As I had hoped would happen, the lawsuit that could do severe damage to the Affordable Care Act is finally coming under intense media scrutiny, and the results are not pretty. The latest: The Wall Street Journal is raising new questions about the standing of two of the plaintiffs in the case, after previously raising questions about the standing of two others.
The Journal reports that Rose Luck, one of the four names on the King v. Burwell lawsuit, previously listed a short-term-stay motel as her address, but is no longer there. Her address is directly relevant, the Journal says, because it was used to calculate her eligibility for subsidies, which determined that she is subject to the mandate — and, hence, can claim injury. The question is whether her standing at the time the lawsuit was filed is enough, or, as one expert puts it, if “standing is dynamic and has to be present at all times.”
Strikingly, a spokesperson for the Competitive Enterprise Institute, which is bankrolling the case, told the Journal that Ms. Luck still lives in Virginia, but declined to say where.
Meanwhile, the Journal piece also adds new detail about Brenda Levy, a 64-year-old schoolteacher who is also a plaintiff, and note in particular the bit I’ve bolded:
She said at her Richmond home Saturday that she couldn’t recall how or when she had become involved in the case and that several times that she and the other plaintiffs had been told not to talk about it. She said she had little knowledge of the case’s progress, including when it had been filed, guessing only that she had become a participant before that date….
A spokesman for Chesterfield County Public Schools, which Ms. Levy had listed as her employer in most of her recent campaign-donation filings, said her annual rate of pay was less than $10,000. A single person earning that amount wouldn’t have to pay the penalty if she went without coverage and would make too little to qualify for any tax credits. Ms. Levy didn’t answer questions about her income on Saturday and didn’t respond to an email on Monday.
If these two plaintiffs are being shielded from media scrutiny, as the Journal seems to suggest, perhaps it’s because reporters might like to know more about how they came to be on this lawsuit and what they were told about it.
Indeed, Mother Jones reported yesterday that Levy said she had no clue the lawsuit could nix health coverage for millions, that she didn’t like that idea, and that she was under the impression such an outcome could be fixed at the local level. In reality, Virginia elected not to establish an exchange because of opposition from Republicans and conservatives. There is no indication Virginia would set one up, even if it were necessary to keep subsidies flowing. In fact, some Virginia legislators support this lawsuit explicitly because it could deprive “millions” of subsidies, potentially leading to the “complete unraveling of the law.”
If proponents of this lawsuit have worked hard to create the impression that a post-lawsuit fix is a genuine possibility — to make the consequences of an anti-ACA ruling appear less dire — this may also be working on at least one of the plaintiffs.
The Journal has now raised standing questions about all four plaintiffs. The Journal reported a few days ago that the other two, including lead plaintiff David King, are eligible for medical care as veterans, and thus could escape the mandate. But there are potential inconsistencies here, too: The Journal reported that “King said he had been to a VA medical center and had a VA identification card, which typically serves as proof of VA-care enrollment.” But a lawyer for the plaintiffs subsequently said King was never enrolled.
To be clear, the standing questions almost certainly won’t be enough to disable the lawsuit. All it needs is one plaintiff with standing. And there are other people out there — on other lawsuits, and beyond — who can legitimately claim injury. This legal challenge will go forward one way or another.
But all of these new, emerging details feed the generally trumped-up, circus-like sense that is increasingly enveloping this lawsuit. And there are plenty of questions about it that remain unanswered.
* WHITE HOUSE TO ASK CONGRESS FOR WAR AUTHORIZATION: CNN reports that as early as this week, the Obama administration will ask Congress to vote to authorize combat operations against ISIS. Here’s the rub:
The proposal from the Obama administration…would approve continued military operations against the terror group in the Mideast, but request a three-year mission so that the next president would have to come back to Congress for new approval…The White House will also call for restrictions on American combat troops on the ground, but is also likely to allow some exceptions — such as for search and rescue missions, multiple congressional sources said.
