Notice & Comment

The D.C. Circuit Boots Another ACA Lawsuit

Last Friday, the D.C. Circuit rejected West Virginia’s challenge to the so-called “like it, keep it” fix, which told the states that they could temporarily decline to enforce the ACA’s new insurance rules against their insurers. (Background here.)

I’m sympathetic to West Virginia’s underlying legal claim. It was unlawful, in my judgment, for the Obama administration to effectively waive the ACA’s insurance rules. But I’ve always thought that the state lacked standing to bring the case.

West Virginia’s standing theory is a little complicated. It believes it suffered a constitutionally cognizable injury because state officials had to decide whether to allow their insurers to take advantage of the administrative fix. Forcing those state officials to decide put them in an uncomfortable political position—so uncomfortable to amount to an injury. I didn’t buy it:

For all practical purposes, West Virginia faced the same choice before and after the administrative fix: whether to use state resources to enforce the ACA. And it was a bona fide choice: prior to the fix, insurance commissioners in six states had announced they wouldn’t enforce the statute.

All the administrative fix did was change the political stakes of a non-enforcement decision. But that sort of shifting-the-political-stakes claim doesn’t tend to fare well in standing analysis. It’s too speculative—too non-concrete—to license federal courts to referee what is, even in West Virginia’s telling, essentially a fight about political optics.

This morning, the D.C. Circuit agreed. The relevant language is below:

Although [West Virginia] dresses up its argument as a breach of State sovereignty in violation of the Tenth Amendment, its injury is nothing more than the political discomfort in having the responsibility to determine whether to enforce or not—and thereby annoying some West Virginia citizens whatever way it decides. And no court has ever recognized political discomfort as an injury-in-fact. We do not doubt that West Virginia now confronts different political terrain than it did before HHS announced its new non-enforcement policy. But we do not think that represents cognizable legal injury. Increased political accountability of this nature—greater likelihood of political consequence in making a decision—is the kind of inherently immeasurable harm that our standing doctrines have been designed to screen out. Time, and time again, it has been stressed that an injury must be “concrete.”

Good riddance to a politically motivated lawsuit that should never have been brought. And if I were the House of Representatives, I’d be a little nervous. The D.C. skepticism here doesn’t bode well for House v. Burwell—another politically motivated case premised on a novel standing theory.


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