paid up front and claims are paid out later. The insurer invests the premiums and the investment return pays his gross loss (the excess of claims and admin costs over premiums) plus his profit margin. (Though in these unusual days of more or less zero interest rates, insurers may be making gross profits before investment income.)
    2. But in broad NPV terms, you're right. Insurers aim to make a profit so the NPV of your premium should exceed the NPV of your expected claims.
    3. But not by much. Insurance companies don't make exceptional profits – maybe 5% or so.

  • Lee Moore||

    4. So your premiums are not, in arithmetical terms, way higher than the EV of your claims. If they were, another insurance company would be offering you lower premiums and still making a profit off your business. In a market, suppliers compete for profitable business.
    5. But as far as you are concerned, you want the subjective value of your coverage to exceed the

  • Lee Moore||

  • Lee Moore||

    bernard : The problem, among others, with individual health insurance is the basic one of asymmetric information. The insurer suspects that the prospective buyer knows more about his health risks than the insurer, and thus will price the policy quite high to cover itself.

    Agreed, this is a particular problem with health insurance, as against many other markets. The insurer will charge a premium based on the expected claims, which will include a skew element – that the insured is more likely to conceal information known to him that would make the insurer rate the risk higher, than information pointing in the other direction. Hence the insurer will price low risks too high, and high risks too low, compared to what he would do if he had the same information as each insured person.

  • Lee Moore||

    But

    (a) this is only a problem if it forces the premium so high that it eats up the whole of the low risk insured's consumer surplus, ie if it makes low risk customers subjectively value the cover at less the premium
    (b) this is the mouse sized version of a problem we've already met – the Obamacare elephant. Which forces insurers to ignore information about risks that they do actually know ! Whatever problems the market has on this asymmetric information front, they are made far worse by the "solution" of requiring insurers to ignore known risks. The consumer surplus is far more likely to be eaten up by Obamacare's price controls on risks that the insurer could price, than by mere asymmetric information in a free market
    (c) and last but not least, a free market contains economic incentives to solve the problems of asymmetric information, eg by creating tests that reveal medical risk factors more accurately, and from claims histories, teach insurers how to price those risks

  • bernard11||

    Lee,

    Thanks for the thoughtful response.

    Some points:

    Loss ratios in health insurance vary a good bit. According to this they were 82% in 2017, down a good bit from prior years. That ACA set them at a minimum of 80-85% suggests to me that they are not routinely much higher than that. More information is here.

    The analogy with food, so often heard in these discussions, is a poor one, for a couple of reasons:

    1. Food is a predictable, stable, expense. No one fasts for years and then is suddenly faced with the need to spend thousands, or tens of thousands, of dollars on food in a short period in order to survive. Food costs don't suddenly increase by multiples. Similarly, there are not huge disparities in how much individuals have to eat to stay alive.
    2. Much of what we spend on food is a luxury item. Most of us could cut our food costs a lot without hurting our health or adopting a subsistence diet. For many, like myself, that might actually help.

    (continued)

  • bernard11||

    (continuation)

    Your suggestion of an option with cash settlement is a good way to think about the longer term. But from a financial POV it makes no difference. You can't price an option without knowing the value of the underlying asset, so the insurer still has to take into account expected costs after the original policy expires. Then you still need a further option. After all, the new condition, or another one, may still be there, so if you don't do that you are just postponing the problem. The cash settlement won't help if the option writer – the insurer – is broke.

    The difficulty here is the pre-existing condition issue. No matter what we want to buy at age 22, the fact is that without some guarantee of insurance we are likely to face a problem as we get older. Even a normally healthy 50-year old is going to face a very high premium if it is calculated based on EV of health care costs. Better to have paid extra when younger.

    I am not as optimistic as you are about the market's ability to deal with asymmetric information. It certainly didn't do well in the pre-ACA days. And what happens to those unlucky enough to have some sort of genetic issue, or to develop a long-term problem while still young? Unless we throw them in the dumpster we will have to offer some sort of government coverage or subsidy (which right-wingers will bitch about forever) or require insurers to cover them at reasonable rates, possibly with a government reinsurance program.

  • Lee Moore||

    You can't price an option without knowing the value of the underlying asset, so the insurer still has to take into account expected costs after the original policy expires.

    But – in a market – you do know the price of the underlying. Say the 22 year old's policy costs $750 a year for 5 years (he has no pre-existing conditions.) He wants an option on a policy starting at age 27 covering him for the extra cost of a policy over and above the basic, for a customer with pre-existing conditions A-F. But (in a market) there's already a price – today - for

    (a) a policy for a 27 year old with no pre-existing conditions (say $1250 a year), and
    (b) a policy for a 27 year old with pre-existing conditions A-F (say $2250 a year)
    So the price of the underlying (ie the extra cost of the policy over and above the standard no pre existing conditions policy) is, currently, $1,000 a year.

  • Lee Moore||

    The 22 year old could buy an option to cover that whole risk. Or 50% of it. Or 80% of it.
    Or none of it if he thinks his pay rises will cover the problem. Whatever he wants. Likewise he could buy an option on a policy starting at older ages. The financial markets do this all the time with interest rates – which have a term structure and reinvestment risks - just the sorts of worries that you have with reinsuring yourself for health costs.

