A recent post by Gerard Magliocca at Concurring Opinions brought to mind an interesting aspect of the arguments of counsel leading up to the Supreme Court’s landmark decision in Cohens v. Virginia (1821). Magliocca’s post,”Titles of Nobility Awarded by States,” considers whether Nebraska’s designation of him as an Admiral in Nebraska’s Navy violates the constitutional prohibition in Article I, Section 10, cl. 1 that “No State shall . . . grant any title of nobility.” Interesting question!
Magliocca did link his analysis to any case law deciding challenges to various titles of nobility. Maybe there are none. I have not run a comprehensive search for them, but I’m not aware of any such cases. If there are any, I wonder how they deal with the justiciability problem mentioned in Philip Barbour’s argument for Virginia in Cohens v. Virginia.
Barbour invoked the prohibition on state grants of titles of nobility (which corresponds to a similar prohibition placed on the federal government) in a portion of his argument explaining that there are some questions that may arise under the Constitution but never give rise to a justiciable case:
[T]here are questions arising, or which might arise under the Constitution, which the forms of the Constitution do not submit to judicial cognizance. Suppose, for example, a State were to grant a title of nobility, how could that be brought before a judicial tribunal, so as to render any effectual judgment? If it were an office of profit, it might, perhaps, be said, an information in the nature of a quo warranto would lie; but I ask whether that would lie, in the case which I have stated, or whether an effectual judgment could be rendered? It is a title, a name which would still remain, after your judgment had denounced it as unconstitutional. Where a quo warranto lies, in relation to an office, the judgment of ouster is followed by practical and effectual consequences.
It may be anachronistic to use the label of “non-justiciable” to describe Barbour’s argument, but that is probably the best translation into our way of framing these issues now. Barbour seems to be saying that the closest writ–quo warranto–would not lie. No writ, no remedy; therefore no case. We might put it in different terms, if only because standing doctrine so dominates our way of thinking about justiciability. We might say that the challenger (whoever that might be) would lack standing because the injury could not be remedied. No “effectual judgment” could be rendered, in Barbour’s words, because “[i]t is a title, a name which would still remain, after [the court’s] judgment had denounced it as unconstitutional.”
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Posted in Law, tagged 5000A, ACA, Affordable Care Act, Article III, Ginsburg, healthcare, healthcare reform, justiciability, mootness, standing on January 7, 2012|
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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Posted in Law, tagged Eleventh Circuit, HCR, healthcare, healthcare reform, individual mandate, justiciability, severability, standing, state standing on September 8, 2011|
If the Fourth Circuit’s interpretation of the Anti-Injunction Act were to be adopted by the Supreme Court, that would knock out all the private party challenges to the individual mandate. That would return attention to the question of whether the states’ challenge to the individual mandate is justiciable.
The Virginia approach of relying on a conflicting state statute has all sorts of problems, including those identified by the Fourth Circuit in Virginia v. Sebelius.
The states in Florida v. HHS have developed additional theories of standing that do not require conflicting state statutes. They have done so because necessity is the mother of invention; the necessity arises from the simple fact that most of the state plaintiffs seeking to challenge the individual mandate do not have an anti-mandate state law like Virginia’s Health Care Freedom Act.
I have argued in an amicus curiae brief in the Eleventh Circuit and in The Ghost that Slayed the Mandate that Florida’s alternative theories do not succeed in establishing the justiciability of the states’ challenge to the individual mandate. The Eleventh Circuit said it did not need to address state standing. The issue was “purely academic,” said they, because at least one private plaintiff had standing and one is enough. I criticized that reasoning in an earlier post that focused on the relationship between inseverability and standing.
I can now add another criticism: It may very well be that there is no subject-matter jurisdiction over the private plaintiffs’ challenges because of the Anti-Injunction Act. If the AIA blocks the private plaintiff challenges, then the only way to reach the merits is by adjudicating the states’ challenge to the individual mandate. The states can likely get around the AIA with South Carolina v. Regan, 465 U.S. 367 (1984). Consequently, the jurisdictional action going forward should focus not only on the AIA but also on the states’ theories for why they can challenge a statutory provision that imposes no obligation on them.
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