Standing and Constitutional Faces

March 14th, 2012

Howard Wasserman threads the needle between the requirements of standing doctrine and the need for a good story, in the context of one of the ACA plaintiffs who declared bankruptcy due to *irony alert* unpaid medical bills.

The best justification for requiring standing in this type of constitutional litigation is that it ensures factual concreteness will inform judicial decision making. Facts matter and narrative matters. Thus, we don’t want the National Federation of Independent Business to litigate in its own name; we want it to litigate on behalf of an individual with a real story. And in this case, that story may end up helping both sides.

On the other hand, does this story also show why it’s not worth the bother? The LA Times story says the NFIB was pressed for time in bringing its lawsuit and thus did not have time to fully vet the plaintiff; Brown volunteered and was very vocal on the issue, so the Federation went with her. But does she really add anything to the legal arguments that need to be made or resolved? The NFIB is driving this litigation and the details about Mary Brown are secondary and, ultimately, not very important to the constitutional issues in the case. So would we be better off if we just let the NFIB litigate in its own name without going through the charade of making it find (often without full information) what is, effectively, a front?

I think for most public interest litigation, the plaintiff is just a vehicle.