The ACA Troofer Clown Car

CANNON X: “I assure you, Mr. King, that Ted Kennedy, Nancy Pelosi, and President Gruber have all told me that they did not want any tax credits on the federally established exchanges. Oh, and the real inflation rate is 50%. Just agree to file the lawsuit and we’ll get you a copy of Obama’s Kenyan birth certificate.”

Thanks to the investigations into the plaintiffs in King v. Burwell, the question of standing is getting a lot of attention. I think that the Court should interpret standing broadly, so based on what I know now I wouldn’t embrace the argument that not one of the plaintiffs has standing. Roberts has at times advanced a much narrower view, but will certainly be willing to find standing if he wants to reach the merits. He’ll only find a lack of standing if he’s ambivalent about how to resolve the case and wants to put it off, while further advancing his views on standing doctrine in the bargain.  It would be somewhat good news in the short-term if Roberts were to use standing to duck the case, not only because it’s better than a reversal but because the more people sign up on the federally established exchanges the harder it will be for Roberts to pull the trigger on them if he doesn’t feel strong enough to side with the troofers now. I don’t think it’s likely at all that Roberts would do this, but stranger things have etc.

I agree with Beutler that the greater significance of the desperate search for plaintiffs is metaphorical. Decent people are generally unwilling to strip millions of people of their health insurance, using a nutty legal theory that at best could be cleaned up to sound arcane, to further less-than-trivial liberty interests. It’s instructive that the troofers weren’t able to find plaintiffs strong enough to prevent even the possibility of getting dismissed on standing grounds.

And the Court should also heed the troofer-in-chief. He’s entirely candid that the Republican offer to the uninsured is “nothing” — if the five Republicans on the Court side with them, the resulting blood is fully on their hands as well.