Monday, July 19, 2010

The justiciability questions

One issue that has consumed much of the space in the parties’ briefs in both of the lawsuits—but which has received comparatively little attention in the media and elsewhere—is whether either of the disputes are presently justiciable. That is, are these controversies, presented by these plaintiffs at this particular time, within the power of the federal courts to resolve?

There are several distinct justiciability questions raised by the two lawsuits, some constitutional and some statutory. And these questions may be especially important in the coming months, as they may be the only issues that the district courts reach in their rulings this fall. My aim in this post is simply to identify all the justiciability questions in play; I hope to analyze them in more detail in some future posts.

A. Virginia v. Sebelius

Let’s examine the Virginia lawsuit first. Again, Virginia’s only constitutional claim is that the individual insurance mandate (ACA § 1501) exceeds Congress’s enumerated powers—that it is beyond Congress’s commerce and taxing powers, and that even if it is justified by the taxing power, it constitutes an unapportioned “direct tax” (in violation of Article I, § 9). There are three or four distinct justiciability questions for Judge Hudson to decide before he can reach the merits:

1. Has Virginia suffered an injury-in-fact (both “concrete” and “particularized”) from ACA §1501 that is sufficient to justify standing under Article III’s “case or controversy” requirement? The basic argument is that, even if the insurance mandate is unconstitutional, it only harms the individuals affected, not the Commonwealth of Virginia itself. As a general rule, states lack parens patriae standing to litigate the constitutionality of federal laws affecting their citizens. And it is unclear how §1501 harms the Commonwealth’s own, distinct interests as a sovereign.

1a. Even if Virginia would typically lack standing to raise this sort of claim, does it nonetheless have standing here because the Virginia legislature enacted Virginia Code §38.2–3430.1:1, which states that “[n]o resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage,” such that Virginia has an injury to its sovereignty in being prohibited from enforcing state law? Is a state’s enactment of such a statute relevant to the standing inquiry?

2. Does the federal Anti-Injunction Act, 26 U.S.C. §7421(a)—which generally bars subject matter jurisdiction over any action seeking to enjoin the assessment or collection of a tax—forbid Virginia from maintaining its action in federal court? The sanction for failure to conform to §1501(a) is an assessment on the individual’s tax return. If this is properly considered a “tax” (and perhaps even if it is considered a “penalty”), the AIA may preclude a lawsuit to challenge its constitutionality until after the government has actually made such an assessment. 

3. Even if the injury is sufficiently concrete and particularized, and even if the action is not barred by the AIA, is it nonetheless unripe because the mandate does not go into effect until January 1, 2014, such that any injury that the Commonwealth now asserts may never actually come too pass?

B. Florida v. HHS

The Florida lawsuit presents three of the same justiciablity questions (questions 1 through 3 below). But because the lawsuit also raises sovereignty-related challenges to various requirements that the ACA imposes on the states, and because the states have added two individuals (Mary Brown and Kaj Ahlburg) and an organization (the National Federation of Independent Businesses) as plaintiffs, it raises three other justiciablity issues as well.

1. Do the states have a concrete and particularized injury sufficient to justify their standing to challenge ACA §1501?

2. Does the Anti-Injunction Act preclude federal court jurisdiction over any action attempting to enjoin the enforcement of §1501?

3. Is any challenge to §1501, at least at this point in time, unripe?

4. Have the individual plaintiffs who have joined the litigation (Mary Brown and Kaj Ahlburg) demonstrated an “actual” or “imminent” injury from the operation of §1501? Or instead, is their alleged injury too speculative, given that they may well acquire some form of health coverage between now and January 1, 2014?

5. Does the NFIB meet all three of the requirements necessary to sustain associational standing to challenge §1501? Specifically, (a) does the NFIB have any individual members who would have standing in their own right? (This is essentially the same question as that for Brown and Ahlburg.) (b) Is challenging §1501 germane to the NFIB’s organizational purpose? And (c) is this a case in which individual participation in the lawsuit, rather than an organization’s participation, is necessary?

6. Have the states yet suffered an injury sufficient to challenge the requirements imposed on large employers? Specifically, is this claim unripe because the requirements do not go into effect until 2014, and the Secretary of HHS has yet to promulgate any of the regulations that will spell out in detail how these requirements will operate? And has the state demonstrated that it is likely to be harmed by these provisions, or is such a claim at this point merely speculative?

As best I can tell, those are all the justiciability questions in play. Again, I hope to flesh out these issues with greater detail in the coming weeks.