Wednesday, July 23, 2014
By now most folks have seen yesterday’s conflicting rulings over whether the Affordable Care Act authorizes subsidies for individuals who purchase insurance on a federal exchange (as opposed to exchanges run by the states). The D.C. Circuit found that such subsidies were not statutorily authorized (the Halbig case). And an hour later, the Fourth Circuit found that the subsidies were statutorily authorized (the King case).
The merits of these decisions, as a practical matter and in terms of statutory interpretation, have received tremendous attention. But Article III standing was also an issue in both Halbig and King. Who, after all, suffers the constitutionally required “injury in fact” by virtue of receiving a subsidy? The answer: People who would be subject to the individual mandate if they are entitled to the subsidy but would not be subject to the individual mandate (on income grounds) without the subsidy. Here’s how the Halbig majority explained it with respect to one of the plaintiffs in that case, David Klemencic:
Klemencic resides in West Virginia, a state that did not establish its own Exchange, and expects to earn approximately $20,000 this year. He avers that he does not wish to purchase health insurance and that, but for federal credits, he would be exempt from the individual mandate because the unsubsidized cost of coverage would exceed eight percent of his income. The availability of credits on West Virginia’s federal Exchange therefore confronts Klemencic with a choice he’d rather avoid: purchase health insurance at a subsidized cost of less than $21 per year or pay a somewhat greater tax penalty.
The D.C. Circuit found that this was sufficient for purposes of Article III standing, and the Fourth Circuit reached the same conclusion. From the Halbig majority opinion (footnote omitted):
The government characterizes Klemencic’s injury as purely ideological and hence neither concrete nor particularized. But, although Klemencic admits to being at least partly motivated by opposition to “government handouts,” he has established that, by making subsidies available in West Virginia, the IRS Rule will have quantifiable economic consequences particular to him. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (explaining that a “threatened injury” that is “certainly impending” may “constitute injury in fact” (emphasis and internal quotation marks omitted)). Those consequences may be small, but even an “‘identifiable trifle’” of harm may establish standing. Chevron Natural Gas v. FERC, 199 F. App’x 2, 4 (D.C. Cir. 2006) (quoting United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973)); see Bob Jones Univ. v. United States, 461 U.S. 574, 581-82 (1983) (noting that Bob Jones University sued for a tax refund of $21.00). Klemencic thus satisfies the requirement of establishing an injury in fact, and because that injury is traceable to the IRS Rule and redressable through a judicial decision invalidating the rule, we find that he has standing to challenge the rule.
And from the King opinion:
We agree that this represents a concrete economic injury that is directly traceable to the IRS Rule. The IRS Rule forces the plaintiffs to purchase a product they otherwise would not, at an expense to them, or to pay the tax penalty for failing to comply with the individual mandate, also subjecting them to some financial cost. Although it is counterintuitive, the tax credits, working in tandem with the Act’s individual mandate, impose a financial burden on the plaintiffs.
The defendants’ argument against standing is premised on the claim that the plaintiffs want to purchase “catastrophic” insurance coverage, which in some cases is more expensive than subsidized comprehensive coverage required by the Act. The defendants thus claim that the plaintiffs have acknowledged they would actually expend more money on a separate policy even if they were eligible for the credits. Regardless of the viability of this argument, it rests on an incorrect premise. The defendants misread the plaintiffs’ complaint, which, while mentioning the possibility that several of the plaintiffs wish to purchase catastrophic coverage, also clearly alleges that each plaintiff does not want to buy comprehensive, ACA-compliant coverage and is harmed by having to do so or pay a penalty. The harm in this case is having to choose between ACA-compliant coverage and the penalty, both of which represent a financial cost to the plaintiffs. That harm is actual or imminent, and is directly traceable to the IRS Rule.
Monday, November 18, 2013
Earlier this month we covered Chief Justice Roberts’ statement in Marek v. Lane, a case challenging a class action settlement that included cy pres remedies. In his statement, Chief Justice Roberts agreed with the decision to deny certiorari but raised a number of concerns about cy pres remedies, concluding that “[i]n a suitable case, this Court may need to clarify the limits on the use of such remedies.”
