Late last year, Texas federal district court judge Reed O’Connor ruled that Obamacare was unconstitutional. His reasoning was absurd: because the fine for not having insurance has been reduced to $0—for the time being—it means the individual mandate no longer exists. And since the whole law is based on that, the whole law is now unconstitutional.
Naturally, this has been appealed. But today, the 5th Circuit asked for briefs on whether anyone actually has standing to appeal:
This is an ominous sign. If neither the blue states nor the House has standing, it would mean that no one has standing to appeal the decision. That would effectively leave the lower court decision unappealable.
— Nicholas Bagley (@nicholas_bagley) June 26, 2019
This sort of thing happens too frequently, and the Supreme Court needs to say something about it. It wouldn’t have to overturn decades of jurisprudence about standing, it would just need to slightly liberalize the terms under which states and legislatures can say that they’re affected by a lower court ruling.
I mean, can you imagine what would happen if this were allowed to stand? It would bless the strategy of forum shopping to find a reliably anti-Democratic judge to invalidate Obamacare nationwide, and would then prevent any higher court from hearing an appeal. No democracy can support something like this.
In the end, even if standing were disallowed, I suppose some blue state somewhere would forum shop for its own judge, who would then hand down the opposite ruling. At that point, higher courts would have to take on the substance of the case whether they liked it or not. But it’s still no way to run a railroad.
