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PoliGAF 2015 |OT| Keep Calm and Diablos On
- Thread starter Aaron Strife
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Metaphoreus
This is semantics, and nothing more
[1] I don't know where you're getting this "reasonable official" business from, but regarding the nature of Arlington's "state official who is engaged in the process of deciding whether the State should accept [federal] funds and the obligations that go with those funds" as a fictional construct rather than a reference to any actual flesh-and-blood human beings, see here.
[2] If it is unconstitutional, and it isn't a Spending Clause program, then it's not unconstitutional on account of Pennhurst or Arlington, but because of some expansion of those cases into heretofore-untouched realms (or some other doctrine).
[3] Perhaps "faithful execution" isn't "cut and dry," but it's certainly not "execute or not or whatever," which was how your last post represented it.
[4] That's incorrect. Generally, the Supreme Court will adhere to the doctrine of stare decisis, and doing so even in the face of clearly wrong precedent (such as Wickard, which you mentioned) isn't always entirely without its virtues. If precedent is meaningless in the Supreme Court, then there's no point debating this case at all, since we have no basis on which to do so.
[5] Pennhurst did involve spending, and as we've already established, so does this case. The logic in the Pennhurst line of cases depends on analogizing Spending Clause programs to a contract, so I'm having a hard time imagining an argument for expanding it beyond programs so structured.
[6] You may not have noticed, but large portions of my last several posts have involved linking you back to older posts that address this or that of your stated misconceptions. I'd say you could at the very least do the same for me, but since I'd remember if you had already established the correctness of your position, I won't pretend you could.
[7] Actually, it was a consequence of the state failing to enact a law imposing the employer mandate that Congress desired, just as a lack of credits on the FFE under PPACA is a consequence of the state failing to enact a law to establish the exchange that Congress desired. You've identified a distinction without a difference.
[8] This is the danger of naked purposivism in interpreting a statute. "This was their purpose, therefore the law means X, regardless what the text says!" Yet you yourself acknowledged that Congress had many goals in enacting the ACA. You did not acknowledge--but cannot in good faith dispute--that one of those goals was to have the states play the primary role in implementing the law. On what basis do you claim that the goal of expanding insurance coverage was pursued by Congress more zealously than its goal to give states the primary role in implementation?
[9] I can think of several off the top of my head. For instance, NFIB v. Sebelius, or the WWII-era case that first decided that health insurance was "commerce" (and prior to which the Court had held it was not--the name of the case eludes me), or, for that matter, Wickard v. Filburn.
I'm going to need citations for each of those statements. (For the second, citing a case stating that Congress may not enact a law that it knows will fail will suffice.)
Metaphoreus
This is semantics, and nothing more
Yeah, that one.
benjipwns
Banned
Schechter Poultry Corp. v. United States probably had a drastic effect on the economy considering it broke up the fascist cartels of the NRA. And overnight killed hundreds of cases against violators of the price fixing and so on.
Louisville Joint Stock Land Bank v. Radford is an underrated New Deal one.
Louisville Joint Stock Land Bank v. Radford is an underrated New Deal one.
Metaphoreus
This is semantics, and nothing more
In other lawsuits-against-Secretary-Burwell news, the cert. petition filed by the University of Notre Dame was relisted for this Friday's conference. Notre Dame is seeking to have a pre-Hobby Lobby 7th Circuit opinion vacated, and its case remanded for consideration in light of the Supreme Court's holding in Hobby Lobby. The Court's recent practice has been to relist petitions once before granting them.
EDIT: Oh, and Politico misdescribes Citizens United:
Well done, Linda Hirshman. (What is it with Lindas?)
EDIT: Oh, and Politico misdescribes Citizens United:
Politico said:
Well done, Linda Hirshman. (What is it with Lindas?)
Black Mamba
Member
1. posting something to which I've already responding isn't going to advance the conversation. You ignored my question, though.
howabout this? Can a state official who is engaged in the process of deciding whether the State should accept [federal] funds and the obligations that go with those funds be reasonably mislead to those obligations by the federal government?
2. This is exactly what I've always been arguing...sigh
3. note my language never said "execute or not" when I said it. I made an important distinction.
