Ilya Somin at the Volokh Conspiracy covers the recent dismissal of a lawsuit against the Obamacare mandate by a California District, on the basis of lack of standing:
This decision is at odds with rulings by district courts in Virginia, Michigan, and Florida, all of which concluded that a variety of plaintiffs challenging the mandate — state governments, individuals, employers, and the National Federation of Independent Business — do indeed have standing.
Judge Dana Sabraw’s decision relies on the types of standing arguments that I discussed in this post. The key point, as Sabraw sees it, is that the mandate doesn’t go in to effect until 2014, and it is not certain that the plaintiffs won’t obtain the required health insurance before that time. Therefore, he concludes that they haven’t suffered an “injury in fact” of the kind required by the the Supreme Court’s current standing doctrine.
The plaintiffs have appealed the ruling to the Ninth Circuit Court of Appeals, and (more unusually) have tried to get the Supreme Court to hear the issue even before the Court of Appeals does. For reasons discussed by Brad Joondeph and Lyle Denniston, I think the latter gambit will almost certainly fail.
If the Ninth Circuit does uphold the district court’s standing ruling, that might ironically benefit the anti-mandate cause. As the most liberal circuit court in the country, the Ninth Circuit is the least likely to rule that the mandate is unconstitutional.
Somin includes a more detailed analysis of the judge’s rationale here.
Bottom line: this isn’t too big of a setback for having Obamacare’s mandate ruled unconstitutional. Several other courts have already granted similar cases standing, and they are going through. No matter where it gets hears, this case will probably end up in the Supreme Court anyway, where we’ll see just how partisan our Justices can be when answering the question of whether the federal government’s ability to regulate interstate commerce includes the right to regulate the failure to purchase something that can’t be bought across state lines anyway.