Ruth Bader Ginsburg Grills Anti-Obamacare Attorney For Lack Of Standing

Yesterday the Supreme Court heard oral arguments into the monumental case King v. Burwell that could completely escrivate the Affordable Care Act (Obamacare). The plaintiffs are arguing that by allowing the tax-credits to continue on Healthcare.gov, the administration has subjected them to the individual-mandate penalty. The four liberal Justices, Rut Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor are almost guaranteed to side with the healthcare law while four conservative Justices, Antonin Scalia, Clarence Thomas and Samuel Alito are almost guaranteed to side against it. Only Chief Justice John Roberts and possibly Anthony Kennedy, both conservative, are unpredictable. The case almost exclusively lies within his hands.

Hopefully his liberal colleague, Ruth Bader Ginsburg, can sway him.

During oral arguments regarding the case, Justice Ginsburg immediately grilled the attorney who represented the anti-Obamacare individuals, Michael A. Carvin, on whether the petitioners had standing. Ginsburg pointed out that in order for the case to be legitimate, the plaintiff(s) “has to have a concrete stake in the question.”

Noting that two of the plaintiffs had served in the military and one will soon turn 65 and qualify for Medicare, and the last would receive a hardship exemption, Ginsburg expressed doubts that the petitioners had real standing. When Carvin tried to counter with the fact that the lower courts had no raised a standing issue, Ginsburg said that “the Court has an obligation to look into on its own.”

Here’s an excerpt of the exchange:

Carvin: Mr. Chief Justice, and may it please the Court: This is a straightforward case of statutory construction where the plain language of the statute dictates the result.

Ginsburg: Mr. Carvin, will you please back up, because before we get to a question of statutory construction, as you know, each plaintiff, or at least one plaintiff, has to have a concrete stake in these questions. They can’t put them as ideological questions. and we have – as four plaintiffs. As two of them, there is a declaration stating “I am not eligible for health insurance from the government,” but there is a question of whether they are veterans eligible for coverage as veterans.

Carvin: Yes one of those is Mr. Hurst who would have to… spend $750 of his own money as a [veteran] — Because of the IRS rule. Mr. Hurst was a veteran for 10 months in 1970.  He is not eligible for any veterans service because if you’ve served such a short ­­ health services if you’ve served such a short —

Ginsburg: I’ll ask the government if they agree that —

Carvin: And I should point out that the government has never disputed this, and I’d also like —

Ginsburg: But the Court has an obligation to look into it on its own.

Carvin: That’s true, but of course there has been fact­finding by lower courts in an adversarial system.  I don’t believe the Court does its own —

Ginsburg: I don’t think it was ever brought up in the lower court that these ­­ these two people were veterans.

Ginsburg then pressed on the issue of the 65-year-old woman who, once eligible for Medicaid in June, would make her exempt from Obamacare penalties. Ginsburg said, regarding her birthday when she will be exempt, “That takes care of 2015.”

According to Mother Jones:

According to legal filings in the case, two of the plaintiffs were likely not adversely affected by Obamacare because they could claim an exemption from the law’s requirement to purchase health insurance due to their low income levels and high health care costs. The other two plaintiffs, Doug Hurst and Brenda Levy, would have benefited substantially from the Affordable Care Act had they obtained insurance through an Obamacare health exchange. (Levy said she was paying $1,500 a month for non-Obamacare insurance, which she could have bought on the federal health care exchange for $148 a month. Hurst, according to bankruptcy filings, had been paying more than $600 a month for his insurance in 2010. The ACA would have provided him insurance for $62 a month.)

It appears that Justice Ginsburg’s suspicions were right. There really is no standing and this might be on “ideological questions.” As of right now, it’s up in the air.

Image via Ed Demeria and Medill News Service