Today, Justice Alito issued a similar statement “respecting the denial of the petition for writ of certiorari” in another case involving a class action settlement: Martin v. Blessing (No. 13-169). You can find his six-page statement in today’s order list, beginning on page 13 of the pdf file. It begins:
The petition in this case challenges a highly unusual practice followed by one District Court Judge in assessing the adequacy of counsel in class actions. This judge insists that class counsel “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” App. to Pet. for Cert. 35a. The uniqueness of this practice weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.
The judge is U.S. District Judge Harold Baer of the Southern District of New York, and Justice Alito writes that “[b]ased on the materials now before us, I am hard-pressed to see any ground on which Judge Baer’s practice can be defended.” [p.3]
Friday, June 28, 2013
This week the Supreme Court issued its much-anticipated decisions in Windsor v. United States (on the federal Defense of Marriage Act) and Hollingsworth v. Perry (on California’s Prop. 8). Both cases presented significant questions with respect to Article III jurisdiction and standing, which were excellently summarized earlier this year by Marty Lederman’s seven-part series for SCOTUSblog.
In Windsor, a five-Justice majority opinion authored by Justice Kennedy (joined by Ginsburg, Breyer, Sotomayor, and Kagan) found that Article III jurisdiction was proper and that the Court should not invoke prudential grounds to refrain from exercising jurisdiction; the majority then concluded that DOMA was unconstitutional.
In Perry, a five-Justice majority opinion authored by Chief Justice Roberts concluded that the intervenors who supported Proposition 8 lacked Article III standing to challenge the district court’s order declaring Prop. 8 unconstitutional and enjoining California officials from enforcing it. Perry was a particularly interesting 5-4 split: The Chief was joined by Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy dissented, joined by Thomas, Alito, and Sotomayor.
From a jurisdictional standpoint, one crucial difference was that in Windsor, the federal government enforced DOMA (by denying Windsor the requested refund) and then proceeded to seek review of both the district court and appellate court rulings that DOMA was unconstitutional. As Kennedy puts it: “It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling.” In Perry, on the other hand, the California government did not appeal the district court’s order and injunction. Perhaps the standing inquiry in Perry would have come out differently if the California government had adopted a litigation strategy similar to the one the U.S. government took in Windsor.
For anyone counting heads, here’s how each Justice came down on the Article III issues in both cases:
- Kennedy, Alito and Sotomayor supported exercising jurisdiction in both Windsor and Perry. (Alito is somewhat unique as to Windsor, because he argued that the U.S. government “clearly is not a proper petitioner” given its position that DOMA was unconstitutional; he argued instead that jurisdiction was proper because the House of Representatives’ Bipartisan Legal Advisory Group had standing as intervenors.)
- Roberts and Scalia opposed exercising jurisdiction in both Windsor and Perry.
- Ginsburg, Breyer and Kagan supported jurisdiction in Windsor and opposed jurisdiction in Perry.
- Thomas supported jurisdiction in Perry and opposed jurisdiction in Windsor.
Wednesday, March 27, 2013
As covered earlier (e.g., here, here, and here), Windsor presents some interesting issues relating to jurisdiction and Article III standing, to which the Court devoted the first half (almost an hour's worth) of the oral argument .