  • Lee Moore||

    The analogy with food

    is perfectly fine for the purpose it is intended which is illustrating that the market routinlely solves extremely complicated problems involving all sorts of different players, that could not conceivably be planned, or even imagined, by a bureaucracy.

    No one pretends that the particular complexities of delivering and paying for health care are the same as delivering and paying for food. Each market has its own particular wrinkles, Health care has, as you say, a large and often unexpected, variation in the amount any consumer will want to buy. Hence the role paid by insurance, which deals with this same sort of problem in the areas of fires, floods, car accidents and so on.

    The point is that the market is good at solving difficult problems of all sorts, so long as there's a reasonably reliable legal system around to make people confident that the deals they strike will be respected. So long as it is left to get on with it. And it is good at doing so in ways that neither you or I nor anybody else could possibly imagine and describe in advance.

  • nonzenze||

    It's not unconstitutional for the government to outlaw a product, even if you would want to buy it or could buy it in the past. It's fiscal harm, maybe, but not a valid constitutional claim.

    The point of FEC v Davis is that you have to claim that something is both is unconstitutional and has caused you a particularized harm. Outlawing some forms of insurance is the latter but not the former.

  • ||

    "I's not unconstitutional for the government to outlaw a product"

    Actually it absolutely is, under proper constitutional doctrine. But under the "BECAUSE REASONS" doctrine currently in vogue, it is.

  • NToJ||

    I'm beginning to think you aren't applying the "BECAUSE OF REASONS" criticism consistently.

  • Armchair Lawyer||

    The real issue here, is what Adler's argument suggests.

    Imagine, for example, Trump passed a law declaring that Adler publishing or posting on the internet would be deemed illegal. As a subsection of the law however, the government would not pursue any fiscal or jail penalty for Adler breaking this law.

    Does Adler have a lawsuit against the government for passing such a law, that makes it illegal for him to publish or post on the internet? Does he have standing, has he shown any "damages?"

  • Jonathan Adler||

    Nope. I would not have standing.

  • Armchair Lawyer||

    Indeed, under your argument you would not. However, the law would still be on the books. And, without standing, it would be very difficult to challenge, if not impossible.

    Now, let us suppose you were to take a position as a US judge. And as according to the oath of office, you had a responsibility to faithfully perform all the duties incumbent upon you, as according to the laws of the united states.

    How do you ethically mesh your duty to follow the laws with, presumably, your active breaking of those same laws, which you don't have standing to challenge?

  • Krayt||

    Could they waste time and money prosecuting him, even though there is no penalty, other than being a scofflaw, and possible ineligibility for certain things?

  • Armchair Lawyer||

    The ineligibility is a real issue.

    But the point that was being made is that, for many people, willful violation of the law, even a law they disagree with, creates a moral and ethical distress for people. It's not the calculation of the penalty, but the violation of the law itself that's the issue.

    The above example was designed to show the conflict between a judge who has pledged to uphold the law, with an unjust law targeting the judge, but one which couldn't actually be challenged due to the inability to show standing, according to a narrow definition of standing.

    Likewise, the case with the mandate, where people feel an ethical and moral burden to obtain health insurance, because the law mandates it...even if there's no fiscal penalty. And the fact there's no way to overturn such a law, because standing is near impossible under Adler's definition.

  • Malvolio||

    for many people, willful violation of the law, even a law they disagree with, creates a moral and ethical distress for people.

    For most people, I would hope.

    But the injury has to be "concrete". "Moral and ethical distress", however severe or well-founded, is pretty much the opposite of concrete.

  • Brett Bellmore||

    Now, THAT is a key issue. "The process is the punishment."; Even where the formal penalty is zip, the proceeding to prove that you owe zero could bankrupt you.

  • NToJ||

    If the government prosecuted you, you'd have standing.

  • bernard11||

    How could anyone prosecute him? What crime would he have committed?

    If you file your income taxes late you have to pay a penalty, and if you don't the IRS will put a lien on your property to get you to pay. But there is no prosecution.

    Those defending O'Connor's decision need to start a yoga school, because they are capable of amazing feats of stretching and contortion.

  • Krayt||

    The law defines a crime. That can be prosecuted. I guess I just disagree that no penalty is not synonymous with no crime.

  • TwelveInchPianist||

    "How do you ethically mesh your duty to follow the laws with, presumably, your active breaking of those same laws, which you don't have standing to challenge?"

    You say, "Whelp, that law is unconstitutional, so I have no duty to obey it."

  • Sebastian Cremmington||

    Many of the conservatives I have known that have had to work in NYC, DC, and SF have taken their guns with them and simply ignored the gun registration laws of those cities because they believe the laws are unconstitutional. None of them carry concealed weapons in those cities even when they carry concealed weapons in their home states.

  • Vernon Depner||

    If Adler were actually prosecuted and sentenced to a $0 fine and 0 days in prison, I suppose he could then suffer damages. As a convicted felon, he could be denied the right to own a firearm; put on a no-fly list; denied a security clearance; etc.

  • Jim Logajan||

    Also possibly denied the right to vote in some states for a period of time after the 0 days of incarceration?

  • bernard11||

    Why would this be a felony?

  • Malvolio||

    It's not considered a felony unless it punishable by a year of incarceration.

    However, even a misdemeanor conviction can show up on background checks, which can interfere with getting a job. That may be enough to constitute an "concrete, particularized injury".

