St-St-St-Standing Junior

I've cleared the dust from my law school books, did some research, and here is what I found.

Before discussing the substantive Constitutional issues proposed by the States' Attorneys General, we must first address some procedural issues, standing and ripeness. I apologize in advance if this is dry. I'll do my best to spruce it up and add some life to it.

An initial step in any Constitutional analysis is to determine if the party or parties bringing suit have standing. The doctrine of standing has it's origins in the Constitution, Article III to be specific. Article III requires a "case" or "controversy" to be present before a Court can adjudicate an issue. See Article III, Section 2. As noted in the case of Frothingham v. Mellon, 262 U.S. 447 (1923):

[The Supreme Court has] no power per se to review and annul acts of Congress on the ground that they are unconstitutional. The question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act…. The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.

See Frothingham. Thus, in order to satisfy this Constitutional requirement, the United States Supreme Court created a three-part test: (1) the plaintiff commencing the lawsuit (Attorneys General on behalf of their respective States and Commonwealths here) must have suffered an injury in fact; (2) there must be a causal nexus between that injury and the conduct complained of; and (3) it must be likely that the injury will be redressed by a favorable judicial decision. The first element - injury in fact - seems to be a problem for the States' case.

In determining whether the plaintiff has a personal stake sufficient to confer standing, the focus should be on whether the complaining party has alleged any injury in fact, economic or otherwise. The injury may not be merely hypothetical or conjectural. The States' seem to allege a number of Constitutional issues, none of which actually injury the States themselves. First, the States maintain that "the act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs' respective states" and imposes a tax on "uninsured citizens and residents." See Complaint at paragraph 2. Well, let's see, notwithstanding the nauseating political sloganeering rhetoric contained in the Complaint, all the Complaint seems to do here is allege an injury to the "individuals living in the Plaintiffs' respective states." Clearly, there is no injury to the State itself in this assertion. There is simply an injury to individuals. Such an allegation fails to meet the standing requirement.

The second injury asserted by the States, however, may provide them with the money to pay the Standing toll. This injury can roughly be summed up by saying "we the states will be required to spend more money (i.e., labor, supplies, offices, etc.) to implement your health insurance reform. At an extremely basic level, this seems to meet the standing requirement. But for the health bill, the states would have additionally money to spend on other areas of its choosing. If the case fell before an extremely sympathetic Judge, this assertion may provide the states with a way to overcome the standing requirement.

Yet, it is worth noting that the states expend a significant amount of money implementing any number of Federally-created programs such as Medicare and Medicaid and Employment (including unemployment) offices. Thus, allowing the health care bill to proceed on this ground may call into question a number of firmly established Federal programs. A Judge (or eventually the Supreme Court Justices) may be loathe to be the catalyst for such a radical change in the legislative and administrative landscape. (Of course that argument assumes that there may be some Constitutional infirmity with the laws that promulgate those programs).

As such, the Standing requirement, as with so many legal arguments, is inconclusive. As any professor of law would say, "it depends." There is no concrete answer on this one. Before we conclude this session, I'd like to address two additional issues - the technicality argument and overzealous advocacy.

The Technicality Argument

It doesn't take much to imagine that assuming the Federal Court dismisses this action for lack of standing, someone will argue that it was kicked out of court on some "technicality." This argument is simply illogical. The Standing argument, as discussed above, is founded in the Constitution. It has the full weight of efficacy of the document to back it up. Yet, people have a tough time swallowing such a doctrine. But, to simply dismiss this doctrine as a technicality calls into question not only Article III of the Constitution, but also every other provision, including the scope and limit of Federal powers. Thus, taking the technicality logic to an extreme, one could say that the scope and limit of Federal powers are merely a technicality; and, as a result, they should not be enforced. Clearly, such an argument does not have any credibility. Likewise, an argument discounting the standing requirement does not have any credibility.

Overzealous Advocacy

One piece of advice from Chief - then Justice - Rehnquist is particularly applicable to the health care political debate litigation. In discussing the doctrine of Standing, the Chief Justice asserted that "standing is not measured by intensity of litigant's interest or fervor of his advocacy." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.s. 464 (1982). The attorneys general would be well-advised to keep this principle in mind. The health care legislation arose from a decades-long political debate. It has been worked and re-worked numerous times, primarily in a contentious manner. The present debate is no exception. Parties and groups from all political stripes inflicted and suffered serious injuries from the debate. With that said, it is questionable that the attorneys general - many of them partisan - would even commence such litigation. It seems clear that this litigation is simply an attempt to defeat an opposing political party, not uphold the validity of the Constitution. Rarely has the Constitution been utilized in such a one-sided political fashion. It is not a doctrine to be opportunistically referenced whenever a political party looses a legislative battle. In other words, a losing political party should not play fast-and-loose with the document on which this country was founded.

Step 2: Ripeness