//  12/18/18  //  Commentary

I’ve got a piece at The Atlantic this morning arguing that Judge O’Connor was wrong—and obviously so—to hear the Texas lawsuit at all. The states don’t have standing to challenge a mandate that doesn’t apply to them. And the two Texas consultants they recruited as plaintiffs don’t have standing either. Here’s the key argument:

Nantz and Hurley say they feel “obligated” to buy insurance because they “believe that following the law is the right thing to do.” But, again, the law doesn’t obligate them to do anything. It’s all in their heads. And, as the Supreme Court has held, plaintiffs can’t “manufacture standing merely by inflicting harm on themselves.”

O’Connor rejected that line of argument, saying that it “begs a leading question in the case by assuming that the Plaintiffs need not comply” with the individual mandate. But even assuming that the Texans are right that they’re technically obligated to buy insurance, being subject to an unenforceable legal command doesn’t count as an injury. The Supreme Court has flatly held that “a plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.”

So it’s not enough that you feel compelled; you must actually be compelled. In one D.C. Circuit case, for example, a family planning group challenged a provision that prohibited recipients of government grants from discriminating against individuals that refuse to provide abortions. The family planning group said it was laboring under an unconstitutional obligation. That’s not enough for standing, said the court, because there was no reason to think that “good-faith conduct violating a grant condition would trigger an immediate funding cut-off.” No risk of enforcement, no standing. Similar cases led to similar outcomes.

One significant implication: it matters that O’Connor hasn’t (yet) found that the red states have standing to sue. If they lack standing, he can’t enjoin the Trump administration from enforcing the law as to them: that’d be giving relief to plaintiffs who aren’t properly before the court.

Now, some courts have stretched the scope of their injunctive authority to afford relief to non-parties. But that practice is controversial and embattled, as I explained in a different article for The Atlantic that I wrote with Sam Bray. Unless and until O’Connor holds that the red states have standing to sue—and I don’t see how they do—they can’t get an injunction. O’Connor has tied his own hands.

@nicholas_bagley


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