  • bernard11||

    What makes it a misdemeanor?

    And even if it is, so what? some states apparently regard traffic tickets as misdemeanors. Will they keep you from getting a job, other than one that involves driving?

  • Brian Thomas||

    You guys keep changing the hypothetical. The hypothetical was "government passes law that has no consequences. Can you challenge it?" and you guys keep saying "Yes, because of all these consequences!"

  • DASGUY||

    What if a court found he violated the law, ordered him to stop, he doesn't,the court holds him in contempt and imposes a fine and some incarceration?

  • Krayt||

    Whatever happened to "We have never found a law constitutional just because the government promised to use it wisely."?

  • nonzenze||

    (1) If the law allowed injunctive relief, then Adler would have standing under the chilling effects doctrine.

    (2) If the law did not allow for injunctive relief, then your scenario is moot.

    Any other bright ideas?

  • bernard11||

    He pays the fine.

  • newshutz||

    or he gets the hose again

  • Alpheus W Drinkwater||

    I assume you mean Congress passed a law. And there might be a "bill of attainder" issue there.

  • NToJ||

    There are several problems here. The President doesn't pass laws, for starters. But more importantly, the law would be subject to a facial challenge which has different standing requirements than an as-applied challenge, because of the chilling effect potential effect for reasons you explain downstream.

  • Sebastian Cremmington||

    I live in fear of former President Obama wagging his finger at me! Please save me Judge O'Connor!! Omg, I think Speaker Pelosi is in my closet. Shhhhhhhhh

  • Life of Brian||

    Right, right -- this pretty much reflects the reaction of myself and many others to Griswold's "emanations and penumbras." The prolix, sanctimonious hand-wringing about how the law must be consistent and make logical sense only seems to surface when it's the writer's ox in danger of being gored, and standing seems like a particularly poor hill to choose to die on given how widely recognized it is as a largely outcome-oriented doctrine.

  • ||

    By that standard, homosexuals shouldn't have standing to challenge sodomy band, as laws against sodomy do not harm them. They benefit them by preventing the spread of disease.

  • Rev. Arthur L. Kirkland||

    Thank you, Conspirators, for the gift of bringing unvarnished conservative views to a broader audience.

  • Ben of Houston||

    Kirk, don't you realize a "reducto ad absurdum" when you see it? It's a ridiculous example used to show how absurd this interpretation of standing is.

    It's common, actually. The CO2 tailoring rule was opposed by a diverse group of industry personnel, but they were denied standing. The reason? The tailoring rule "benefited" them despite being blatantly illegal, and without it, no CO2 regulation would be possible. Therefore, no one had standing to oppose it unless they wanted to make it stricter.

    It's a sit-down-shut-up move that's shockingly effective at ending debate.

  • santamonica811||

    Ben,
    Generally, your guess might be correct. But you are not familiar with the troll ActualRightWing. He was not making a reducto [sic] ad absurdum argument . . . ActualRight is a closeted gay man (we all suspect), and as such, he makes countless posts wailing about the dangers of male-gay-sex. (He seems okay with female gay sex, however.)

    Once you've been on the site for a month or two, you'll see many examples of this. If the Reason website did not suck so much and if it had a search function that works as well as all the prior VC sites, you could just search for posts with "gay butt sex" and you'd see what I mean.

  • ||

    I'm not the one who went whining to the Sipreme Court to get this form of "marital love" declared a constitutional right.

  • Krayt||

    Why would you ever authorize government the power to regulate adult sexuality to begin with?

    "Poor is the man whose pleasures depend on the permission of another." -- Madonna

  • EscherEnigma||

    'cause America got the puritans.

  • VinniUSMC||

    ActualRight is Artie in drag.

  • newshutz||

    searching Reason.com for "gay butt sex" would return too many hits

  • Rev. Arthur L. Kirkland||

    Thank you, Conspirators, for the gift of bringing unvarnished conservative views to a broader audience.

  • Last of the Shitlords||

    Are you some kind of low functioning autistic?

  • Rev. Arthur L. Kirkland||

    It's the holiday season, so I will provide a warning: Be nicer, or I shall instruct my children not to hire your family to clear the walkways, detail the vehicles, and mow the lawns -- and then how would you get the handful of street pills needed to get through another day in America's desolate, can't-keep-up, red state backwaters?

  • Last of the Shitlords||

    You have no family, and are. A minimum wage worker with no education. I however, own businesses much like your own conservative bosses, that piss mercy on trash like you.
    And provide menial employment you don't deserve.

    Of course, you do make a few extra bucks Manning a glory hole in the transit authority bus station men's room. So you have that going for you.

  • Rev. Arthur L. Kirkland||

    These are your peeps, Conspirators. Still wondering why you operate at the academy's fringe, or hoping that strong liberal-libertarians schools will accept your invitation to emulate fourth-tier clinger factories by hiring more movement conservatives for their faculties?

  • Malvolio||

    Is this sarcasm? Being prevented from doing something you want to do, even if other people don't want you to do it, is an injury.

    And of course, a sodomy bad would typically be enforced with fines and jail-time, which are injurious.

  • ||

    But it's for their own good. There's no harm

  • NToJ||

    By this reasoning the mandate causes no harm, since it is less money people will spend on unprotected sex.