4. Actually, this is incorrect. Stare decisis is bullshit. It's something made up by justices to give extra weight to their bullshit arguments. Justices ignore stare decisis every time their argument does not conform with their political and/or legal theories. They cite it every time it does. It's been over a decade since I had to do any political science research, but the last time I did, there was only one documented time of stare decises ever being used contrary to that Judge's normal opinion (and it was a long time ago...like 1920s or something). Now, precedent and shit matters below the SCOTUS. But at the SCOTUS level it is irrelevant. They will rule how they want to rule no matter what past rulings have said. There has not been a single case in our lifetime that was decided because of stare decisis and there never will be.
5. It's a tax and spending clause case, but it's mostly tax. I've explained the logic, it revolves around what is reasonable for a state official to believe at the time of making a decision. You claim it should be only upon the reading of the law but I'd argue that's an unreasonable approach. A state official may simply misread something, even if unambiguous. Besides, in the modern word, state officials rely on what others tell them, namely the federal government, since it would be too time consuming to read all applciable laws.
6. I've come to the conclusion you save your posts in some way for quick referral. I'm sorry, but I don't bother with that and certainly don't have the time to back search. If it's something very recent, I'll try to do it but in this case it's not. I'm not trying to be mean about it, it's just way too much work for me to do this.
7. No, these are distinctly different. One is Congress passing a law through the ICC and telling states to enforce codified law or there will be consequences. The other is a program through the tax and spending clause that tries to convince the states to do something the federal government wants it to do. The employer mandate isn't something "congress desired." The employer mandate is federal law. It doesn't have to convince anyone for it to exist. If it wants to punish an employer for not complying, it can do it without the states just like the federal government can and has arrested medical marijuana dealers in California.
The two are legally worlds apart.
8. The primary goal of the ACA was to increase coverage. That is obvious. And actually, there were competing theories as to who should play the primary role. The House wanted only a federal exchange while the Senate wanted state exchanges. What resulted was a compromise. I don't think state exchanges were a goal at all, I think it was just one method to the goals. By numerous goals, I meant: expanded coverage, more affordability, access for everyone, bending the cost curve, reducing overuse. They were all economic in nature.
9. Nope. Wickard only affect him directly. It indirectly affected many things and it allowed Congress to pass almost anything, but it did not have a profound effect overnight. NFIB v Sebellius did almost nothing to the economy. US v. SE Underwriters Association didn't have the same overnight impact, either. The law was re-written to undo that ruling before anything could really come of it.
A ruling in favor of King would upend the entire industry overnight. We're talking about almost 20% of the economy in any given state. No SCOTUS decision has ever done that to my knowledge. Most landmark economic cases upheld current law and didn't change the status quo with the economy. I'm thinking maybe the Civil Rights case but I am unaware of to what extent banning black people from establishments was the norm at the time (I know prior to the law it was common but once enacted til the time of the ruling, I am unsure).
I guess the invalidation of the income tax. But now we're going to the 19th century and that economy is nothing like a modern one.
Also, any case that validates current law doesn't count (as that only maintains the status quo).
Yes, a ruling like Wickard was far reaching over time but nothing like King can be in one swoop. I just can't imagine SCOTUS getting involved this way. They'll use any reason necessary to prevent it.
First is my interpretation. I don't agree with yours. I can't cite my interpretation. I'm using the same quotes you are and read them differently (kind of funny given the case, eh?).
I'm pretty sure Congress has never passed a law it intended to fail, so there would be no such cases, but I do think there would be an Article 1 Sec 8 General Welfare argument in there if need be, but I don't want to bother with that.
I mean, the entire idea that Congress would pass a law it intends to fail is just a bizarre concept. Why would a judge ever believe Congress would do such an irrational thing?
Black Mamba
Member
NRA was already kind of irrelevant by the time the case was adjudicated, wasn't it? though I agree it was an important ruling.. I can't quite remember the direct economic impact at the time.
Killing cases doesn't have the same impact, though, as King.
Stock Land Bank probably didn't result in thousands of repossessed farms right away.
Let me clarify. There have been cases with bigger economic implications but I can't think of any with as big an overnight change to the overall US economy or a state's economy that King should they side with Petitioners. Put another way, had this case come up in 2010, it could literally put us into another recession.
On a separate note, I will probably be busy during tomorrow's Oral Arguments.
