Ass'n of Am. Physicians & Surgeons, Inc. v. Koskinen, No. 14-2123 (7th Cir. 2014)

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The Patient Protection and Affordable Care Act requires almost everyone to have health insurance and is enforced by a tax that most businesses must pay if they fail to provide insurance as a benefit, or that anyone not covered by an employer’s plan must pay in lieu of purchasing insurance, 26 U.S.C.4980H, 5000A. The Internal Revenue Service has stated that it will collect the tax in 2014 from uninsured persons, but not from certain businesses. Plaintiffs, a physician and an association of physicians, claimed violation of the separation of powers and the Tenth Amendment. Because they did not complain about their own taxes, the district court dismissed for lack of standing. The Seventh Circuit affirmed. Rejecting an argument that the challenged policies change demand for plaintiffs’ services, the court noted that plaintiffs “appear to believe” that insurance is free to workers--that wages do not adjust to reflect pensions, insurance, and other benefits. By the same logic, they could litigate any tax policy. In a market economy everything is connected to everything else through the price system. To allow a long, intermediated chain of effects to establish standing is to abolish the standing requirement. The Constitution’s structural features are not open to litigation by persons who do not suffer particularized injuries. Plaintiffs, who do not accept insured patients, want to reduce, not increase the number of persons who carry health insurance. Someone else would be more appropriate to argue that the IRS has not done what it should to accomplish the statute’s goal of universal coverage.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 14- 2123 ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC., and ROBERT T. MCQUEENEY, Plaintiffs- Appellants, v. JOHN KOSKINEN, Commissioner of Internal Revenue, Defendant- Appellee. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13- C- 1214 William C. Griesbach, Chief Judge. ____________________ ARGUED SEPTEMBER 16, 2014 DECIDED SEPTEMBER 19, 2014 ____________________ Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. EASTERBROOK, Circuit Judge. The Patient Protection and Affordable Care Act requires almost everyone to have health insurance. See National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012). The principal enforcement mechanism is a tax that most businesses must pay if they fail to provide health insurance as a fringe benefit, or that any- one not covered by an employer s plan must pay in lieu of 2 No. 14- 2123 purchasing insurance. 26 U.S.C. §§ 4980H, 5000A. The Inter- nal Revenue Service has announced that it will collect the tax in 2014 from uninsured persons, but not from certain busi- nesses that fail to provide insurance as a fringe benefit. IRS Notice 2013- 45, 2013- 31 I.R.B. 116. Plaintiffs asked the district court to enjoin what they describe as a violation of the sepa- ration of powers (perhaps more accurately of Art. II §3, which requires the President to take Care that the Laws be faithfully executed ) and the Tenth Amendment. But plain- tiffs do not complain about their own taxes, so the district court dismissed the suit for want of standing. 2014 U.S. Dist. LEXIS 34980 (E.D. Wis. Mar. 18, 2014). Plaintiff McQueeney is a physician; the other plaintiff is an association of physicians. McQueeney and many of the Association s members operate cash- only practices and do not accept insurance. One would suppose, therefore, that they are better off as a result of the IRS s policy, for fewer people will carry insurance and plaintiffs will have more po- tential to attract business. They appear to believe, however, that insurance is free to workers that wages do not ad- just to reflect the value of pensions, insurance, and other fringe benefits. If that is so, then employers that do not pro- vide insurance also will not offer higher wages (other things equal). Then, when workers buy their own insurance (or pay the penalty tax), they will have less income available to pur- chase medical care from plaintiffs. That change in the de- mand for their services gives them standing, plaintiffs main- tain. By the same logic, they could litigate about any tax poli- cy. If the IRS issues rules forbidding certain tax shelters, plaintiffs could demand a judicial review of the rules even though they have not used any similar devices to shelter their own incomes, because, whenever the IRS collects more No. 14- 2123 3 in taxes (especially from those taxpayers most likely to af- ford medical care out of pocket), people have less income to buy the medical care that plaintiffs offer. This is not, however, the Supreme Court s view of stand- ing. The Court has rejected efforts by one person to litigate about the amount of someone else s taxes (or someone else s subsidies, which are taxes in reverse). See, e.g., Hein v. Free- dom from Religion Foundation, Inc., 551 U.S. 587 (2007); Allen v. Wright, 468 U.S. 737 (1984); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976); Warth v. Seldin, 422 U.S. 490 (1975). In Allen parents whose children attended public schools contested the IRS s approach to tax exemp- tions for private schools, arguing that permitting schools that engaged in racial discrimination to obtain exemptions affects the composition of the student population in the pub- lic schools too. The Court replied that such an effect is too remote to provide standing, because it depends on the reac- tions of many intermediate actors, including the private schools and the parents of children at both public and pri- vate schools. The longer the causal chain, the less appropri- ate it is to entertain standing, the Court explained. In a market economy everything is connected to every- thing else through the price system. To allow a long, inter- mediated chain of effects to establish standing is to abolish the standing requirement as a practical matter and the de- cisions we have cited are just a few among the many that re- fuse to follow that path. Plaintiffs do not contend that the causal chain from the tax collector s acts to their (asserted) injury is shorter than the ones held too long in Allen and similar decisions. Instead they assert that Allen is irrelevant because the claim there 4 No. 14- 2123 arose under the Equal Protection Clause, while plaintiffs claim rests on the Tenth Amendment and separation of powers. That has nothing to do with standing, however. A different substantive claim does not establish injury in fact, causation, and redressability, the three elements of constitu- tional standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiffs rely especially on Bond v. United States, 131 S. Ct. 2355 (2011), which holds that a private person may pre- sent arguments based on the Tenth Amendment and the Commerce Clause. Yet Bond does not hold that everyone is entitled to litigate about the division between state and fed- eral authority. The Supreme Court does not think that the Constitution s structural features are open to litigation by persons who do not suffer particularized injuries. See, e.g., Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974); United States v. Richardson, 418 U.S. 166 (1974). Bond was prosecuted, convicted, and sentenced to prison under a statute that, she contended, Congress lacked the au- thority to enact. She sought to remain free. Injury, causation, and redressability were easy to establish. Plaintiffs, by con- trast, invoke a long and contestable chain of causation; they do not complain about anything done to them personally. That s why Allen and similar decisions require dismissal. Plaintiffs would be the wrong persons to litigate even if they had standing. Only persons seeking to advance the in- terests protected by the mandatory- insurance portions of the Affordable Care Act would have a plausible claim to relief. See Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) (discussing the zone- of- interests requirement). Yet plaintiffs, who do not accept insured pa- No. 14- 2123 5 tients, want to reduce rather than increase the number of persons who carry health insurance. Someone else would be a much more appropriate champion of the contention that the IRS has not done what it should to accomplish the stat- ute s goal of universal coverage. AFFIRMED

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