  • Harry M Johnston||

    As a hypothetical (and based on the "school prayer" example) what would/should happen if one of the plaintiffs could have demonstrated that their religion required them to follow the law scrupulously?

  • NToJ||

    The injury can't be voluntary.

  • Eddy||

    Supposedly, a Good Citizen will follow the law, not because of fear of punishment, but because it's The Law.

    The statute does, indeed, require the purchase of insurance. If you don't you're breaking the law.

    The omission of a penalty would only matter to Holmes' "bad man" who simply calculates what he can get away with, regardless of legality.

    But to the loyal, red-blooded citizen, if it's The Law, the The Law Must Be Obeyed.

  • Eddy||

    And to relieve any conscientious scruples, where will the Good Citizen resort, if not to the courts?

    The Federalists in 1798, and the Democrats in 1857, both agreed - we must look to the courts to learn what the Constitution means.

  • Sebastian Cremmington||

    Do you know who Edith Windsor is? She is a bona fide American hero! She is hero because she was like—I gotta pay how much in estate taxes?? Oh hell no that is some straight up bullshit! I don't care what that dumbass Biden says about it being my "patriotic duty" to pay taxes. I am going to hire a lawyer to get me out of this ...a few weeks later she was like—so if I say I was "married" to that old broad I was getting my freak freak with I save how much??? Well then I was married as hell mortherfucker CHA-CHING!

    So in order to determine if this is constitutional or not first ask yourself are you a white women that has been slighted by a powerful man? Are you a white person that is LGBT? Are you a minority? If the answer to all of these is "no" then you should just STFU!

  • santamonica811||

    Sebastian,
    I understood each individual word in your post. But the jumble of those words that you arranged and posted was pretty incomprehensible to me. I have no doubt that, in your own mind, your point was clear and easily understandable. But maybe not so much for the rest of us.

  • Sebastian Cremmington||

    It wasn't directed SJWs without a sense of humor, sorry, next time I will post a "trigger warning". You can keep paying your taxes unless you find a "worthy" loophole to avoid paying them. ;)

  • santamonica811||

    You misunderstand. I am not remarking that I understood the post but found it unfunny. I was saying (clearly, I thought, but perhaps not) that you stuck your words together in a way that made the meaning too opaque and too difficult to follow.

  • Sebastian Cremmington||

    Edith Windsor didn't way to pay taxes (probably because she didn't want to due her "patriotic duty" and help pay for Obamacare) so she found a loophole.

  • Sebastian Cremmington||

    I think I made it worse. "Due" should be "do". Autocorrect—making you're life butter?

  • Eddy||

    Wait, what does this have to do with Edith Wharton?

  • santamonica811||

    Seb,
    This site sucks so much worse than the previous locations for the VC. The already-mentioned search function. (there is not even a way for me to easily find all my own prior posts). But the lack of an edit button is, frankly, inexplicable. It's like someone was hired to design the Reason platform, with the instruction, "Okay, make it as user-unfriendly as humanly possible."

    Mission accomplished.

  • Sebastian Cremmington||

    I used to comment on the VC before their move to WaPo and that period just seemed like the "golden age" of blogging and commenting on blogs...something just seems different now with so many trolls and most likely Russian troll farms. I agree this comment section belongs in an internet museum. Maybe the people that run it also like "old school" things like vinyl records and pocket watches and smoking cigarettes instead of vaping??

  • Brett Bellmore||

    Hey, at least they allow links. I've run up against comment systems that not only didn't allow links, they deleted anything that looked like it might be an obscured link.

    And there's none of that stupid "gamification" where they let people literally buy the ability to delete others' comments, but also sell the ability to protect yourself from it. Can you imagine Hihn with the power to mess with other people's comments?

    So it isn't the worst comment system around, by far. Not remotely.

  • ||

    So in Sibelius the court upholds the individual mandate as an exercise of Congress's taxing power, and expssly not on the commerce power. Then Congress repeals the "tax." So who does have standing to bring the case that the individual mandate must fall, and with it the rest of Obamacare? Without commenting on how a severability analysis would play out, is it the case that even though the basis for the Court's earlier holding has been eliminated the case still stands and that no one has standing to raise the issue again because no one is subject to the penalty that was the entire basis for the earlier holding? Shouldn't the original litigants at least have standing to ask the Court to reconsider?

  • Sebastian Cremmington||

    We still have one option to get standing—I call it "passing for lesbian". So the problem is that these cases are brought by the only group of Americans that it is legal to discriminate against. So white heterosexual males are held in the lowest esteem in this society and any discrimination against them is celebrated or dismissed out of hand as "no big whoop". Some of these men in this group are extremely fortunate and they will be able to pass as lesbians and escape the de jure discrimination they are subjected to.

    So if a man believes he can pass as a lesbian I urge him to immerse himself in that culture and learn their culture and mannerisms and begin dressing like they do. His spouse or girlfriend will have to do the same thing so they can attend Lilith Fair concerts and go to pottery classes and vacation in Provincetown together. Yes it will be a tough few years but the sacrifice will eventually pay off by gaining entrance to a protected class of Americans.

    Several years down the road zie can bring the lawsuit under zirs new name like Water Lilly or Flowing Creek and the Left will embrace the lawsuit!

