Challenger Michael Carvin appears to be standing here.

Photographer: Andrew Harrer/Bloomberg

Government Wants Obamacare Ruling Now

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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Justice Ruth Bader Ginsburg opened the King v. Burwell argument Wednesday in the U.S. Supreme Court by asking whether the challengers are actually being injured by the Affordable Care Act and have standing to bring the case. Then something weird happened. Even though the lawyer for the challengers couldn’t definitively say his clients had standing, Solicitor General Don Verrilli seemed not to want the court to dismiss the challenge to Obamacare on that ground. Indeed, he bent over backward to say that silence from the challengers’ lawyer would suffice to infer that at least one of the four challengers was actually injured and that the case could proceed.

What gives? Ordinarily, if you were representing the side with the most to lose in a case, and there was some meaningful chance of defeat, you’d jump at the opportunity to make the case go away. The lawyer seeks victory in the case before him. The grounds of the decision come second.

Related: Obamacare Is on Roberts's Shoulders, Again

Related: The Heart of the Obamacare Case

Before trying to explain the solicitor general's odd strategic behavior, let me briefly describe what was going on legally. Under the Constitution, as understood by the justices, a federal court can only decide a case if at least one plaintiff has suffered “injury in fact.” It’s not enough if you don’t like a law. It has to harm you for your case to proceed. And in principle, except in certain unusual circumstances, the harm must be ongoing while the case proceeds to decision.

As I’ve written here before, the government never challenged the King petitioners’ standing. But reporters investigating the issue did. And it’s within the court’s power to raise the problem of standing on its own, because it goes to the court’s very authority to hear the case.

Ginsburg’s concern, expressed at the outset of the argument, was that potentially all four of the challengers lacked standing. She knew a lot about the details of their lives and financial circumstances, showing she’d done significant research.

Michael Carvin, representing the petitioners, all but conceded that two of the four might not have standing. He insisted that two of them, both men, did in fact have standing. Ginsburg then said the issue could wait for the solicitor general's time to speak.

When Verrilli stood up, matters went a little askew. He said that the case had proceeded on the basis of representations by the plaintiffs before the lower court in 2013 that they projected their incomes to a certain level for 2014. Standing therefore depended, he said, on whether they had earned what they expected in 2014. And the government wasn’t in possession of that information.

Chief Justice John Roberts and Justice Samuel Alito had clearly been thinking the issue over. Roberts asked Verrilli if the government was raising standing for the first time during the oral argument. Verrilli said no, it wasn’t -- he was just answering Ginsburg’s question.

Alito proposed that the real issue wasn’t whether standing existed now, but whether the district court was right to find it in 2013. Verrilli didn’t bite -- for the case to go forward, he said, someone must have standing now.

To this point, it was possible to imagine that Verrilli was being tentative, but remained open to winning on standing. That possibility was all but ruled out by an exchange that followed between Verrilli and Justice Sonia Sotomayor. She asked the solicitor general if the court could rely on a representation from Carvin, the petitioners’ lawyer, that one of the plaintiffs had earned enough to be affected by the exchanges at issue.

At first, Verrilli said yes. Then, he clarified. “I’m actually going to [go] a step further than that,” he said. “I’m willing to accept the absence of a representation as an indication that there is a case or controversy here.”

Verrilli had clearly prepared this response -- and it’s extremely surprising and odd. In effect, Verrilli was saying he didn’t want to make Carvin say his clients had standing -- presumably because he wouldn’t want Carvin to have to lie if they didn’t. The strong implication was that the government wants the case to go forward no matter what, even if it could win on standing.

Why? The most logical explanation is that Verrilli thinks the government is going to win anyway. On this theory, Verrilli doesn’t want to give Roberts or Justice Anthony Kennedy the chance to dismiss the case on standing. He wants to hold their feet to the fire and demand a decision on the merits, expecting one or both of them to give him their votes.

The adjunct to this is what would happen if the case were dismissed on standing grounds: It would come back later, with different plaintiffs. That would be fine -- unless Jeb Bush or another Republican is president and a new solicitor general won’t defend the statute as Barack Obama's administration reads it. The government might not want to wait for another round -- even if it means cutting corners on standing.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

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