//  6/6/18  //  Commentary

When you bring a federal lawsuit, you have to show that you’ve suffered an injury that the defendant has caused and that, if you prevail, the court can enter relief that will redress that injury. In assessing the sufficiency of your claim for standing, the court—in principle, at least—is supposed to assume that you’ll prevail on the merits of your legal claim.

So far, so good. But what happens when the claimed injury arises from a statute, only one small portion of which is challenged as unconstitutional? To make it concrete, imagine that a plaintiff thinks it’s unconstitutional to include a checkbox on an income tax form asking whether the taxpayer wants to pay $3 to support publicly financed presidential election campaigns. The inclusion of the checkbox doesn’t injure the plaintiff—she can just say no.

What if her theory, though, is that the checkbox’s unconstitutionality renders the entire Internal Revenue Code unconstitutional? If that’s the claim, her injury would stem not from the checkbox, but from the very fact that she has to pay taxes at all. And a court that accepts her legal argument would redress that injury.

The legal argument would be meritless: severability doctrine may be mushy and contested, but there’s no way a constitutional defect that trivial would yield a remedy that broad. But isn’t a court supposed to assume the validity of a plaintiff’s legal claim for purposes of assessing standing? If so, isn’t the right answer that the plaintiff has standing to raise her legal challenge to the checkbox, it’s just that she loses on the merits?

That can’t be right, however. If it were, then any plaintiff could challenge any provision in a statute, even if that provision didn’t injure them at all, so long as the plaintiff paired the challenge with a request that the entire statute (which does injure them) should be stricken from the books. To return to our example, wouldn’t a court be rendering an advisory opinion if it resolved the constitutionality of the $3 checkbox? And wouldn’t that overstep the limits of the court’s Article III power?

I bring all this up because of the pending litigation from a consortium of states seeking, yet again, to invalidate the Affordable Care Act. The two individual plaintiffs that they’ve enlisted to support their standing have submitted affidavits saying that they’re healthy, self-employed, and earn more than 400% of the poverty line.

Accepting those claims as true, the two plaintiffs have sustained a pocketbook injury on account of the ACA. That’s because the ACA requires insurance sold on the individual market to be made available to the poor and the sick alike on equal terms. If a court declared the ACA unconstitutional, these two plaintiffs could probably buy comparable, risk-rated insurance for much less.

But their specific legal argument isn’t about the ACA as a whole. Rather, the plaintiffs believe that the individual mandate is unconstitutional because (a) the Supreme Court only upheld the mandate as an exercise of Congress’s taxing power, (b) the tax penalty has now been repealed, and (c) the penalty-free “mandate” that’s now on the books is unconstitutional. Then—and here’s the kicker—the plaintiffs argue that the individual mandate can’t be severed from the rest of the ACA, meaning that the entire statute has to be wiped from the books.

That’s analogous to saying that the invalidity of the $3 checkbox should render the entire Internal Revenue Code unconstitutional. It’s a laughable argument, but that’s the claim. (The plaintiffs insist that this penalty-free mandate causes them injury because “I value compliance with my legal obligations, and believe that following the law is the right thing to do.” That’s garbage: the Supreme Court has already held that they have no legal obligation to buy insurance. The plaintiffs’ injury arises from ACA writ large, not from the mandate.)

So what’s a court to do? A court could assume the validity of the plaintiffs’ argument about the invalidity of the entire ACA, as silly as that argument is, and say that they have standing. But the court would then risk issuing an advisory opinion about the constitutionality of the individual mandate. Alternatively, a court could deny plaintiffs’ standing by rejecting their remedial argument, at the risk of issuing an advisory opinion about severability. Either way, the court would be violating Article III. Right?

I’ve got a couple of thoughts about how to square this circle; I'll share them in the coming days. But I think it’s a genuine puzzle, and not one with a tidy answer.


The Court’s Border Wall Fiasco

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The Supreme Court’s decision to stay the injunction against the President’s construction of the border wall made no sense. It is also part of a troubling trend of restricting remedies against unlawful government action.

Leah Litman

Michigan Law School

Kyle Skinner

Harvard Law School

Versus Trump: Straight to the Supremes (We're Back!)

8/29/19  //  Commentary

This week on Versus Trump, Jason and Charlie are back from a hiatus, and they discuss why the Trump Administration has been going to straight to the Supreme Court with emergency requests so frequently. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Expedited Removals, Jeopardized Due Process

8/26/19  //  Commentary

The Trump administration’s revamped expedited removal system unsettles the rulings that upheld the expedited removal system against constitutional challenges.

Kyle Skinner

Harvard Law School

Leah Litman

Michigan Law School