  • Brian Thomas||

    Court: individual mandate is a tax.
    Congress: we're getting rid of the tax.
    You: so how can we challenge this tax?

    You just want to get rid of the rest of Obamacare, you don't care about the individual mandate.

  • NToJ||

    "Then Congress repeals the "tax.""

    That means Congress repealed the part of the ACA that made it violate the Constitution. The Commerce Clause argument was that the mandate regulated economic inactivity. Without the tax, it doesn't even attempt to do that. The original litigants' constitutional argument evaporates with the mandate's repeal.

  • JesseAz||

    The idea of accepted standing is flawed as well. In order to deny standing, the judge should identify a potential person who would have standing. Right now we have a system that can be gamed. For example many of those who pursued the government against ACA subsidies were denied standing since they weren't harmed (taxes don't count you know). So the Government giving away billions in tax dollars to a preferred class can never be challenged. It makes no sense to allow this behavior to exist in the judicial system.

    If a judge can identify a class of people with potential standing then I am fine with issuing a decision on not having standing. But when there is no readily identifiable class of plaintiffs to have standing, the judge should accept the initial suit especially when it is the States or some other government entity.

  • Sebastian Cremmington||

    But you do realize that we have these people named "congresspeople" that, from what I am told, have the ability make laws?? In fact some people even refer to these people as "lawmakers". So maybe the AG of Texas could call or text Senator Ted Cruz and be like

    "wut up player? That Xmas party was off the chizain! Btw, could you maybe repeal Obamacare?? My cousin Ray Ray hasn't been able to find an affordable health insurance policy since 2013. Can't wait for the next Jay-Z album to drizop! Out AG Keezy P!!

  • Sebastian Cremmington||

    And then Cruz would reply—

    "You thought the Xmas party was crazy just wait for NYE—this that red cup all on the lawn shit! We gonna break out the Cristal and make it rain! Sorry to hear about Ray Ray but we gotta lotta haters up in here that won't sign on to my repeal legislation. But you know my word is bond! Sizzenator Teazy Ceazy out!"

  • Craig Johnston||

    I'd like to suggest you attach a breathalyzer to your keyboard, assuming they have a breathalyzer for whatever it is that helped these comments make sense in your mind.

  • AlInVA||

    As part of some security clearance/polygraph processes, one can be asked if they have violated any laws.
    I am not knowledgeable, but I imagine that the "Moral Character" aspect of some Bar Admissions may also pose challenges...

  • TheAmazingEmu||

    Both of those, at least in theory, could provide standing when this case does not.

  • Robert Beckman||

    Doesn't this work for a persecution under 18 USC 371 (conspiracy to commit a crime) or another analogous statute?

    So all that's needed is someone trying to sell a non-compliant plan while saying it's compliant, with a persecution for conspiracy to violate the underlying law. This would of course require a prosecutor to tee it up, but that probably wouldn't be that hard to find.

  • Jonathan Adler||

    Failing to obtain health insurance is not a crime under the ACA.

  • Ben of Houston||

    Sorry, but the concept of "standing" has been repeatedly perverted over the years to mean that people cannot challenge unjust laws because they "benefit" from them.It's been used to defend the indefensible by slamming the door shut before anyone's arguments are even heard.

  • Jerry B.||

    Title should probably be "Why I think Judge O'Connor is wrong..." since Dr. Adler Isn't the court that can decide whether Judge O'Connor's ruling is right or wrong.

  • Lee Moore||

    No, no, no, no, no. And no !

    Judge O'Connor may still be wrong even if SCOTUS agrees with him. We are not obliged to accept that the courts have got things right, simply because they're the courts. We are obliged to defer to their erroneous opinions in the conduct of our lives, lest government officers seek to impose the courts' opnions on us. But we are quite entitled to state that the courts are wrong, when in our opinion they are wrong, entirely on our own authority.

  • Alpheus W Drinkwater||

    And sometimes, when enough people state that the courts were wrong, it can have an actual effect on jurisprudence.

  • TwelveInchPianist||

    The individuals can't believe both that they are bound by the mandate and that it's unconstitutional. If it's unconstitutional, they are not bound by it.

  • Brett Bellmore||

    But people are investigated, arrested, tried, and imprisoned, all the time, for violating laws they aren't bound by.

    Because all that stuff happens even if a law is unconstitutional, so long as the legal system doesn't feel like admitting that it's unconstitutional.

  • TwelveInchPianist||

    Well, sure. If someone were prosecuted for violating the individual mandate, or could even show that they might be, then they would have standing. But that's not the case. Here, the judge says they have standing because they fell that they are required to purchase health insurance. But if they believe that the mandate is unconstitutional, then they have no reason to feel bound by it.

  • Brett Bellmore||

    They didn't "feel" they were required to purchase it. They were required to purchase it. The legislation literally commands you to purchase it.

    The penalty (Yes, the law calls it a penalty".) for not complying may have been reduced to zero, but that doesn't change the fact that you're commanded to do it.

  • NToJ||

    Nobody disputes that they were commanded to pay $0. The point is that a person commanded to pay $0 isn't hurt. The lunacy of your position is that even under the original ACA, people who fall under the law's "Exemptions" would have been able to sue. Even if you wanted to interpret the law that pedantically, constitutional avoidance would prevent it. If you think CJ Roberts went off on a limb for his tax savings interpretation, you should assume he'll do the same thing re: whether the law "commands" anybody to purchase it.

