Standing to Sue/The Supremacy Clause

February 16, 2015

In all lawsuits, plaintiffs must have standing to sue. In federal court there must be:  (a) a controversy which falls within the ambit of cases the federal courts can hear; and (b) a plaintiff suffering from or having the potential to suffer a real and direct injury. Without these two conditions you can’t sue.

Further, standing is necessary when a suit gets filed and during the entire process. If the risk of a direct injury when you sued goes away—because, for example, your status changes or a law you are complaining about gets repealed—your suit cannot go forward.

So standing has become an issue in King v. Burwell, the case challenging Obamacare subsidies. Here’s Cristian Farias at New Republic with a February 13 piece, The Supreme Court Could Dismiss the Obamacare Lawsuit Over This One Legal Quirk.

And the quirk? It seems, per the Wall Street Journal, that the plaintiffs may all lack standing right now. Mr. King and plaintiff Douglas Hurst can get veteran’s health benefits. That means they might not be affected by Obamacare requirements in any way. Alas, per attorneys for the plaintiffs, they are not “eligible” for veterans’ health care benefits because they never signed up for them. For details, with no opinion about the correctness of the legal analysis, read Jennifer Haberkorn’s February 7 article for Politico, King Lawyers: Veterans Coverage Won’t Upend Obamacare Challenge.

One of the other plaintiffs is about to age into Medicare. The fourth one may be ineligible for the subsidies she has brought suit not to receive.

The Court should examine the standing issue on its own. But, four justices wanted to hear this case. There are surely others around the country who can properly sue. Finally, the issue will be back if the Court does dismiss the suit for lack of standing. Expecta  decision on the merits.

One other thought occurs to me. Who, in his right mind, declines veterans benefits so he can have standing to challenge another benefit? There’s something wholly insane about this process. Really!


On to same sex marriage! Reader SC contacted me, wondering why Alabama state court judges—most, but not all—have ignored the ruling by the federal court. Here’s a primer and a few thoughts.

Article VI of the U.S. Constitution states, in part:

This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

In Marbury v. Madison the Supreme Court claimed for the federal courts the right to opine on constitutional issues. No one seriously questions this concept, at least not in the abstract. Still, Alabama Chief Justice Roy Moore issued his order on February 8, 2015, effectively instructing state probate judges and state agents and employees to disregard the ruling of a federal judge. (Chief Justice Moore made comments in the media about not having a ruling from the U.S. Supreme Court, seemingly ignoring the fact that the Court refused to stay the trial court order.)

So, why are many Alabama counties ignoring the federal court order? Two reasons, I think. First, many Southerners are still fighting the War of Northern Aggression, just shy of 150 years after General Robert E. Lee surrendered at Appomattox. Having a decision from an unelected judge, appointed by the President of the United States and confirmed by the U.S. Senate, provides opportunities to act out, plain and simple.

Second, and more directly, Alabama elects its judges. And, as of 2008 anyway, reported that Alabama Judges Rank High in Pay.

Judges are attorneys who no longer have to practice law. Judges I know report less stress and more happiness. Some complain about the pay, but they never miss a paycheck and they have real pensions.

Judges I know are also pretty bright people, and I’m betting the same goes for many Alabama judges. If someone sues them for not complying with a federal court order they’ll get defended by a government attorney, and never pay a dime. And probably guarantee that they’ll be re-elected. And if they abide the federal court order and marry those people, they’ll be looking for work soon after the next election.

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