I will say this...even if the conservatives will side against King, I fully expect them to troll and/or play devil's advocate tomorrow so don't take too much stock into what goes on. It will be interesting, nonetheless.
benjipwns
Banned
I'm convinced, Notre Dame should be banned from the College Football Playoffs until 2028.Students also fall into the demographic—women
aged 18-24with the highest rate of unintended
pregnancy in the United States. See Lawrence B.
Finer and Mia R. Zolna, Shifts in Intended and
Unintended Pregnancies in the United States, 2001-
2008, 104 Am. J. of Pub. Health S43, S44-45 (2014),
http://bit.ly/1dEgz7K. Not coincidentally, women in
this age group account for nearly half of all abortions
in the United States. See Guttmacher Inst., Fact
Sheet: Induced Abortion in the United States (Dec.
2013), http://bit.ly/1bZJLuQ.
Students who choose not to undergo an abortion,
but to carry a child to term, are likely to face
consequences that impair their ability to fully
participate in society. They are, for example, far less
likely to complete their college education. See Dep’t
of Educ., Nat’l Ctr. for Educ. Stat., Short-Term
Enrollment in Postsecondary Education: Student
Background and Institutional Differences in Reasons
for Early Departure, 1996-98, NCES 2003-153 (2002),
http://1.usa.gov/L3KHT6. This, in turn, gravely
impacts career opportunities: those who drop out of
college fare little better on the job market than those
who never attended college at all, with an
unemployment rate almost twice that of bachelor’sdegree
holders. See Bureau of Labor Stat., Earnings
and Unemployment Rates by Educational Attainment
(2013), http://1.usa.gov/19WNJ5H. Even employed
college dropouts earn on average 34% less than their
degree-holding contemporaries. Id.
Affected students, therefore, are ideally situated
to help the Court “loo[k] beyond broadly formulated
interests” in assessing the regulations, as required
by RFRA’s compelling-interest inquiry. Hobby Lobby,
134 S. Ct. at 2779 (quoting Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,
431 (2006)) (alterations in original).
Students and other affected women are also bestpositioned
to explain how and why alternatives
proposed by religious objectors may compromise
women’s access to contraceptives. For that reason,
the issue of “least restrictive means” has been and
would be briefed more thoroughly and with greater
specificity here than in other cases. See C.A. Does
Br. (Doc. No. 34) at 36-41. For example, the students
have cited numerous studies concerning how cost
and logistical barriers impede women’s access to
preventive services. Id. at 37-38. One such study 24
found that imposing a relatively minor logistical
barrier to the use of oral contraceptives—dispensing
them every few weeks rather than providing an
annual supply—resulted in a 30% increased risk of
unintended pregnancy, and a 46% greater chance of
obtaining an abortion. Diana Greene Foster et al.,
Number of Oral Contraceptive Pill Packages
Dispensed and Subsequent Unintended Pregnancies,
117 Obstetrics & Gynecology 566, 566 (2011),
http://bit.ly/1ebyZRQ. Another study cited by the
students showed that even minor cost barriers—
raising the cost of a condom from 0 to 25 cents—
decreased by 98% the number of condoms
distributed. Deborah Cohen et al., Cost as a Barrier
to Condom Use: The Evidence for Condom Subsidies
in the United States, 89(4) Am. J. of Pub. Health 567,
567 (1999), http://1.usa.gov/1b1Q1gV. Information of
this kind may be of particular help to the Court,
given its emphasis in Hobby Lobby on the leastrestrictive-means
analysis. Cf. 134 S. Ct. at 2780-83.
The students also have argued that granting the
religious exemption that Notre Dame seeks would
come at the expense of affected women and
effectively grant a religious veto over the flow of
governmental benefits to third parties, in violation of
the Establishment Clause. C.A. Does Br. (Doc. No.
34) at 46-55. The government does not vigorously
press the argument regarding third-party harm. See
Hobby Lobby, 134 S. Ct. at 2781 n.37 (noting
government only “appear[ed] to maintain” the
relevance of third-party harm). Yet, that question 25
may play an important role in evaluating the
nonprofit accommodations. Cf. id. (holding that the
First Accommodation presents a viable less
restrictive means because it avoids “any detrimental
effect on any third party” id. at 2787 (Kennedy, J.,
concurring) (concluding that the First
Accommodation presents “the means to reconcile
those two priorities . . . at hand” in weighing
reproductive rights of women against religious rights
of institutions).
