Health Care

Ruth Bader Ginsburg Attacks Standing of Anti-Obamacare Plaintiffs

Oral arguments in King v. Burwell start out in partisan fashion.

Supreme Court Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan listen as Pres. Barack Obama delivers the State of the Union address before a joint session of Congress on January 28, 2014 at the U.S. Capitol in Washington.
National Journal
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Dylan Scott
March 4, 2015, 6:21 a.m.

Justice Ruth Bader Gins­burg kicked off Wed­nes­day’s or­al ar­gu­ments on the valid­ity of Obama­care’s tax cred­its on the fed­er­al Health­ 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 Health­, the ad­min­is­tra­tion has sub­jec­ted them to the in­di­vidu­al-man­date pen­alty.

(RE­LATED: Ant­on­in Scalia: Won’t Con­gress Fix Obama­care?)

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.

(RE­LATED: Why the Obama­care Case Drives Wash­ing­ton Crazy)

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 Health­


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