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Posts Tagged ‘Article III’

In the previous post, I asked whether a member of an Indian tribe has standing to bring a constitutional challenge to the minimum coverage provision in § 5000A of the tax code (aka the “individual mandate in Obamacare”). A member of an Indian tribe is in an unusual position under § 5000A. She is obligated to have minimum essential coverage, but she is exempt from the penalty for non-compliance. See 26 U.S.C. § 5000A(e)(3). Assuming that the penalty for non-compliance is the only legal consequence for not having minimum essential coverage, I do not see how she would have standing to bring a constitutional challenge to the requirement that she have minimum essential coverage.

If that is right, then what about Mary Brown? She is one of the private plaintiffs in the constitutional challenge to § 5000A to be decided by the Supreme Court. Ms. Brown’s lawyers have notified the Supreme Court that she has filed a petition for bankruptcy. Although there is not enough public information to make a conclusive determination, Ms. Brown’s financial situation probably qualifies her for a penalty exemption in § 5000A(e). If Ms. Brown does fall within one of the penalty exemptions, are there any arguments to support her standing that differ from those available to the member of an Indian tribe?

One that comes to mind is that financial circumstances are subject to change, whereas tribe membership is stable throughout one’s life. If a person’s qualification for exemption varies from month to month, then that person comes in and out of the legal crosshairs of someone with whom one can have a justiciable controversy. This difference is relevant, because someone permanently exempt has no legal adversity with anyone that would give rise to a justiciable controversy. The sometimes-exempt person, by contrast, sometimes does have such legal adversity.

The justiciability problem posed by a sometimes-exempt person is best thought of as a mootness problem rather than a standing problem. The general rule is that standing is assessed as of the time of filing. If the sometimes-exempt person was not exempt as of the time of filing, and the person otherwise had standing, then a change giving rise to that person’s exemption presents a problem of mootness. That doctrine is more flexible than standing. In Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), for example, Justice Ginsburg’s opinion for the Court expressed openness to an “argument from sunk costs.”

That is as far as I’ve taken the analysis for now. As always, I welcome suggestions, corrections, and other comments.

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If the government imposes a legal duty on you, but provides no sanctions for non-compliance (and there are no collateral legal consequences of any sort for non-compliance), do you have standing to challenge the imposition of the duty? That is one question posed by Section 5000A of the tax code, the provision in the Affordable Care Act more popularly known as the individual mandate.

Section 5000A requires “applicable individuals” to have “minimum essential coverage,” and it imposes a penalty on some “applicable individuals” who do not have “minimum essential coverage.” That is, there are some people who are required to have insurance but who are exempt from the penalty for not having it Members of Indian tribes, among others, are beneficiaries of this exemption.

Suppose a member of an Indian tribe wanted to sue the federal government to have the insurance requirement declared unconstitutional. Would he have standing to do so? I have trouble seeing how he would. It is not enough to be subject to allegedly illegal conduct. That conduct must cause injury. If non-compliance with the insurance requirement has no consequences for a member of an Indian tribe, then it does not cause any injury. Perhaps the would-be plaintiff can argue that he will buy insurance to comply with the requirement if it is constitutional because he wants to be in compliance with the law, but he will not buy the insurance if the requirement is unconstitutional. But that cannot be enough, because the “injury” of being forced to buy insurance is entirely self-inflicted; nobody is forcing the would-be plaintiff to do anything.

A better way of thinking about the “case” or “controversy” problem with a challenge by a member of an Indian tribe to the minimum essential coverage provision is in advisory opinion terms. The request for a constitutional ruling is purely advisory because there is no proper defendant who can be brought before the court and bound by a judgment. Nobody has anything to enforce against the would-be plaintiff, who simply seeks advice about whether the insurance requirement is constitutional.

This analysis would require alteration if there were some collateral legal consequences for non-compliance with the insurance requirement. But if the penalty in § 5000A is the only means by which the insurance requirement has any legal bite, there appears to be no Article III “case” that a member of an Indian tribe can bring offensively to challenge the insurance requirement.

I cannot think of the closest analogue to this situation, and cheerfully invite suggestions, corrections, contrary arguments, and so on.

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