Thursday, May 26, 2011

Plaintiff in TMLC v. Obama alerts court that she has acquired health insurance

Another interesting development in Thomas More Law Center v. Obama concerning whether the plaintiffs have standing. The plaintiffs have filed with the Sixth Circuit an additional letter, supplementing the letter brief they filed Monday, alerting the court that one of the individual plaintiffs in the case, Jann DeMars, is currently insured, having acquired health coverage through her employer in October. Here are the critical two paragraphs from the letter:

In October 2010, Plaintiff DeMars began purchasing healthcare insurance through her employer at a cost of $304.94 per month (the policy she purchased covers her child). While this reduced her financial burden from $9,914.28 (the estimated cost of an insurance plan if she purchased it outside of her employment) (R-28: Order at 5), to $3,659.28, it does not exempt her from the Act’s requirement that she maintain “minimum essential” coverage indefinitely, nor does it remove the financial burden of this requirement. Moreover, as she stated below in her declaration, as a responsible citizen she will comply with the Act rather than pay the penalty. Consequently, she was organizing (and continues to organize today) her affairs so that she could purchase insurance coverage prior to 2014 (and maintain that insurance coverage) and thus avoid the proscriptions of the Individual Mandate.4 (R-18: Pl.’s Supp. Decl. at ¶ 5, at Ex. 1). 
In the final analysis, there has been no material change in Plaintiff DeMars’ position (nor has there been a material change of facts that would deprive this court of its jurisdiction to hear this case)—she remains subject to the Act, and there is now and will be in the future a financial burden imposed as a result. Moreover, none of the other Plaintiffs has purchased health insurance coverage, thereby subjecting them to the penalty provision as well as the “economic burden” that is presently carried by all Plaintiffs, including Plaintiff DeMars. Thus, there can be no question that at least one Plaintiff has standing to exercise this court’s jurisdiction to hear and decide the case.

This, of course, makes it harder for DeMars to claim that, when she is legally required to purchase health insurance in January 2014, this requirement will be the cause of any injury in fact from the mandate, as she is now voluntarily engaging in the very act she claims will be causing her harm. (And perhaps it is just as difficult, by extension, for her to claim that she is having to take steps now in advance of that legal mandate.) Suffice it to say that much of the argument in Cincinnati next week may have little to do with the merits, and much to do with justiciability.

You can find the full text of the appellants' supplemental letter here.