New Questions Raised Over King v. Burwell Plaintiffs’ Standing
There are new questions as to the standing of a plaintiff in the upcoming Supreme Court case King v. Burwell, which challenges the legality of subsidies in the federal exchange, the Wall Street Journal reports (Radnofsky/Kendall, Wall Street Journal, 2/9).
Background on the Case
The high court will hear oral arguments on the case in March and likely will release a decision by the end of June. The plaintiffs argue that the Affordable Care Act's subsidies harm them by making them subject to the law's individual mandate and that without the subsidies they would be able to receive an affordability exemption (California Healthline, 1/28).
According to the Journal, Rose Luck -- one of the case's four plaintiffs -- used an address at a motel in Virginia both to describe her residency and to receive premium and subsidy estimates for federal exchange coverage. Luck no longer lives at the motel, and residents are only allowed to stay there for a maximum of 28 days, a motel receptionist said Sunday.
Annie Dwyer, a spokesperson for the Competitive Enterprise Institute, which is funding and instigated the suit, said that CEI knew Luck had used the address when filing the suit in fall 2013 and knew she no longer lived there. Dwyer said Luck still lives in Virginia (Wall Street Journal, 2/9).
The new potential issues come as some have also recently questioned the standing of David King, the case's lead plaintiff, because he likely qualifies for veterans' health benefits. Another of the four plaintiffs in the case, Douglas Hurst, also served in the military (Haberkorn, Politico, 2/7).
Meanwhile, there is also a new question of whether another plaintiff in the case, Brenda Levy, would be subject to the individual mandate because of her income in 2014. In court documents, Levy listed her projected 2014 income as $43,000 for the purpose of estimating premiums and subsidies. She said in the court documents that she worked as a substitute teacher and did not list additional income sources.
However, a spokesperson for Chesterfield County Public Schools, which Levy had said was her employer on the majority of her recent filings for campaign donations, said her annual pay from the job was less than $10,000. According to the Journal, an individual with that income level would not be subject to the individual mandate.
CEI general counsel Sam Kazman said that while he would not provide additional details about Levy's sources of income, CEI "stand[s] by our affidavit and there is no reason to assume that substitute teaching is her only or principal source of income."
Dwyer said that the plaintiffs' attorneys "are not concerned about standing issues." However, some attorneys do believe there could be issues with standing, according to the Journal. Neal Katyal -- a former acting solicitor general for the Obama administration who also worked on an amicus brief in support of the administration in the case -- said, "Standing is dynamic and has to be present at all times and not just at the time of the lawsuit's filing" (Wall Street Journal, 2/9).
According to legal experts, only one of the four plaintiffs is required to have standing for the case to be considered on the merits (Rodnofsky et al., Wall Street Journal, 2/6).
GOP ACA Replacement Plan Not Likely To Prevent Potential King Effects
In other related news, an ACA replacement plan unveiled last week likely would not prevent many U.S. residents from losing coverage if the Supreme Court rules for the plaintiffs in King v. Burwell, Modern Healthcare reports.
The plan, drafted by Sens. Richard Burr (R-N.C.) and Orrin Hatch (R-Utah) and Rep. Fred Upton (R-Mich.), would keep some consumer protections enacted under the ACA but would scale back the law's subsidies to help U.S. residents purchase coverage through the exchanges.
According to Modern Healthcare, some Republican lawmakers are hopeful that the plan could help convince some more conservative Supreme Court justices, including Chief Justice John Roberts, to strike down the federal subsidies under the belief that such a ruling would not have too negative of an effect.
However, Burr has said he does not believe his plan likely will generate support from a majority of Republicans in the near future and that he does not think the plan would be enacted prior to the 2016 presidential election. In addition, GOP chairs of three key congressional committees have raised several policy concerns about the plan, as have other stakeholders, raising questions about whether the plan has enough support to pass at all, according to Modern Healthcare (Meyer, Modern Healthcare, 2/9).This is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.