Challenging the Slaughter Solution

As the Obamacare debate nears to a close, it is looking increasingly likely that the House will attempt to use the blatantly unconstitutional “Slaughter Solution” to “deem” the Senate bill already passed through the House, even though it has not been. We have already discussed why the Slaughter Solution is unconstitutional (because of the Presentment Clause) here, and this Sunday in the WSJ, Federal Appeals Judge Michael McConnell agreed. Many people seem to be nervous, however, that either a) no one will have standing to challenge Congress’s illegal action, or b) that a legal challenge may not be permitted for several years, until the bill actually takes effect. Although I am not an expert in this particular area of Constitutional law, based upon two famous Supreme Court precedents, the first fear is completely groundless, and the second may be overblown.

First, the Supreme Court has clearly indicated that where an individual is adversely affected by an act of Congress that is undertaken in violation of the Presentment Clause, the individual has standing to sue to challenge the constitutionality of the whole act. In INS v. Chadha, the Supreme Court considered the case of a foreign exchange student whose deportation under the Immigration and Nationalization Act was suspended by the INS upon a finding that his deportation would “result in extreme hardship” under the Act. The House of Representatives, as they were permitted to do under the act, voted unilaterally to overrule the INS and deport Chahda. The Supreme Court found that this action was a violation of the Presentment Clause and sustained Chadha’s challenge to that portion of the Immigration and Nationalization Act’s constitutionality. Among many important facts about this case, it is most relevant to the current discussion that Chadha’s “injury” due to the action taken by Congress was sufficient to confer standing upon him to challenge the constitutionality of the Act itself. Therefore, it seems obvious that, at the very least, the first person who is fined under Obamacare for not having health insurance will have standing to challenge the Act’s constitutionality on Presentment Clause grounds.

The worry, however, is that this will take some years since those provisions of Obamacare don’t kick in until quite a bit down the road. It would seem to me that the first individual to have to pay a tax on his “Cadillac” health insurance plan under the act would also suffer a sufficient injury, especially given the Court’s discussion of standing for the NTEU in Bowsher v. Synar, in which the Court held that the NTEU had standing based on the fact that the Gramm-Rudman-Hollings Act would have resulted in “suspension of certain benefit increases” to NTEU union members. Furthermore, if I am reading Bowsher v. Synar correctly, the NTEU was permitted to bring a declaratory action challenging the Act’s constitutionality before the act actually took effect.

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Another possible hook for an immediate challenge to the constitutionality of Obamacare (and the Slaughter Solution in particular), is the possibility that the States themselves would have standing based upon the creation of unfunded liabilities in the form of Medicaid expansion mandates. The Supreme Court has already held that this type of injury was sufficient to confer immediate standing to a State to challenge the constitutionality of the Line Item Veto Act in Clinton v. New York. Note, of course, that the Line Item Veto act itself contained a statutory “expedited review” provision, but the Court’s language, couched in the language of ordinary standing, is instructive:

There is no merit to the Government’s contention that, in both cases, the appellees have not suffered actual injury because their claims are too speculative and, in any event, are advanced by the wrong parties. Because New York State now has a multibillion dollar contingent liability that had been eliminated by §4722(c), the State, and the appellees, suffered an immediate, concrete injury the moment the President canceled the section and deprived them of its benefits.

This is, of course, not an exhaustive look at all the legal doctrines in play, and does not even touch upon the “Congressional standing” doctrine, which I will not pretend to understand or know anything about. But it seems fairly certain from even a cursory review of the case law that some ambitious plaintiff or another will have standing to challenge the act, at least in a declaratory action, almost immediately after filing.