Tuesday, March 26, 2013
Thursday, March 14, 2013
The University of Pennsylvania Law Review Online has a featured essay by Suzanne B. Goldberg (Columbia) entitled Article III Double-Dipping: Proposition 8's Sponsors, BLAG, and the Government's Interest. It begins:
A major procedural question looms over the two marriage cases currently before the U.S. Supreme Court: Do the parties who seek to defend the marriage-recognition bans have standing to advance their views? The question arises because the governments that would have Article III standing, by virtue of their enforcement authority, are not defending their own laws. Instead, in Hollingsworth v. Perry, private parties are attempting to take up the state government’s mantle to defend Proposition 8, which withdrew marriage rights from same-sex couples in California. And in United States v. Windsor, five members of the House of Representatives leadership seek to defend the federal Defense of Marriage Act in the name of the Bipartisan Legal Advisory Group. Not only are these parties not clearly authorized by the appropriate legislative bodies to pursue such actions, but there are two more fundamental difficulties with the Perry petitioners’ and BLAG’s claims to standing. First, each presents the Article III double-dipping problem to which this Essay’s title refers. The problem arises because there are parties asserting the government’s interest and, therefore, the government’s standing, on both sides of each case. The second problem arises from the premise, essential to the standing claims of both the Perry petitioners and BLAG, that governments can confer their Article III standing on private actors and subsets of legislators. The difficulty is that the government’s standing derives from its interest in enforcing its laws, which is not an interest shared by either group. In this essay, I argue that both the double-dipping problem and the limits on a government’s ability to transfer its standing to private actors in this context leave Proposition 8’s sponsors and BLAG without Article III standing to press their positions. Nor can either group of would-be defenders demonstrate the “concrete and particularized” stake it would need to have standing in its own right rather than on the government’s behalf. In short, neither party can answer the Supreme Court’s question in the affirmative.
Monday, March 4, 2013
Here are links to some recent coverage of last week’s Supreme Court decision in Clapper v. Amnesty International, which rejected a challenge to federal wiretapping procedures for lack of Article III standing:
Tuesday, February 26, 2013
Today the Supreme Court decided Clapper v. Amnesty International (No. 11-1025), covered earlier here. By a 5-to-4 vote, it found that the plaintiffs lacked Article III standing to challenge the 2008 amendments to the Foreign Intelligence Surveillance Act.
Justice Alito wrote the majority opinion (joined by Roberts, Scalia, Kennedy, and Thomas) and Justice Breyer wrote the dissent (joined by Ginsburg, Sotomayor, and Kagan).
Tuesday, January 22, 2013
Over at SCOTUSblog, Prof. Marty Lederman (Georgetown) has a deep dive into the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). Links to the entire series—Understanding standing: The Court’s Article III questions in the same-sex marriage cases—below:
Friday, January 18, 2013
Now on SCOTUSblog is a second post by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (II).
Thursday, January 17, 2013
Now on SCOTUSblog is the first of several posts by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (I).
Thursday, December 13, 2012
- Walter Dellinger, No Harm, No Standing (Slate)
- Linda Greenhouse, Standing and Delivering (N.Y. Times)
Tuesday, December 11, 2012
Today the Supreme Court issued an order in United States v. Windsor (docket no. 12-307) appointing Prof. Vicki Jackson (Harvard) “to brief and argue this case, as amicus curiae, in support of the positions that the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case, and that the Bipartisan Legal Advisory Group of the United States House of Representatives lacks Article III standing in this case.”
For more coverage, check out Lyle Denniston (SCOTUSblog).
Monday, December 10, 2012
We covered earlier the additional questions the Supreme Court asked the parties to brief in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307), especially on the issue of Article III standing. Here’s some recent coverage of those issues:
- Prawfsblawg, by Howard Wasserman (Florida International)
- SCOTUSblog, by Neal Devins & Tara Grove (William & Mary)
Friday, December 7, 2012
SCOTUS Cert Grants of Interest: Hollingsworth v. Perry; U.S. v. Windsor; Oxford Health Plans v. Sutter
Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the Second and Third Circuits have held) or exceeds those powers (as the Fifth Circuit has held) by determining that parties affirmatively "agreed to authorize class arbitration," Stolt-Nielsen, 130 S. Ct. at 1776, based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.
Not surprisingly, the cert grants in two cases on same-sex marriage—Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307)—have garnered considerable attention. The Court asked the parties in these cases to brief some additional questions that may be of particular interest to our readers, including an issue that’s has been all over the Court’s docket this Term – standing.
In Hollingsworth, the Court ordered:
In addition to the question presented by the petition, the parties are directed to brief and argue the following question: whether petitioners have standing under Article III, §2 of the Constitution in this case.
