On Monday, January 31, 2011, Judge Roger Vinson issued his ruling declaring Obamacare unconstitutional. States rights federalists (an odd juxtaposition) around the country celebrated.
In Utah, members of the state legislature gathered to celebrate their triumph and publicly vindicate the federalism message bill they say made it all possible. At a press conference on February 2, 2011, Carl Wimmer (@CarlWimmer) and other supporters of the Patrick Henry / Wimmer for Congress Caucus trumpeted the fact that H.B. 67, legislation passed by the Utah Legislature during its 2010 general session entitled “Health System Amendments,” conferred the judicial standing on Utah that was necessary to challenge the law. ”Not bad for a worthless message bill,” Representative Wimmer said. This grandstanding struck me as quite amusing, because the truth of the matter is that H.B. 67 played no critical role at all . . . aside from making the opinion-writing easier for Judge Vinson’s clerk. There was never any real question of the challenge being dismissed for lack of standing, or, if there was, the challenge wasn’t saved by Utah H.B. 67.
At this point, some of my readers may be wondering “what in the world is this standing thing”? Don’t be embarrassed–it’s a good question to ask. In fact, many lawyers would do well to ask it more often themselves. I’ll give you my understanding of the rule in brief–in the federal context, given that these challenges to the healthcare legislation were brought in federal court.
Article 3 Standing in the Federal Courts
Standing derives from the principle set forth in Article III of the United States Constitution that the jurisdiction of the federal courts is limited to cases and controversies. The United States Supreme Court has interpreted this to mean that, in order to bring a case in federal court, there must be an actual controversy between the plaintiff and the defendant, such that: (1) the plaintiff has suffered an actual injury or is likely to suffer an imminent injury; (2) the actions of the defendant have caused or will cause the injury; and (3) the injury can be redressed by a ruling from the court. Unless these minimum three requirements are met, the plaintiff’s case will be dismissed from court on the ground that, if the federal courts were to entertain it, they would impermissibly exercise jurisdiction in violation of Article III.
Although the concept of standing is primarily rooted in Article III of the Constitution, it also emanates from the principle of separation of powers. The idea is that the roles of the executive, legislative, and executive branch are different and should remain differentiated. If the federal courts (think U.S. Supreme Court) were to start issuing advisory rulings about certain statutes in the abstract, they start to look much less like bodies that adjudicate the rights of individuals in specific cases (the traditional role of courts) and much more like a legislature, which is tasked with making laws of general applicability.
Now, someone should almost certainly stop me here and say, “Wait, don’t the federal courts make rules of general applicability all the time–like, um, when they strike down or interpret a federal statute?” Certainly. But at least, with the requirement of standing, they do so in the context of a concrete and actual dispute between individuals (or individual entities). Ultimately, the requirement of standing serves as a gatekeeper. It says, before you sue, we want to make sure you’ve actually been injured (or are threatened with real injury) so that you have the proper incentive to develop the issues before the court and you don’t encourage the courts to ursurp the legislative role.
H.B. 67 and the Obamacare Challenge
With that inadequate explanation out of the way, let’s return to the original question: Did states really need to pass message bills in order to get the healthcare challenge before the federal courts? Clearly not. In fact, in his opinion, Judge Vinson, prior to reaching the question of standing of the individual states, addressed to question of whether two individual persons that were also joined in the suit had standing to sue. The good judge declared that they did, based on their sworn allegations that because they would be required to purchase health insurance when the individual mandate went into effect in 2014, they were now being forced to re-evaluate their current financial arrangements and make the changes necessary to prepare for the mandated expense.
Bingo!–Actual and imminent injury (see, it doesn’t have to be anything big). That was all the suit needed to proceed. Once a plaintiff has standing, the suit itself can’t be dismissed for lack of standing. No message bills necessary.
In any event, the states themselves likely had standing under the same principle as the individual plaintiffs. In preparation for the implementation of Obamacare’s 2014 mandate the states would undoubtedly also be required to do some investigation and to take steps to ensure compliance. But Judge Vinson didn’t feel the need to discuss this possibility because H.B. 67 made it easy for him. (Addition on March 26, 2012: The appellate panel of the 11th Circuit that heard the case after Judge Vinson declined to address the question of state standing because individual standing existed.)
So, ultimately, even though Judge Vinson’s shout-out to H.B. 67 provided the opportunity for a nice victory lap for Carl Wimmer et al., but there’s still no real substance to it. It remains just a worthless message bill.