Those “exceptions” are likely to stir opposition from Democrats, who will likely fear they could lead to an open-ended mission, and the administration will be under intense pressure to define the mission. Hey, it’s a good thing this discussion — and this vote — are happening a mere six months after combat operations began!
* WHITE HOUSE FACES DIFFICULT BALANCING ACT ON ISIS: Meanwhile, Politico reports that Republicans are likely to oppose any Congressional war authorization that isn’t open-ended enough:
Obama must thread the needle on a new war resolution: Democrats are antsy about anything that could lead to U.S. combat troops on the ground in Iraq and Syria, while hawkish Republicans are already pushing back against language that would restrict Obama from responding to an evolving conflict in a volatile yet critical region. How to write language that would allow ground troops in only specific circumstances, like personnel rescue, will be a major pivot point for an AUMF’s path to a House majority and 60 votes in the Senate.
This is exactly the debate we are supposed to be having. But we should have had it before combat operations began.
* PRESSURE GROWS ON NETANYAHU OVER SPEECH: The New York Times recaps the growing controversy over Benjamin Netanyahu’s planned speech to Congress, noting in particular that Democrats, who worry it will scuttle talks with Iran, are privately pressing him not to speak. Dozens of Congressional Democrats
have privately implored Ron Dermer, the Israeli ambassador who helped arrange the speech, to prevail on Mr. Netanyahu to agree to a “face-saving way to still come and speak” without the trappings of a joint meeting, said a senior Democratic congressional aide, speaking on the condition of anonymity because he was not authorized to detail the talks.
Too bad so few Democrats will do this publicly. If more did, it might make the difference. Meanwhile, the Times reports that a Netanyahu spokesman is refusing to comment on reports that he is eying a change in plans, so perhaps there’s some movement.
* BUT REPUBLICANS WANT SPEECH TO GO FORWARD: Meanwhile, you should read the Post’s write-up of the standoff over the Netanyahu speech. This is notable:
Republican aides said they have seen no political fallout for GOP leaders here, and as long as Netanyahu felt his home-front politics would not be harmed by the speech, the decision was to move full-speed ahead…For rank-and-file House Republicans, the speech has not created political problems in their districts.
Of course not! Nothing creates problems for Republicans in their districts except things that get conservatives angry. As an aside: Note how many Republicans in the article are quoted on record defending the speech, and how few Democrats are quoted criticizing it.
* ABOUT THAT DEMOCRATIC ‘BOYCOTT’ OF THE SPEECH: According to the Hill’s whip list, all of 14 Democratic members of Congress won’t be attending the speech, and some of them are explicitly saying this isn’t an organized boycott. Meanwhile, far more Democrats have confirmed they will attend.
* SCOTUS RULING AGAINST ACA COULD BECOME BIG ISSUE IN 2016: Brian Beutler has a good piece gaming out what will happen if the Supreme Court guts subsidies in three dozen states:
The case itself, which will be decided in late June, is an unexploded ordnance lying in the middle of the 2016 presidential campaign field. An adverse King ruling wouldn’t just introduce familiar, crisis-driven legislative politics. It would likely become the defining issue of the Republican primary and general election. It would leave Republicans strategically and substantively divided over how to contain the fallout. And it would transform Obamacare as an issue from a modest liability for the Democratic candidate, into a factor that unifies the entire party against Republicans and the Supreme Court.
Republicans will be under intense pressure from the base to let the law collapse, but there will also be intense pressure from people with big megaphones (read: the White House) for a fix. Also see Sahil Kapur on how the law’s supporters are cautiously optimistic that their arguments could prove persuasive to Anthony Kennedy.
* AND GOP MAXIMUM DEPORATIONS SCHEME WOULD COST A LOT OF MONEY: With Republicans uncertain how to proceed in the face of their inability to pass anything that funds Homeland Security while rolling back Obama’s executive actions on deportations, Politico’s David Rogers makes a key point:
How much would it cost for the government to deport all the undocumented workers who stand to benefit from Obama’s most recent executive order? That could be upward of $20 billion to $25 billion, according to the best estimates collected by POLITICO.
It’s almost as if the policy details are beside the point entirely!