West Virginia has preemptively filed a motion for summary judgment in the Obamacare Administrative Fix suit–before DOJ even answered the complaint, which was filed on July 29. This motion seems to force the issue of the merits, presumably before the government would have moved to dismiss on standing ground. I blogged about this challenge here.
In short, the suit argues that HHS is acting unlawfully by not enforcing the individual mandate, and encouraging states to permit insurance companies to offer plans that are void under federal law.
Here is the argument in a nutshell:
The Administrative Fix plainly violates HHS’s mandatory enforcement requirement. Under the Fix, HHS has categorically refused to make any determination regarding state enforcement and has actually encouraged the States not to enforce the ACA’s federal market requirements for many individual health insurance plans. Administrative Fix Letter, Exh. I at 3. Furthermore, HHS has declared as part of the Fix that it simply will not enforce these federal market requirements on these plans for several years, despite its clear duty to do so any time that the States do not. Administrative Fix Letter, Exh. I at 1; Extension Rule, Exh. N at 1. These declarations have been borne out in practice. Where States have refused to enforce the ACA’s federal market requirements and non-compliant plans have been renewed, HHS has consistently failed to bring any enforcement actions.
The biggest challenge faced here is not the merits, but standing. How does a state have standing to challenge non-enforcement of the law? The standing argument appears on p. 35 of the brief.
The brief argues that the state itself, as a sovereign with “special solicitude” under Mass v. EPA suffered an injury:
At least two factors significantly lighten West Virginia’s burden in demonstrating that it has standing in this case. First, when a plaintiff is the “object of the action (or forgone action) at issue,” there is generally “little question that the action or inaction has caused him injury.” Lujan, 504 U.S. at 561–62, 112 S. Ct. at 2137. That West Virginia and the other States are the “object” of the Administrative Fix is plainly apparent; HHS issued the letter formalizing the Fix specifically to all state insurance commissioners. Second, States such as West Virginia “are not normal litigants for the purposes of invoking federal jurisdiction” and are afforded “special solicitude” for purposes of standing. Massachusetts v. EPA, 549 U.S. 497, 518–20, 127 S. Ct. 1438, 1454–55 (2007); see also Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1144–45 (9th Cir. 2013) (collecting cases).
The specific types of injury are twofold. First, it imposes on WV the burden of deciding whether or not to enforce federal laws. It is this decision-making authority itself that inflicts the injury. They frame this as an injury any party would suffer, state or not.
Especially in light of these factors, West Virginia easily satisfies the burden of showing that it has standing to maintain this lawsuit. Specifically, the Fix has caused West Virginia at least two types of injuries, each of which is independently sufficient for standing to raise all the statutory and constitutional claims in this case.4 First, the Fix harms the State because it places upon West Virginia the exclusive responsibility to decide whether and to what extent to enforce federal law within its borders. Like any party placed in that unique position of having exclusive responsibility for the enforcement of federal law, the State is harmed by having to exercise that decision-making authority and has standing to bring arguments that, if successful, would free itself of the responsibility.
The state is placed in between a rock and a hard place–follow the law and do what is unpopular, or follow HHS by ignoring the law and do what is popular:
The Fix exposes West Virginia to harm that it would not have suffered if HHS abided by its mandatory duty under the ACA. Before the Fix, the State had the option of refusing to enforce the ACA’s federal market requirements without any consequences. That is because the Federal Government was required to enforce the ACA and thus no non-compliant plans would be sold in West Virginia no matter what the State did.
But by giving to West Virginia exclusive and unchecked authority over the federal market requirements within its borders, the Fix forces the State into a position where it must take one of two paths, either of which imposes constitutionally cognizable harm on the State. On the one hand, if the State chooses to enforce the federal requirements within its borders, it will be required to expend resources for such enforcement and suffer opprobrium from the individuals who will blame the State for health insurance canceled pursuant to the federal standards. On the other hand, if the State chooses not to enforce the ACA’s federal market requirements within its borders, those West Virginians who believe the ACA is a good law will now blame the State for “vetoing” the ACA’s federal market requirements.
Second, this argument takes on a different level of importance because the party is a state, rather than any party. Specifically, it distorts political accountability because it places the state officials in WV in the unenviable position of following federal law, and ensuring plans to get cancelled, or ignoring federal law (at the request of HHS), and allowing people to keep void policies.
Second, at a minimum, the Fix injuries the State in its sovereign capacity because it requires West Virginia to assume the political accountability for federal policy choices.
Let’s call this the Robin Thicke version of standing, as it focuses on Blurred (political) Lines:
As explained above, the Administrative Fix makes West Virginia (and other States) politically accountable for deciding whether to enforce the ACA’s federal market requirements. The lines of political accountability were clear before the Fix: It was the Federal Government that created the ACA’s new federal market requirements, and the Federal Government made enforcement mandatory. If West Virginians were dissatisfied with the law or its enforcement, they could vote to remove the responsible federal officials in federal elections. The Fix undermines those lines of accountability, however, by giving West Virginia and the other States dispositive power over the enforcement of the federal market requirements. Within West Virginia, the State is now perceived to be politically responsible for the fate of the federal market requirements. Now, “it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulate from the electoral ramifications of their decision.” New York, 505 U.S. at 169, 112 S. Ct. at 2424. This blurred political accountability diminishes the sovereignty of West Virginia by interfering with the relationship between the State and its citizens, and inhibiting the ability of elections to properly hold public officials accountable. See Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S. Ct. 2395, 2400 (1991) (“Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign.”).
Whether or not you agree that either of these injuries wins on the merits, they don’t have to. All WV has to do is plead the arguments to get standing, and get their foot in the door. One you have standing on one grounds, the other claims–which are much clearer winners–are fair game. They can win on the APA claim, but lose on the political accountability argument.
Importantly, this shift in political accountability is sufficient to establish West Virginia’s standing in this case even if this Court ultimately concludes that the shift is not sufficiently serious to warrant summary judgment in the State’s favor on its anti-commandeering claim. After all, “[a] party need not prove that the agency action it attacks is unlawful . . . in order to have standing to level that attack.” Louisiana Energy & Power Auth. v. FERC, 141 F.3d 364, 368 (D.C. Cir. 1998) (emphasis in original). Consistent with this principles, in the commandeering cases that the Supreme Court has considered, “[n]either the majority opinion nor the opinions of” any “Justices who wrote separately questioned [the State or state officials’] standing to sue.” Lomont v. O’Neill, 285 F.3d 9, 13 (D. C. Cir. 2002); see also Frank v. United States, 129 F.3d 273, 275 (2d Cir. 1997) (“we are constrained by Printz to affirm the judgment of the district court conferring standing upon Sheriff Frank”). The D.C. Circuit has followed that approach in its anti-commandeering cases, first finding that the plaintiffs have standing to bring their claims and only thereafter holding that the plaintiffs did not prevail on the merits of those claims. Fraternal Order of Police v. United States, 173 F.3d 898, 904–07 (D.C. Cir. 1999) (finding standing to bring anti-commandeering claims, but upholding the law because it “does not force state officials to do anything affirmative”); accord Lomont, 285 F.3d at 13–14 (finding Article III standing to bring Tenth Amendment claim, but holding against plaintiffs on the merits); see also Gillespie v. City of Indianapolis, 185 F.3d 693, 703–04 (7th Cir. 1999) (same).