Justice Ruth Bader Ginsburg kicked off Wednesday’s oral arguments on the validity of Obamacare’s tax credits on the federal HealthCare.gov website with a question about whether there was even a case for the Court to consider.
She noted that standing questions had been raised about each of the four plaintiffs in King v. Burwell, cutting into plaintiff attorney Michael Carvin’s argument just as he started speaking.
But when Solicitor General Donald Verrilli took his turn at the lectern, he appeared to concede the issue—which would in theory get the case tossed if none of the plaintiffs had standing to sue. The plaintiffs argue that by allowing tax credits on HealthCare.gov, the administration has subjected them to the individual-mandate penalty.
Verrilli said he was “willing to accept” that at least one of the plaintiffs had standing if Carvin said they did. He preemptively addressed the standing issue, raised after reports by Politico, Mother Jones and other news outlets in the last month, because Ginsburg had brought it up at the start of Wednesday’s hearing.
A plaintiff “has to have a concrete stake in the question,” Ginsburg said, interjecting almost as soon as Carvin began his argument. She noted that two of the plaintiffs had served in the military, one would soon turn 65 and be eligible for Medicare, and the fourth could qualify for a hardship exemption and not be required to pay the individual-mandate penalty.
Carvin countered that the lower courts had not raised a standing issue.
“But the Court has an obligation to look into on its own,” Ginsburg said. Carvin asserted that at least one of the plaintiffs did have standing before Ginsburg allowed him to move on to the merits of the case.
Verrilli proactively addressed the standing question at the start of his argument. He said that the question centered on “whether any of the plaintiffs is liable” to pay the mandate penalty and noted that when the case began in 2013, standing was based in part of projections about the plaintiffs’ income in 2014 and beyond.
As to whether they still had standing, “that’s information that is not in the government’s possession,” Verrilli said.
But after some pressing from Ginsburg, Justice Sonia Sotomayor, and Chief Justice John Roberts, Verrilli appeared to concede the standing issue—or at least he didn’t continue to pursue it as a way to get the case dismissed.
“I’m willing to accept from the absence of a representation [from the plaintiffs that they have no standing] that there is a case for controversy,” Verrilli said.
As many as 8 million people in 30-plus would lose tax credits if the Supreme Court ruled to disallow them on HealthCare.gov.