Shaky standing for big Obamacare court case plaintiffs?

The U.S. Supreme Court
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The U.S. Supreme Court

This group might have a tough time getting together a golf foursome—much less one for crippling Obamacare.

New reports are raising questions about whether four people pursuing a Supreme Court case challenging Obamacare subsidies in much of the country actually have the legal right to bring that case.

The questions about two of those people relate to whether they were eligible or received health coverage from the Department of Veterans Affairs. The third person reportedly gave a short-term motel as her address in Virginia when she joined the suit, and the fourth person reportedly projected income for 2014 that exceeds what her employer has said they would have paid her.

The Wall Street Journal reported that the issues could undermine the legal standing that the plaintiffs claim in their joint lawsuit.

And the fourth person in that quartet of would-be slayers of a large chunk of the Affordable Care Act reportedly doesn't actually understand that if their case is successful that millions of Obamacare customers likely would be unable to afford their current health insurance plans and would stop having coverage.

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"I don't want things to be more difficult for people," that woman, Virginia resident Brenda Levy, told Mother Jones magazine. "I don't like the idea of throwing people off their health insurance."

Levy, 64, also told Mother Jones, "I don't know how I got on this case. I haven't done a single thing legally. I'm gonna ask them how they found me."

Levy, who is a substitute teacher, reportedly was unaware that there is no backup plan that would replace the insurance plans lost by people who could no longer afford them if her suit prevailed at the Supreme Court.

The Journal reported Monday night that Levy, in court papers had projected her 2014 income would be $43,000. But a spokesman for the school system listed as her employer told the newspaper that Levy's annual pay rate would not be more than $10,000.

If that was Levy's only income, she would not be subject to the Obamacare penalty for failing to have insurance, would not earn enough to be eligible for subsidies to help buy insurance, and thus possibly wouldn't have legal standing to challenge the subsidies in court. She did not answer questions about her actual income from the paper, but the general counsel for the group backing the case told Journal "there is no reason to assume that substitute teaching is her only or principle source of income."

The case due to be argued March 4 before the Supreme Court claims that billions of dollars of those subsidies, or federal tax credits, that helped most HealthCare.gov customers pay for their health plans are illegal. The lawsuit contends that because of the way the Affordable Care Act is written, subsidies can be issued only to customers of a state-run Obamacare exchange, not to customers of the federally run exchange HealthCare.gov, which now serves 37 states.

The suit is expected to be decided in late June. If the high court rules for the plaintiffs, the subsidies would be unavailable to HealthCare.gov customers, and experts agree that millions of them would stop paying for their insurance because they would find the retail prices of the plans too steep.

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The Wall Street Journal reported late last week that two plaintiffs in King v. Burwell—David King and Douglas Hurst—may be subject to challenges over their legal standing.

King admittedly is a veteran of the Vietnam War, and told the Journal he had visited a Veterans Affairs medical center and had a VA identification card.

Hurst's wife has described him in social media as being a veteran of the Vietnam War, according to the Journal.

If King and Hurst were enrolled in health coverage through the Department of Veterans Affairs they would not be subject to the Obamacare penalty for failing to have health coverage as of 2014. This threatened penalty forms a key part of their purported grounds for their legal challenge to the Obamacare subsidies.

Both men had claimed they were not eligible for health insurance from the government or an employer when they filed the suit in 2013, according to the newspaper.

The Journal reported Friday that lawyers retained by the Competitive Enterprise Institute, the think tank that launched and bankrolled the case, "said they were aware of Mr. King's veteran status, as well as that of Douglas Hurst of Virginia Beach, the second plaintiff, and they didn't believe it posed an issue."

A lawyer for CEI said neither man was enrolled in Veterans' health coverage at the time of the suit, and that Hurst has never enrolled. The lawyer told the Journal that if King was enrolled, it was after the suit was filed.

On Monday night, the Journal reported that the case's other plaintiff, Rose Luck, in court papers had claimed to be a resident of Petersburg, Virginia, when she joined the lawsuit in 2013. Her address was used to calculate the price of insurance plans available to her in that ZIP Code, in addition to the value of the subsidies that would have helped her pay the premiums for such a plan, according to the report.

"That information was relevant for determining whether Ms. Luck's situation qualified her to be a plaintiff in the case," the Journal reported.

But the address that Luck uses "is for the American Inn motel a short distance from Interstate 95," the Journal reported.

"A receptionist at the inn said Sunday that Ms. Luck didn't currently live there and that residents weren't allowed to stay for more than 28 days."

The Journal also noted that Luck's legal standing was previously an issue at the lower-court level, because of questions about "whether she was exempt from the penalty for not buying coverage because her income was too low."

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A CEI spokeswoman told the newspaper that the group knew that Luck used the motel address when she filed the suit, and also said she still lived in Virginia, but would not say where.

"The lawyers are not concerned about standing issues," the CEI spokeswoman reportedly said.

Health-care law professor Tim Jost, a leading Obamacare supporter and critic of the lawsuit, told the Journal, "All of these plaintiffs are people they picked off the street for this litigation."

Read the Mother Jones story here.

Read the first Wall Street Journal story about the standing questions related to King and Hurst here.

Read the Journal story about Luck's motel address here.