Finally, the students have argued that the
regulatory scheme does not impose a substantial
burden on Notre Dame’s religious exercise because
nothing prevents Notre Dame from simply
discontinuing its health-insurance plans. C.A. Does
Br. (Doc. No. 34) at 14-25. While the Hobby Lobby
Court noted that failing to offer health insurance
would likely “entail substantial economic
consequences” for an employer, including the
imposition of a $2,000 per-employee tax, see 134 S.
Ct. at 2776, that conclusion is of marginal relevance
to a student insurance plan, which may be
discontinued without payment of any tax. Cf. C.A.
Univ. Opp. to Mot. to Intervene (Doc. No. 17) at 3-4
(University concedes that the law leaves Notre Dame
“the choice to provide or not provide a student health
plan”
Although the United States undoubtedly has the
interests of affected women in mind, its defense of
the challenged regulations is necessarily tempered 26
by strategic considerations and institutional
concerns not shared by affected women.7 For
example, the government appears to have made a
strategic decision to limit its citation of social-science
data to the contents of the IOM report discussed
above. And the government is understandably
disinclined to press Establishment Clause claims
that, if successful, would potentially subject a federal
statute to constitutional challenges in the future.
Similarly, the government predictably has avoided
arguing that those challenging the regulations at
issue may avoid the professed burden on religion by
discontinuing their insurance coverage, see Hobby
Lobby, 134 S. Ct. at 2776, as that would run counter
to the government’s overarching policy goal of
encouraging employers and other institutions to
continue to offer health insurance.
Black Mamba
Member
BTW, I'm done arguing King now. If you make a big response, chances are I won't reply.
Not covered under FOIA, which is weird.
Metaphoreus
This is semantics, and nothing more
Regarding (1) and (10), you're simply incorrect to say that Pennhurst is a doctrine based on empirical evidence. I can cite Arlington to demonstrate that it's not, and your baseless assertion that Arlington doesn't count because they just could decide the case without evidence just isn't persuasive. If that were the case, you'd think they'd mention that somewhere in the case, wouldn't you? Yet there's nothing. If that's how Arlington is supposed to work, the Court did a fine job of hiding that fact.
I refer you back to my earlier post because it's clear you didn't understand it. The Pennhurst test asks whether the statute unambiguously imposes a given condition, and it answers that question by reading the statute, not deposing politicians. At least you finally admit (in (2)) that your argument isn't actually supported by existing case law. But for your argument to carry any persuasive authority, you'd need to explain why it's logical to extend Pennhurst to cover this sort of case. Your approach to this so far has been to deny the basis on which Pennhurst was decided (see (5)), which is a bad start, to say the least.
To answer your question in (1), a state official who is deciding whether to accept federal funds and the conditions attached to them can most certainly be misled by the federal government, or misread a clear statutory provision and so misunderstand the statute's terms. But that fact is irrelevant to Pennhurst.
I'd be interested in seeing your research, if it still exists. It goes without saying that stare decisis is not an iron rule when a court is faced with potentially overturning its own precedent. But I'd be surprised to learn that it's as flimsy as you claim.
I'm comparing the employer mandate under the HELP bill with the exchanges under PPACA. Under the HELP bill, the employer mandate was not a provision of federal law, but to be enacted by states. If a state failed to, credits were permanently withheld from the HELP bill exchange for that state. That's analogous to how the challengers portray the PPACA exchanges and credits.
I think it's remarkably easy to build a case that state primacy was a goal of the ACA. First 1311 directs that states establish an exchange using mandatory language. Second, no federal exchange is to exist unless a state fails to establish the "required Exchange." Third, money was set aside for grants to states to assist them in establishing an exchange, yet none was set aside for the federal exchange to be established. Fourth, the Medicaid expansion was an expansion of Medicaid--i.e., a state-adminstered federal program. So how do you propose we distinguish which was the true goal of Congress: to increase coverage or to increase coverage principally through state action? This is the "ladder of abstraction" that purposivism invites judges to climb. They decide what outcome they want (consciously or subconsciously) and select the framing of purpose that lets them reach it.
The better approach is to read the statute, and determine what it means based on what it says, not based on a vague notion of purpose.
After I broke my promise about not discussing it further with you and everything? For shame.
The "contract" in the ACA isn't just about building Exchanges or not though. It's the entire interdependent framework of various reforms to health care delivery, particularly the health insurance market, which States are forced to accept. The FFE States didn't reject any offer, they accepted one to still receive federal money without building an Exchange. Pennhurst is overkill for defeating the challenger's interpretation, the penalty imposed on non-complying States is unconstitutionally vague.
