Late last Friday, the
Wall Street Journal published a report detailing how the lead plaintiff in the
King v. Burwell challenge to Obamacare
might not actually have standing to sue, since he's eligible for free health care from the Department of Veterans Affairs. The report highlights just how convoluted this case is, beginning with the premise that the IRS misinterpreted the law to make subsidies available to everybody. The existence of those subsidies, plaintiffs say, is what harms them because it makes insurance affordable and it subjects them to the law's mandate to have health insurance. Except, as, Stephanie Mencimer reports at
Mother Jones it doesn't in at least two of the plaintiffs' cases. In her deep dive into the the case these people are making, she finds that all seem to have been chosen more for their anti-Obama political leanings than the fact that they were harmed by the law. In fact, none of them really are harmed by the law, and one—64 year old Brenda Levy—is aghast at the idea that she might be partially responsible for millions losing health insurance.
[S]he said she didn't recall exactly how she had been selected as a plaintiff in the case to begin with. "I don't know how I got on this case. I haven't done a single thing legally. I'm gonna have to ask them how they found me," she told me. She thought lawyers involved with the case may have contacted her at some point and she had decided to "help 'em out." […]
When I asked her if she realized that her lawsuit could potentially wipe out health coverage for millions, she looked befuddled. "I don't want things to be more difficult for people," she said. "I don't like the idea of throwing people off their health insurance."
Levy doesn't like Obamacare, however, insisting that it "gives the government control over Americans' medical treatment and that the law has spurred the IRS to expand." Levy's opposition is mild compared to David King's, the veteran who has a penchant for attacking the president (saying he's an "idiot" and a "joke" and a Muslim) and who wants to smash Obamacare because he thinks all the people who benefit from it are on welfare and are "probably not paying for it anyway." Fifty-six year old Rose Luck, another plaintiff, wouldn't talk to Mencimer but her Facebook page says plenty about her political leanings. Obama is the "anti-Christ," she's written, who "got his Muslim people to vote for him." The fourth, Doug Hurst, is 63. While he didn't speak to Mencimer, his wife Pam did briefly, telling her to leave them alone. Pam Hurst seems to be a very big supporter of Texas Sen. Ted Cruz on her Facebook page, and has railed against Obamacare.
Political leanings aside, the actual case any of these plaintiffs can make against Obamacare because they personally are harmed by it is very, very slim. King could get coverage through the VA. But in addition to that, Mencimer found by looking at the legal filings in the case, he qualifies for the hardship exemption under the law—he would not be forced to buy insurance or pay a fine for not doing it because the cost of subsidized insurance he could buy is more than 8 percent of his income. That exemption also applies to Luck. Levy, the one who didn't realize what this suit could mean, pays for insurance now, and pays a lot because of health problems—" two craniotomies and two hip replacements." She pays $1,500 a month, but could pay as little as $148 a month through Obamacare. How she's harmed by the law—since she's carrying insurance anyway, and wouldn't be forced to by the law—is not at all clear. As for the Hursts, who declared bankruptcy in 2010 and who had massive healthcare bills at the time, they too could save huge amounts under Obamacare, paying as little as $62.49 a month.
Just two, Levy and Hurst, can plausibly make a case that they have standing, which is enough for it to go forward. But it's still pretty weak sauce, enough so that the plaintiffs presented were one of the reasons the 4th Circuit Court of Appeals booted this case.
Judge Andre Davis repeatedly expressed skepticism about the plaintiffs and quizzed the lead lawyer on the case, Michael Carvin, on why he hadn't brought the suit as a class action—the traditional vehicle for public interest litigation. Davis suggested that the reason was that "nobody wants what you're after here!" The appellate court ruled unanimously against the plaintiffs, with Davis writing in a concurring opinion that Carvin's case turned on "a tortured, nonsensical construction of a federal statute whose manifest purpose…could not be more clear."
They did, however, make a strong enough case for four of the Supreme Court justices to take it on, and open themselves up to making the biggest partisan-driven political decision since
Bush v. Gore.