The issue of standing to sue has prompted the latest commotion in King v. Burwell, where the Petitioners ask the Supreme Court to deny low-income families the tax subsidies granted under the Affordable Care Act to help them purchase health insurance. To bring a lawsuit in federal court, plaintiffs must have standing to sue. The prerequisite for standing is injury. Plaintiffs challenging a federal law thus must show either that it caused them injury or that they face an imminent risk of injury. If the risk abates or is too speculative, the litigants have no standing, and the court therefore no longer has jurisdiction.
The plaintiffs (now Petitioners) in King asserted standing based on a roundabout explanation of the harm they would suffer if they received this tax relief. The subsidies, they claimed, would lower their cost of insurance below eight percent of their income, the threshold for the individual mandate to apply. They therefore would be required under the ACA to purchase health insurance or pay a tax penalty—a sufficient injury to confer standing.
Recently, however, some enterprising investigative reporters have raised doubts whether the subsidies would in fact cause any of the plaintiffs in King to be subject to the individual mandate. Two of the four plaintiffs, it turns out, are veterans. Eligibility for VA benefits, or at least enrollment in the program, would exempt them from the individual mandate. A third plaintiff has relocated since the case was filed, and geographic variation in the cost of insurance could affect whether the subsidies put her under the eight percent threshold. And reporters have questioned whether the fourth plaintiff has so little income that she would be exempt from the mandate even with the subsidies.