Will the Court Duck the ACA? Should It?
In light of the Obama administration’s decision not to seek an en banc rehearing of the 11th Circuit’s ruling that the ACA is unconstitutional, there has been some good stuff written about the possibility that the Supreme Court will duck the issue with a jurisdictional ruling.
I have a piece up at the Prospect that makes a couple points about this I haven’t see elsewhere yet. First, the fact that the Roberts Court has limited standing in other areas is neither here nor there in terms of whether they will do it here. Supreme Court majorities limit standing to litigants whose claims they favor approximately never. And, second, for the Supreme Court to duck the issue now and then issue a ruling after the election would be the worst of all worlds. While paeans to the passive virtues have become increasingly common, I prefer transparency myself. Anyway, click over for the whole argument.
9th Circuit Judge Fletcher teaches in his Federal Courts class at Berkeley (assuming he still teaches it), that the whole standing doctrine is “made up” by the Court in the past 30 years or so. Justice Thomas gives out (or at least he used to) $500 awards to clerks who can find a standing issue in a case so that it can be dismissed (at least according to John Yoo, circa 2000).
Good times.
Should it? Yeah, in any rational world.
Will it? Hey, this is the Roberts/Scalia/Alito/Thomas “Freakin’ Constitution means what we say it means, to get the desired result” court, isn’t it?
Should it? Yeah, in any rational world.
Actually, no. In a rational world they would decide the case on the merits and say that the ACA is obviously constitutional.
Well, going down that rabbit hole, in a rational world they wouldn’t be hearing the case at all, because humpty-ump state attorneys general wouldn’t have wasted time and taxpayer money challenging the law.
Of course since there is no difference between Republicans and Democrats it doesn’t matter when the court rules on the ACA.
/snark
When the Supreme Court declines to hear a case based on lack of standing, it is almost always because they are unsympathetic to the substance of the constitutional claims being pursued.
I would add that dismissing a case on standing also allows the court to dispose of claims without addressing their merits. Pretty handy.
the Prospect is crawling with talk show bred wingnuts!