Affordable Care Act litigation: the standing paradox.

I. INTRODUCTION 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.1 A. PROCEDURAL POSTURE OF THE ACA LITIGATION The Supreme Court will not have to reach this particular procedural conundrum to decide the merits of the Florida lawsuit on which it granted certiorari2 because the particular constellation of plaintiffs before the Court covers all fronts. The two substantive claims are, first, whether the ACA's minimum essential coverage requirement, popularly known as the individual mandate, exceeds Congress's enumerated commerce or spending powers, 3 and, second, whether the ACA's expansion of Medicaid eligibility to low-income, non-elderly adults exceeds previously articulated limits on Congress's conditional spending power to encourage state cooperation in implementing federal programs.4 Plaintiffs in the Florida lawsuit include two small business owners, the National Federation of Independent Business (NFIB), and twenty-six states. 5 The individual business owners allege that the ACA's minimum essential coverage requirement has already caused them injury-infact 6 by compelling them to alter their business and financial practices in anticipation of the individual mandate's 2014 effective date.7 Even if one or both of the individual plaintiffs falls out of the lawsuit,8 the NFIB would likely maintain standing to represent the interests of its individual members.9 Alternatively, there are many other similarly affected individuals and small business owners who could join the suit, alleging personal injury.10 The states challenge both the individual mandate and Medicaid expansion. States clearly have standing on the Medicaid claim as that issue alleges federal coercion or commandeering of states and state officials in violation of the Tenth Amendment.11 Medicaid expansion operates directly on states, imposing new federal requirements on the states themselves.12 States' standing to challenge the individual mandate is murkier, however. The individual mandate, by its terms, applies to individuals, not states.13 It is enacted under federal law, carries a federal tax penalty for non-compliance, and will be enforced by federal authorities. 14 States have offered various theories of standing to challenge the individual mandate, but the Court likely will not have to resolve that question. 15 As long as one individual plaintiffor the association representing individuals in the Florida case retains standing, the question of the constitutionality of the individual mandate is properly before the Court.16 Lower courts' decisions in the ACA litigation, however, leave the standing paradox unresolved. At least one court wrote strongly that a state, suing alone, may not challenge the individual mandate.17 That decision may be the product of strategic error by the plaintiff-state or the court's restrictive application of standing doctrine. By contrast, lower court decisions, described in detail below, liberally allowed individuals to challenge the individual mandate's constitutionality-not as a violation of their own individual rights but as an intrusion on states' reserved powers-as long as the plaintiffs alleged concrete, particularized injury. 18 After cataloguing courts' treatment of individual plaintiffs' standing claims, this Article contends that courts should similarly allow states to challenge the scope of federal power, as long as states meet the same constitutional requirements for standing. …