Here we go, one more time.

Photographer: Andrew Harrer/Bloomberg

How the Supreme Court Could Save Obamacare Again

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Could the U.S. Supreme Court allow the Affordable Care Act to survive its latest legal challenge because the plaintiffs in the case before it haven’t been injured by the law? It’s possible. The more probable result is still that the court will reach a decision on the merits of the case and eliminate the insurance subsidies necessary to make the law work in many states.

But if Chief Justice John Roberts wants to avoid the criticism that the Roberts court is the most activist conservative court in history, he could plausibly use the standing argument to avoid a decision -- especially if he could get cover from the archconservative Justice Antonin Scalia, who more or less invented the constitutional doctrine of standing in a 1992 case argued successfully by -- you guessed it -- then-Deputy Solicitor General John Roberts.

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Start by giving credit where it’s due: The argument that the plaintiffs in King v. Burwell lack standing wasn’t conceived by the Barack Obama administration, which didn’t raise the issue in its briefs for the case to be argued March 4. It was dreamed up by an enterprising journalist who tracked down the plaintiffs and got the details of their life situations.

According to the article by Stephanie Mencimer in Mother Jones, and the flurry of Internet speculation that followed, it’s possible none of the four plaintiffs has been legally affected by having to buy insurance subject to the subsidies involved in the case. As a threshold matter, the justices would have to be able to ascertain this circumstance from the record for the standing issue to arise. The court can’t take judicial notice of investigative journalism, no matter how clever.

Yet if it’s possible to deduce from the record that the plaintiffs qualify for hardship exemptions from paying for insurance, then it’s within the court’s prerogative to consider the issue. The reason is tricky but interesting. Under the Supreme Court’s jurisprudence, an “injury in fact” is a constitutionally necessary prerequisite for the court to hear a case. If there’s no such injury, there’s no “case or controversy” that the court would be entitled to hear under Article III of the Constitution. Therefore, the court has held, the question of standing is what’s called “jurisdictional” -- and such a jurisdictional question can be raised by the court on its own, even if the parties never mention the problem.

Must the court address the question of standing? Here things get murkier. In theory, if the court knows it doesn’t have standing, it lacks the power to proceed. In practice, the court sometimes hears cases where, in retrospect, standing seems not to have existed. Justice Scalia once memorably referred to these cases as “drive-by” jurisdictional rulings -- and increasingly, the court refuses to treat them as precedential. By ignoring the standing issue in King v. Burwell, the court could simply create another drive-by ruling and decide on the merits.

Assuming it was legally viable, however, might Roberts choose to avoid reaching a decision by denying standing? The argument in favor is more political than legal. In the last ACA case, National Federation of Independent Business v. Sebelius, Roberts famously defected from his four conservative colleagues by refusing to strike down the individual insurance mandate on which the ACA rests. In return he got accolades from constitutional commentators -- including me -- who lauded this exercise of genuine judicial restraint. At the same time, Roberts took a beating from conservative legal stalwarts, who read the decision as a defection from the activist conservatism associated with the Reagan Revolution and the Federalist Society. It’s no exaggeration to say that Roberts, previously a darling of conservative legal circles, came perilously close to becoming a traitor to his (legal) class.

If Roberts were to provide the fifth vote to save Obamacare again, his defection would appear to be complete. The personal and political costs would be high. It’s difficult to imagine Roberts paying the price -- unless he had some cover to do it.

The only conservative justice who could possibly provide cover for Roberts to avoid the merits would be Scalia, still the intellectual leader of the court’s conservative wing. Scalia is a stickler for standing. In the 1992 Lujan v. Defenders of Wildlife decision, he denied standing to environmental activists who had visited far-flung places in search of fugitive endangered wildlife -- because they hadn’t been sufficiently injured by a regulatory change and arguably made the species likely to be endangered. Then, his tone was ironic.

More recently, dissenting in U.S. v. Windsor, the case in which the Supreme Court struck down the Defense of Marriage Act, Scalia’s tone veered into withering outrage. “The court is eager -- hungry -- to tell everyone its view of the legal question at the heart of this case,” he roared. In his view, there was no standing, so the court had no business deciding the case.

It’s just as conceivable that his strident views on standing might lead Scalia to join Roberts in a decision to put off a decision in King v. Burwell. If he would, it seems likely that Roberts would choose that option. It would among other things keep the ACA on the table as an election issue in 2016. It would enable the Roberts court to avoid being pilloried for judicial activism. And if there’s anyone immune from the criticism that he’s gone soft on the liberals, it’s Antonin Scalia.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net