  • bc15||

    I am confused by Adler's waiving away of Establishment Clause precedents and claims that stigmatization is insufficient for standing. Isn't even "voluntary" school prayer unconstitutional? Obviously, if reciting a prayer before school is "voluntary", then that's even less of an injury than penalty-free "mandated" prayer. Yet, the plaintiffs had standing in those cases. Stigma of non-participation was sufficient.

    Suppose Congress were to mandate school prayer but enforced the mandate with neither fine nor prison. They also provided some funding to renovate classrooms to ensure an environment conducive to prayer and made a specific "finding" that the funding was linked to the prayer mandate, i.e., that the prayer mandate was necessary for the funding to make sense. (1) Would any individual have standing to challenge the mandate, even though violating the mandate carried no penalty, beyond stigma? (2) If the Court struck down the mandate, then could the mandate be severed from the renovations funding, despite Congress's finding to the contrary, simply because the mandate carried no penalty, i.e., would the Court strike down the mandate but still require that classrooms be renovated to support prayer that would no longer occur? Why would a penalty-free prayer mandate be different from a penalty-free insurance mandate? In the first case, Congress exceeds its powers limited by the First Amendment. In the second, Congress exceeds its powers limited by enumeration.

  • Sebastian Cremmington||

    Maybe conservatives that opt out of Obamacare could wear a badge with Obama's face with a line through it like Ghostbusters to advertise that they are not participating in Obamacare?? They could get in the faces of Progressives and say things like "I qualify for a free bronze plan but I don't want Kenyacare!" Or "Kenyacare in unconstitutional because Obama was born in Kenya and the communist Frank Marshall Davis is his illegitimate father!" Or "I demand to see Obama's grades for his health insurance 101 course at Occidental, and his transfer application to Columbia!" Or go to the local FBI field office and scream "I am breaking a law so you must arrest me! I demand to be arrested by James Comey!"

    They could devote their entire lives to expressing their distaste for Obamacare to such a degree it undermines their careers and leads to society outcasting them. At this point with their careers in ruin and polite society casting them aside they could claim an "injury" from the ACA and they would have standing. I say go for it!

  • NToJ||

    "...Establishment Clause precedents..."

    Which ones? Hein?

  • loveconstitution1789||

    Obamacare was always unconstitutional.

    There is nothing in the US Constitution that allows government to force people to buy products or services.

    ObamaCare was also not a tax, so that never applied.

  • Brett Bellmore||

    And if it was a tax, it originated in the Senate.

    But that's another constitutional violation the judiciary won't admit anyone has "standing" to object to...

  • Sebastian Cremmington||

    So now you are a Robert Byrd Democrat?? You still get the hard hat and lunch pail but now you have to drink Rolling Rock.

  • nonzenze||

    Actually I'm pretty sure anyone that paid the penalty would have standing to assert an Origination Clause claim.

    Thurgood Marshall said as much in Munoz-Flores:


    A law passed in violation of the Origination Clause would thus be no more immune from judicial scrutiny because it was passed by both Houses and signed by the President than would be a law passed in violation of the First Amendment

    That said, PPACA did originate in the House, as the legislative history shows.

  • Brett Bellmore||

    "Actually I'm pretty sure anyone that paid the penalty would have standing to assert an Origination Clause claim."

    No,they'd have standing to run smack into the "enrolled bill" doctrine: If the leaders of Congress attest to a bill having passed both chambers in a constitutional manner, the judiciary refuses to entertain any claims that this is a lie. At the federal level the enrolled bill doctrine is pretty much absolute, the courts will flatly refuse to entertain any claim to the contrary, no matter how much evidence is available.

    "That said, PPACA did originate in the House, as the legislative history shows."

    On the contrary, the legislative history shows that the bill originated in the Senate. They just used an "HR" number from a dead, unrelated bill, which wasn't even a revenue bill. This move, called "gut and replace", pretends that the bill originated in the House, and under the enrolled bill doctrine, the judiciary go along with the pretense.

    But it's still the case back in the real world that the ACA originated in the Senate.

  • Voize of Reazon||

    The most recent high-profile example of this practice is the continuing resolution bill H.R. 695 bouncing between Senate and House with various amounts of wall funding attached. It began life as the Child Protection Improvements Act of 2017.

  • Sebastian Cremmington||

    Query—if Arnold Schwarzenegger ran for president who would have standing to force him out?

  • Eddy||

    Robert Patrick?

  • Sebastian Cremmington||

    Uh oh, I just thought of something worse—who has standing to force AOC out if she runs in 2020??

  • nonzenze||

    If the leaders of Congress attest to a bill having passed both chambers in a constitutional manner, the judiciary refuses to entertain any claims that this is a lie.

    Bro, I quoted the Supreme Court on it. And you just post a reply that does nothing more than literally saying the opposite of what Marshall wrote in Munoz-Flores.

    In fact, it sounds like Marshall is articulating your preferred outcome. What gives?!

  • SimonP||

    I definitely appreciate that there are at least some VCers who are able to oppose the substance of a law while objecting to poor judicial reasoning striking it down. I have a feeling nothing would stop Ilya from accepting the plaintiffs' standing argument, here, for instance.

