Affordable Care Act Litigation: The Standing Paradox
The Patient Protection and Affordable Care Act (ACA or the “Act”) litigation presents a standing paradox. In the current posture, it appears that states lack standing to challenge the federal law on behalf of individuals, while individuals possess standing to challenge the federal law on behalf of states. This Article contends that there is no principled reason for this asymmetry and argues that standing doctrine should apply as liberally to states as to individuals, assuming states allege the constitutional minimum requirements for standing and especially where the legal challenge turns on the allocation of power between the federal government and the states. While states may have no greater claim to judicial review of federal laws than individuals, they should not have any less.The Supreme Court will not have to reach this particular procedural conundrum to decide the merits of the Florida lawsuit on which it granted certiorari because the particular constellation of plaintiffs before the Court covers all fronts.