Baldwin’s allegations fail to show injury in fact. Without expressing a view as to what would pass muster, we note that Baldwin does not aver that he currently lacks qualifying health insurance so that he would be non-compliant when the Act goes into effect. He also does not claim, like some other plaintiffs who have brought similar suits, that he must save money now to purchase insurance in 2014. See, e.g., Thomas More Law Ctr. v. Obama, ___ F.3d ___, 2011 WL 2556039, at *3 (6th Cir. June 29, 2011).
Neither has Baldwin raised a justiciable preenforcement challenge to the Act, for he has not established a “genuine threat of imminent prosecution” as we require. Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc) (internal quotation marks omitted). He articulates no concrete plan to be inadequately insured in the future.
Baldwin’s submissions to the contrary are unpersuasive. He argues that he has suffered injury because he must take investigatory steps to determine if he is in compliance with the Act. But this is not a particularized injury that distinguishes Baldwin’s position from everyone else to whom the Act may apply. Baldwin also suggests that by alleging lack of consent to being compelled to buy insurance, he is implicitly stating that he doesn’t have insurance; however, that reads more into his “lack of consent” than the allegation will bear. At the end of the day, it is just another way of objecting to the provision and remains a generalized grievance.
To the extent the Institute challenges the individual mandate, it does not have standing because the provision does not apply to employers. See Act, § 1501, 124 Stat. 119, 242-49. And to the extent the Institute challenges the employer shared responsibility provision, it does not have standing because it failed to allege it had over 50 employees so that it would be subject to the provision. See Act, § 1513, 124 Stat. 119, 253-56. The Institute’s claim of associational standing comes too late as it was raised in the reply brief, and regardless, it fails because there is no allegation that any of the Institute’s members have standing. See Fleck & Assocs., Inc. v. Phoenix, 471 F.3d 1100, 1105-06 (9th Cir. 2006).
In short, neither Baldwin nor the Institute has shown injury in fact, or a genuine threat of prosecution, sufficient to give them standing or make their challenge justiciable.You can find the Ninth Circuit's full opinion here.