  • ReaderY||

    Consider the presidential "bully pulpit." Corporations are not entitled to sue because, for example, the President said they shouldn't close their plants and this made them feel bad about closing them.

    When Congress "mandates" without imposing penalties, it is simply using a similar bully pulpit. And the use of such a bully pulpit similarly confers no standing.

    Politicians are entitled to attempt to resolve disputes and address problems by persuasion rather than compulsion. Persuasion is often the preferred method for a stable, peaceful civil society to use. Too much compulsion leads to societal disruption. Persuasion is a necessary part of a civil society. It is not actionable.

  • Jim Logajan||

    The penalty is specified as a time-variable value, not a constant value, as can be seen by reviewing the text of the law (link below). In a few months or years the penalty could be non-zero again. Plaintiffs were compelled to purchase insurance during a period the court held the law to be constitutional because the penalty was deemed a tax. It was the instant the penalty was unpredictably set to zero that harm occurred to plaintiffs, thereby giving them standing, not the period that ensued. This is because they could not instantly undo their previously compelled actions. The hysteresis of harm gives them standing.

    https://www.law.cornell.edu/uscode/text/26/5000A

    P.S. I'd really prefer legal experts to the forums and blogs hosted by reason.com to approach things with a libertarian goal. Robert Heinlein once wrote "Paymasters come in only two sizes: one sort shows you where the book says that you can't have what you've got coming to you; the second sort digs through the book until he finds a paragraph that lets you have what you need even if you don't rate it."

  • nonzenze||

    Interpreting the law doesn't have a goal, it's about coming up with the most faithful way to apply existing doctrine to new cases.

    If a deeply non-libertarian legislature wrote a law (like PPACA) you would expect legal experts opining on the law to say deeply non-libertarian things about it.

  • Jim Logajan||

    When it comes to interpretation of the ACA, the court system, in particular the Supreme Court is operating under Calvinball rules, which makes a schmuck of anyone not playing by those rules. Under Calvinball, a law defining a tax vs. one with a penalty become identical for funding, yet if they are both obeyed only one funds the treasury, as can be seen by this decision matrix (alas, no HTML table tag support?):
    _________Law Funds Government___
    __________Obeyed____Disobeyed___
    Tax Law:____Yes_________No______
    Penalty:_____No_________Yes______
    Article I, Section 8, Clause 1 authorizes taxes only "to pay the Debts and provide for the common Defence and general Welfare of the United States...." A law that is intended to be obeyed does not pay for any of those, so is not authorized by that clause. Unless Calvinball is being played, in which case "penalty" becomes a "tax" and "standing" can be found with sufficient imagination.

  • nonzenze||

    I'm thoroughly confused. Governments at all levels pass laws that they don't believe will be followed 100%.

  • David Welker||

    I will give Adler credit for this. At least he is being consistent with respect to his views of standing and severability despite his policy disagreements with the ACA. Consistency when it has results you do not like is hard; especially for lawyers who are usually skilled at finding and creating nuanced distinctions.

    I have nothing against nuance, by the way. And I think a nuanced distinction can legitimately used to avoid an inconsistency.

    That said, I also have never fully advocated for law to be interpreted in an abstract manner separate from its results in the real world, so I am not holding up the discipline required for consistency up for excessive praise either. But it is notable, if for no other reason than because so often those who have a different ideal than myself, believing that legal reasoning should be "principled" and not focus too much on practical consequences, often have some difficulty not creating every little distinction that is required to get the results they so happen to want in reality. Whether it is the right thing to be "principled" in a particular way or not (some might say rigid in a particular way), it does take discipline to be consistently principled. Every principle that just so happens to lead to the outcome we want in a particular instance is easy to adopt. Principles are hard when they lead us against our preferences.

  • Brian Kennedy||

    Several decades ago, about half my family left the East and settled in Seattle. This led to at least one behavioral difference. In the middle of the night or the middle of nowhere, with no one and no cars around (on a clear night with unimpeded fields of vision to confirm those facts), the Seattle folk will trek dozens of yards to a crosswalk and then wait for the light before crossing the street that the rest of us have insouciantly jaywalked across.

  • Malvolio||

    Can a court dismiss for standing sua sponte? If the respondent fails to raise the issue, isn't that on them?

  • Voize of Reazon||

    The court must be assured of its jurisdiction, that is its lawful authority to hear a case, before considering the merits, and may act sua sponte. Standing (at least the Article III standing referred to in the OP) is an element of jurisdiction. As Chief Justice Roberts wrote in DaimlerChrysler Corp. v. Cuno (citations omitted):

    Before this Court can address the merits of plaintiffs' challenge, it has an obligation to assure itself that the merits question is presented in a proper Article III "case" or "controversy." The case-or-controversy limitation is crucial in maintaining the " 'tripartite allocation of power' " set forth in the Constitution. [...] The requisite elements of standing are familiar: "A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."
  • Lee Moore||

    "A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."

    But this is not enough. Someone injured by the ACA's restrictions on what insurance contracts are permissible and the prices at which they may be sold - and the injured number in the millions - has an injury directly traceable to the ACA. And - for the purposes of the question of his standing, where we may temporarily assume he is right on the merits - the injury is fairly traceable to the individual mandate, since his claim is that there would be no ACA absent the individual mandate. And nixing the ACA would redress his grievances.

