http://thehill.com/policy/healthcare/232725-obamacare-fans-scotus-case-unravelingBy Sarah Ferris - 02/13/15 06:00 AM EST
Supporters of ObamaCare think they’ve found a fatal flaw in the GOP-led legal challenge to the healthcare law at the Supreme Court.
Legal experts in favor of the Affordable Care Act say new information unearthed about the plaintiffs in King v. Burwell could derail the case before the justices have a chance to rule.
“The case made by the [Affordable Care Act]’s opponents is unraveling around them,” Brianne Good and Joey Meyer, legal experts from the progressive group Constitutional Accountability Center, wrote in a blog this week.
The standing of the four plaintiffs in the case has come under intense media scrutiny, with at least three of the challengers now facing claims they are not personally harmed by the law and therefore do not have standing to sue.
A problem with standing could be trouble for the plaintiffs and the conservative groups leading the lawsuit, including the Competitive Enterprise Institute, which is funding the lawsuit.
Sam Kazman, general counsel for the Competitive Enterprise Institute, said he is “confident of the standing of our plaintiffs.” He added that the government has twice tried to challenge their standing and lost.
Some legal experts see things differently.
Tim Jost, a longtime supporter of the law and a professor at Washington and Lee University School of Law, said recent reports about the plaintiffs from The Wall Street Journal, Mother Jones and other publications could put the case in jeopardy.
“The case has been coming apart at the seams for a long time, and this is one part of that,” Jost said. “I think the main point of all this is that it illustrates that [the conservative groups] happened to troll up four individuals that had some arguable claim that they might have some arguable injury.”
Two of the plaintiffs, David King and Douglas Hurst, are Vietnam veterans who would likely qualify for healthcare through the Department of Veterans Affairs, according to The Wall Street Journal. Additionally, King and another plaintiff, Rose Luck, appear to be exempt from the individual mandate because their incomes are below the law’s threshold.
Three of the plaintiffs, including another named Barbara Levy, are nearly eligible for Medicare, which could make their case moot because ObamaCare would not be available to them.
While the Obama administration hasn’t said whether it will pursue a new challenge to the case based on the latest information, several legal experts said it would be a strong strategy.
“I think they should definitely [challenge standing], without question,” said Allison Hoffman, an assistant law professor at UCLA. “I’m sure they are.”
The case, King v. Burwell, will decide the legality of ObamaCare subsidies in 34 states. Without the billions of dollars provided to help people pay for insurance, the president’s signature healthcare law would have to be fundamentally reshaped.
Most experts said the new evidence against the plaintiffs is likely not damning enough for the case to be dismissed outright. The case could still proceed if at least one of the plaintiffs could argue that ObamaCare would injure him or her.
The plaintiffs’ central argument is that the healthcare law explicitly prohibits subsidies from being distributed in states that did not build their own healthcare exchanges. Right now, the federal aid is being handed out to ObamaCare enrollees who sign up on the federal exchange, HealthCare.gov.
Authors of the law have chalked up the subsidy language to a drafting error, and say it’s clear that Congress intended for the financial aid to be provided to everyone, regardless of whether their state establishes an exchange.
The challengers at the Supreme Court beg to differ, and say it’s clear that subsidies are being distributed illegally and should be stopped.
That legality of the subsidies would still be relevant even if the plaintiff’s credibility were undermined, said Tom Miller, a healthcare policy fellow at the American Enterprise Institute, which helped launch the case.
If the plaintiffs’ standing were questioned, it would only cause a delay — not a dismissal, he said.
“Do we really want to back up the truck on this on a less-than-proven set of factoids from a news story?” Miller said.
Other information that has emerged on the plaintiffs, such as reports that they have called Obama the “anti-Christ” and “the idiot in the White House,” also has no relevance, legal experts said.
“The unattractiveness of the plaintiffs can raise questions about what a lawsuit is really about and what the stakes of the lawsuit really are,” Nicholas Bagley, a constitutional law and healthcare law expert at the University of Michigan Law School.
“But whether these plaintiffs have ideological convictions or strongly held views about any number of issues is beyond the point,” he added.
The Supreme Court is scheduled to hear oral arguments in King V. Burwell in March, with a ruling expected sometime this summer.