In Windsor, the Court ordered:
In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
Sunday, October 28, 2012
SCOTUS Oral Argument in Clapper v. Amnesty International: Article III Standing to Challenge Federal Wiretapping Procedures
Although Hurricane Sandy may change things, the Supreme Court is still – as of this post anyway – scheduled to hear oral argument tomorrow in Clapper v. Amnesty International. The issue is whether the plaintiffs have Article III standing to challenge the 2008 amendments to the Foreign Intelligence Surveillance Act. Here are a few posts of interest:
- SCOTUSblog, Argument preview: Can global wiretaps be challenged? (Lyle Denniston)
- Lawfare, Why Clapper Matters: The Future of Programmatic Surveillance (Steve Vladeck)
- Slate, Why Amnesty Should Lose at the Supreme Court (Eric Posner)
For links to all the merits and amicus briefs, head to SCOTUSblog’s case file.
PS: To everyone in Sandy’s exceptionally wide path, stay safe.
Thursday, June 28, 2012
With millions tuning in to hear the Supreme Court’s final day of decisions, many were disappointed to hear today’s ruling in…
The writ of certiorari was dismissed as improvidently granted in a one-sentence order.
Tuesday, June 19, 2012
While the nation waits with bated breath for the Supreme Court's ruling in the health care case(s), readers of this blog may be anticipating even more eagerly its decision in First American Financial Corp. v. Edwards, a case on Article III standing and this Term's oldest argued case without a decision. First American hasn't garnered as much chatter and speculation as bigger fish on the docket, but into that void comes this post from John Elwood (Volokh Conspiracy).
Monday, June 18, 2012
Jonathan Wolfson, a Fifth Circuit clerk, has published "Warring Teammates: Standing to Oppose a Co-Party's Motion for Summary Judgment," 60 Drake L. Rev. 561.
summary judgment, who has standing to oppose the motion? Obviously the plaintiff
has standing to oppose, but what about the other co-defendant? Even supposing
the co-defendant has standing if the plaintiff opposes, is that standing
contingent on the plaintiff’s opposition? Current jurisprudence in federal
courts and prior scholarship are scarce and in disagreement which leaves parties
without ground on which to base their answers. A simple answer to this quandary
might assume parties sitting on the same side of a case may not oppose one
another (in the absence of cross-claims). This article contends that sides of
the case on which parties sit are an inappropriate focal point. The focus should
instead be on which side of a particular controversy parties stand. Individuals
opposed to co-party motions should have the opportunity to oppose because the
operative criterion is adversity of position.
The minimal judicial
consensus and legal literature discussing such a scenario creates prediction
problems for litigators in multi-party litigation. The lack of certainty may
generate confusion or even conflict between co-parties seeking to advance a
common objective – winning the lawsuit – while simultaneously advancing their
own unique interests – minimizing costs and damages for a particular client. The
unique interests can create a prisoner’s dilemma in which minimizing one party’s
losses may maximize a co-party’s. This article seeks to build a theory upon
which future legal consensus on co-party standing to oppose motions might be
This article derives and applies principles from appellate
standing and the right of intervention to support permitting co-party opposition
to motions. The “aggrieved” standard of appellate standing and intervention’s
justifications of “adequate representation” and “unique perspective” inform the
otherwise minimal development of a theory permitting co-party motion opposition.
Permitting opposition to co-defendant motions by co-parties would provide
predictability and ensure parties have their voices heard on issues of interest
without sacrificing courtroom efficiency.
Monday, May 21, 2012
Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using Section 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.
The Solicitor General’s question presented also provides the following background on the issue:
Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)—referred to here as Section 1881a—allows the Attorney General and Director of National Intelligence to authorize jointly the “targeting of [non-United States] persons reasonably believed to be located outside the United States” to acquire “foreign intelligence information,” normally with the Foreign Intelligence Surveillance Court’s prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Respondents are United States persons who may not be targeted for surveillance under Section 1881a. Respondents filed this action on the day that Section 1881a was enacted, seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a.
You can find links to the Second Circuit’s opinion below and the cert-stage briefing at SCOTUSblog’s casefile.