    But per Prof Adler, this is not enough, because :

    Plaintiffs must show standing for each part of their claim. They can't play mix and match. (see, e.g. Davis v. FEC, "a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought."). So the plaintiffs must show that they have standing with regard to the individual mandate. The fact that other parts of the law, which plaintiffs do not claim are unconstitutional, may affect them is irrelevant.

  • Sebastian Cremmington||

    The health insurance market has always been heavily regulated so more regulations help some and hurt others just as past regulations have. Look to Congress to change laws and not the courts.

    This judge appears to be a Deplorable and probably thinks he is helping Trump but in reality Trump supports Obamacare because the Kushner family is heavily invested in the Exchanges through Oscar Health.

  • NToJ||

    "...the injury is fairly traceable to the individual mandate..."

    If you're challenging the repeal of the individual mandate, it's going to be difficult to show standing by demonstrating harms traceable to the repealed law.

  • ReaderY||

    My advice to Professor Adler would be to compare the situation to the Ferengi Rules of Acquisition. As any Star Trek fan knows, the Ferengi Rules of Acquisition aren't actually rules. It's just a book of advice. But calling it "rules" was a marketing ploy. If the author had called it the "suggestions of acquisition," who would have bought it? It was just advertising spin to get it taken more seriously and sell more copy.

    The situation is the same here. You don't have to follow "laws" that don't have any consequences. You can not follow them and swear on oath you obeyed the law. They aren't actually laws. Calling them "laws" is just a marketing ploy, a means of persuasion, a way of getting people to take them more seriously. It's marketing fluff. Calling it a law is no different from a company calling its product the "best" or any other kind of non-actionable marketing fluff.

    It's exactly like the Ferengi Rules of Acquisition.

  • Krayt||

    Here's the sick, sad truth, that suggests the posting is an irrelevant observation. The standing rule was to prevent clogging the courts with legal challenges by myriad people. It was not a get out of court free card for government and unconstitutional laws.

    If, for one huge law and case, that is ignored, where is the infirmity? There is none as The People rightly get to question laws. There is nothing to get bent out of shape over. "It is wrong The People challenge this particular law."

    Sorry, no. That is not a valid interest of government.

    In other words, politics as usual.

  • Lee Moore||

    From a purely political point of view, and ignoring whatever legal doctrines the courts may have thought up, there's an interesting symmetry between this standing business and Sam Bray's jihad against national injunctions.

    If y'all would prefer the goverment to mind its own business more often then :

    (a) letting citizens have maximum rights to challenge unconstitutional laws, ie a "liberal" approach to standing, at least where the government is being challenged, would be a good thing, while

    (b) letting the 800 or so federal judges run blocking patterns on the activtities of the federal government, ie a "yes please" approach to national injunctions, would be a good thing.

    The symmetry is that our esteemed libertarian VC bloggers are on the wrong side of both issues - politically. Legally, of course, they may be dead right.

  • ReaderY||

    Has it never occurred to you that if the standing rule weren't in place, any judge who passes by you could simply decide that what you were doing was illegal and simply order you put in jail? Or that whenever your neighbors didn't like what you were doing, they could simply sue you whether what you were doing had anything to do with their business or not?

    It's only standing that prevents every busybody who wants to interfere in others' business because they simply don't like them from running the courts.

  • Lee Moore||

    Hence the calls for a low standing threshold when the government is the defendant

  • NToJ||

    "The standing rule was to prevent clogging the courts..."

    No, it's based on, among other things, separation of powers, judicial deference to coordinate branches, the least dangerous branch, etc. Judicial humility. Shit like that. It has a rich history from John Jay to CJ Roberts.

  • Mike Hansberry||

    Seems the standing argument boils down to when someone is harmed/injured. Is person A injured when person B points a gun at him, or is person A injured only when actually shot?

    The government claims the power to compel the purchase of health insurance by force of law. That its gun today is not loaded does not mean there in no injury. The unconstitutional command remains.

    The heads-we-win-tails-you-lose thing regarding PPACA is beyond ridiculous. The penalty for failing to comply with the mandate of PPACA was transmogrified to a tax when it pleased government, and now we are told that the mandate itself causes no injury in and of itself without some sort of penalty. If one were to set out about to completely destroy respect for the rule of law one could hardly do better. What Alder suggests is that we need not obey laws unless the penalties compel our compliance. As if the law in and of itself deserves, and must be supposed, to hold no respect from the citizens.

    .

  • NToJ||

    "Seems the standing argument boils down to when someone is harmed/injured. Is person A injured when person B points a gun at him, or is person A injured only when actually shot?"

    The strength of your analogy is that it evokes a sense of helplessness when a person with a loaded gun commands you to do something. You then take out the bullets. Then the person puts the gun in his pocket and says he isn't going to shoot anyone. In fact, there was never a gun. Just a person commanding you to do something, while simultaneously telling you that enforcement against you is specifically excepted. Suddenly there's no coercion. But now your analogy is fucking dumb. So cling to the gun example, I suppose.

    "...and now we are told that the mandate itself causes no injury..."

    That's because the law has been changed. But without it causing the injury, there's nothing to challenge! The mandate's unconstitutionality was based on it mandating economic inactivity under the Commerce Clause. If it doesn't even do that, what is there left to challenge?

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