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Chris Christie's decision to block health insurance exchanges in New Jersey brings forward the percolating question regarding an IRS ruling (PDF) that the ACA tax credits will be available on federally run exchanges.

Oklahoma is seeking to challenge the IRS ruling. While the challenge seems extremely weak to me on the merits, that's never stopped the Roberts 5 before.

However, the standing issue seems even more clear cut - what is Oklahoma's injury here? Howe would they have standing? Indeed, no one seems injured at all.

In Lujan v. Defenders of Wildlife, Justice Scalia, writing for the Court, stated:

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: first, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally-protected interest which is (a) concrete and particularized, see id. at 756; Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16 (1972); [n1] and (b) "actual or imminent, not ‘conjectural' or ‘hypothetical,'" Whitmore, supra, 495 U.S. at 155 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be
fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.
Simon v. Eastern Kentucky Welfare [p561] Rights Org., 426 U.S. 26, 41-42 (1976). Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id. at 38, 43.

The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990); Warth, supra, 422 U.S. at 508. Since they are not mere pleading requirements, but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.

Oklahoma has no injury in fact, or even hypothetically. Nor would any individual. This is akin to a taxpayer suit challenging Congressional legislation. But the Lujan Court ruled that:
When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depend considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has [p562] caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction -- and perhaps on the response of others as well. The existence of one or more of the essential elements of standing
depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,
ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989) (opinion of KENNEDY, J.); see also Simon, supra, 426 U.S. at 41-42; and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. E.g., Warth, supra, 422 U.S. at 505. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily "substantially more difficult" to establish. Allen, supra, 468 U.S. at 758; Simon, supra, 426 U.S. at 44-45; Warth, supra, 422 U.S. at 505.
Individuals offended by the tax credits being offered in a federal health insurance exchange can just not use it if they wish. There is no injury. Making the "unfettered choice" clear.

I see no injury for individuals, much less for the State of Oklahoma.

But courts do whatever the hell they want anyway.

Originally posted to Armando on Thu Dec 06, 2012 at 11:54 AM PST.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics.

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