We are about two weeks from Judge Vinson's ruling on the United States's motion to dismiss in Florida v. HHS. And a threshold question he likely will have to resolve is whether the states have standing to challenge ACA 1501, the minimum coverage requirement. (The states have joined two individual plaintiffs, who may have standing to challenge 1501 even if the states do not. But the court will likely have to rule on the states' independent standing to press this claim.)
One of the arguments that the states press in their memorandum in opposition to the motion to dismiss is as follows: (1) we have an injury from the ACA's Medicaid provisions, which force us to significantly expand coverage at great cost; (2) the minimum coverage requirement is not severable from the rest of the Act; (3) thus, if the minimum coverage requirement is unconstitutional, then the entire Act is unconstitutional; and (4) so even if we are only injured by the ACA's Medicaid provsions, we have standing to challenge 1501 because a decision declaring it unconstitutional would bring down the whole Act.
I readily concede that many of the issues in the ACA litigation are uncertain and susceptible to arguments on both sides. But this issue is not one of them. This simply cannot be right.
A basic tenet of Article III is that the plaintiff must have a "concrete and particularized" injury in fact that is traceable to the law or act the plaintiff challenges. It is not enough to be harmed by a provision that, because it was enacted at the same time (and in the same statute) as another provision, might be rendered legally suspect by a decision addressing that other provision. This confuses injury with redressability, which the Supreme Court has denominated as an independent requirement for standing under Article III. That is, having the individual mandate declared unconstitutional might redress the harm that the states are claiming from the Medicaid provision, as it might result in the entire Act being declared unconstitutional. But it fails to show that the states are actually harmed by the individual mandate. Were this not the case, then a showing of redressability would always be sufficient to establish an injury in fact, and the two requirements would have no independent significance.
To be clear, the states make other arguments as to why they are harmed by the minimum coverage provision. And those arguments are at least facially plausible (though I think, ultimately, the injuries they allege are probably too attenuated to satisfy the constitutional standard).
But this bootstrap-through-a-lack-of-severability argument seems just plain wrong. Being harmed by one provision of a 2,000-page statute cannot give a plaintiff Article III standing to challenge every single subsection of that statute, so long as the plaintiff also alleges that the subsection at issue is not severable.
