Before anyone is allowed to challenge a law in federal court, they have to show that they have been injured in some way by the law — a requirement known as “standing.” To date, the overwhelming majority of courts to hear challenges to the Affordable Care Act have dismissed those cases because the plaintiffs lacked standing or because of other procedural flaws with their case. Recently, the United States Court of Appeals for the Third Circuit added itself to this list:
[A]ppellants’ complaint here is “barren” with respect to standing: appellants have provided no information about themselves beyond the fact that they are New Jersey residents and believe that the Act is unconstitutional. These allegations are insufficient to establish standing.
To be sure, these standing cases are unlikely to wipe out the ACA litigation entirely as it moves forward towards the Supreme Court — the lower courts have largely agreed that ACA plaintiffs can overcoming this standing problem if they simply put in their complaint that they are currently arranging their finances in order to pay for health insurance when the law goes into effect in 2014. But it is not at all unlikely that one or more justices could conclude that they lack jurisdiction to hear the ACA cases while the law is not in effect.
The Fourth Circuit recently held that it lacks jurisdiction to review the ACA because of a law known as the Tax Anti-Injunction Act, which prevents a court from stopping the government from collecting a tax, including the taxes in the Affordable Care Act — although a plaintiff may sue to get the money back after the tax is collected. At least one conservative member of the DC Circuit also expressed sympathy with this claim at a recent oral argument.
The Supreme Court’s conservatives have historically been very sympathetic to arguments that their jurisdiction is limited, and if just one of them decided either that the plaintiffs in this case lack standing or that the Tax Anti-Injunction Act applies, then there will be no way for the ACA’s opponents to assemble the five votes they need to win this case.