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Lawsuits over the Affordable Care Act might not be valid

There are two cases about the constitutionality of health reform in federal appeals court right now. Last week we talked about hearings in the Fourth Circuit Court. Early next month judges in the Sixth Circuit Court are supposed to hear the next case, which was a joint suit brought by Attorneys General from 26 states.

But that next one is already getting interesting. The three judges (two of which were appointed by Republicans, and one by a Democrat) sent letters to both sides asking for briefs on procedural questions.  The questions deal with standing (citizens can’t file a federal suit challenging a law, unless they can show they’ve suffered a material injury because of that law) and ripeness (courts don’t decide cases concerning possible injuries far into the future that may or may not happen). Specifically, the judges asked:

  1. Whether the plaintiffs can show they have suffered an “injury in fact” or face an “imminent injury,” even though the law doesn’t take effect until 2014.
  2. For details on the penalties for violating the individual mandate and the extent to which they would actually cause “injury and hardship.”

Now, these briefs may just sound like boring legal procedural stuff, but as former acting Solicitor General Walter Dellinger explained to The New Republic’s Jonathan Cohn:

The order to brief the procedural issues is a hugely significant development, long overdue. It’s about time, for heaven’s sake, that attention is finally paid to the fact that there are no real lawsuits over the “mandate” at this time. None of the pending “individual mandate” cases is a real law suit because the government is not at this time mandating that anybody do anything.

The responsibility of federal courts is to resolve actual disputes at the behest of parties with a real stake in the outcome. The penalty provisions of the act only require certain individuals to pay a surcharge (not to exceed 2.5%) on their income tax in any year after 2014 that they fail to maintain adequate health insurance coverage. The only enforcement mechanism is that IRS can deduct that surcharge from any refund due a taxpayer who has chosen not to maintain adequate coverage. Such a taxpayer can then contest the withholding of the full refund. Nobody else (and certainly not the state Attorneys General) has standing to bring such a challenge, and nobody at all has standing to do so before 2014.

Wonkroom’s Ian Millhiser agrees that the letter from the judges is a big deal:

This kind of letter instructing the parties to brief additional questions is not unheard of, but it is somewhat unusual. It indicates that the court is troubled by these three procedural questions — or even, potentially, that the court is looking for a way to make the case go away. In either event, it opens up the strong possibility that the Sixth Circuit will dismiss this case without reaching the merits of whether the ACA is constitutional.

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