This is an interesting new wrinkle in the latest Affordable Care Act lawsuit saga. It’s possible that the two Texas men who are acting as plaintiffs in the challenge pending in the 5th Circuit Court of Appeals don’t actually qualify to bring the suit anymore.
On Tuesday, a reporter asked whether John Nantz and Neill Hurley still have the insurance they say they were forced to buy under the law they say unconstitutionally. Their lawyer wouldn’t answer. “I’m going to respect the privacy of my clients by not discussing in any more detail of their current health situation or current access to care or insurance,” Robert Henneke of the Texas Public Policy Foundation who is serving as their attorney stonewalled.
If they no longer have those bronze plans, if they’ve dropped them, they don’t have the standing to continue the suit. Law professor Nicholas Bagley points out that lower court “Judge O’Connor’s standing decision depended *entirely* on these two consultants,” and that the case for standing by the Republican states who’ve signed on is questionable. They can’t show direct harm from the law, like individuals who say they were forced by insurance they didn’t want.
Bagley also says “Now would be a good time for California and the blue states to submit a ‘suggestion of mootness’ to the Fifth Circuit. The court needs Nantz and Hurley to explain what ongoing injury they’re suffering. If they aren’t suffering any, they should be booted from the case.”
“This isn’t some minor, technical defect that the Fifth Circuit can ignore,” he tweeted. “This goes to the heart of whether they have jurisdiction to hear this case at all. These two consultants have some explaining to do.” Of course, the Fifth Circuit has proven before that it’s willing to do just about anything Republicans ask of it, but it would be a bridge waaaaaayyyyy to far for Supreme Court Chief Justice John Roberts to cross.