◼ New questions have surfaced over whether the plaintiffs in a key Obamacare challenge before the Supreme Court were legitimately hurt by the healthcare law, a controversy experts say could derail the case scheduled for oral arguments next week. - Robert King/Washington Examiner
Standing has derailed other high-profile cases, most recently the 2013 challenge to California’s Proposition 8 same-sex marriage ban. The court heard oral arguments in the case but declined to make a decision because private parties didn’t have standing to defend a state ballot measure. The decision meant a lower court’s ruling invalidating the ban stood, and same-sex marriages were allowed in the state.
Since that case, the court has become more diligent about reviewing standing in cases it selects, McElroy said.
Two lower courts found the plaintiffs in King v. Burwell had standing and the Justice Department didn’t contest that on appeal, said Jost, who teaches at Washington & Lee University. The libertarian think tank Competitive Enterprise Institute, which is bankrolling the case, echoed those arguments.
However, the lower court ruling was based on affidavits from the plaintiffs that the Wall Street Journal story appears to contradict, said Robert Weiner, an attorney with Arnold and Porter. For example, affidavits for King and Hurst said neither was eligible for government programs — but they were eligible as veterans. The plaintiffs should address the potential discrepancy, Weiner said.
The Obama administration didn’t raise the issue when the Supreme Court accepted the case in November, Weiner added.