Why? Post after post after post of your analysis and banter over this poor excuse of a lawsuit and you still can't say with confidence how you think this will go?
I think it will be 5-4 either way, with Roberts or Kennedy either saving the day or throwing the health insurance industry into chaos and negatively impacting the lives of millions. Scalia is a troll, Thomas follows the herd because he's a fool and has no place on the court, and Altio is Alito. I'm leaning towards the government losing because the fact they are taking up this case after it being nearly universally rejected elsewhere is very concerning.
If you made me pick, I'd agree with you in this case. I know a lot of folks roll their eyes at theories about how the Roberts court likes to seek political balance in how they rule for high-profile cases, but to me they've gotten rather predictable at this point. Conservatives will have a major ruling to crow about on one day, and then on the following day, liberals will be celebrating another ruling.
benjipwns
Banned
If Kennedy goes Roberts will, so it'd be 6-3 for government and 5-4 against. I can't imagine Roberts NOT writing this decision.
Thomas never follows the herd and is arguably the most independent thinker on the court with Sotomeyer a close second. (He's been on the court longer so give her time.) If only we could get some of her skepticism of authority figures to rub off on him. (Maybe put a pubic hair on his Coke or something.)
Now if you're talking about public speaking it's RGB and Scalia hands down. Especially Scalia.
Alito seems blech. He even looks boring.
benjipwns
Banned
Thank you, Dr Carson! Good work!
Hey, Voters: look at Ben jingling the keys! Look at 'em!
*whispering* don't look at that email thing over there. It's booooring.
I'd expect Roberts to go in favor before Kennedy. And he did not side with Roberts last time, but we might get a surprise. Best case for those against King is Roberts + 4, dream scenario is Kennedy joining them. He wanted to strike down the entire law last time though so I doubt that. Then again Roberts might be more in line with his "Medicaid optional" mode of thinking and Kennedy could side with the liberals with Chevron deference. I just don't know.
Thomas is a dummy, I get the impression a lot of his opinions are basically "yeah, me too."
Alito gives me the creeps.
Coriolanus
Banned
Might wanna research him a bit, chief.
benjipwns
Banned
Which means you're unfamiliar with them, because almost he never writes those kinds of opinions, half the time he concurs it's only in part.
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/17/hes-no-clone/
http://www.libertylawsite.org/liber...l-justice-thomass-legacy-in-law-and-politics/
http://www.huffingtonpost.com/2011/11/21/clarence-thomas-antonin-scalia_n_1105776.html
This isn't to say he's right or amazing (though I probably agree with him more than the other justices if only because I agree with him at least 25% of the time) but as I said with Sotomeyer he's one of the most independent thinkers on the Court. Both of them regularly carve out their own path, even if to the same end result as their "wing" of the court, and use rather unique citations and rhetoric.
Kagan and Alito by comparison write mostly standard lawyer speak, maybe because they're new or their past experience. RBG and Kennedy have their own voices at this point in their lives but their paths to their conclusions you will know from how they voted.
Now, I might put Roberts up there but I think of him more as crafty, a strategist, which isn't new for Chief Justices, he's slipped right into that role with some of the more famous ones. His opinions feel more like backtracking from his result instead of heading towards it.
jamesinclair
Banned
Wheres that socialism happening gif when I need it?
This is really need around the country.
You have areas like NYC where they either raise the fare on everybody, or people propose distance based fares - which hit the poor the hardest,
http://www.bbc.com/news/31699615
This is really need around the country.
You have areas like NYC where they either raise the fare on everybody, or people propose distance based fares - which hit the poor the hardest,
AdventureMike
Member
I'd love that to happen here in the DC Metro area. There are people on fixed incomes and don't make much money in our area that are being squeezed when Metro annually raises prices now. When I started working downtown in 2009/2010, my fare during rush hour was $3 and change (somewhere around $3.50 I think) each way. Now it's $5.90 each way during rush hour and then $5.10 for parking. Almost $17 a day just to go to work.
jamesinclair
Banned
DC is especially bad because the fares are set assuming people get a pass from their employee.
True for middle management federal types.
Untrue for everyone else.
jamesinclair
Banned
cartoon_soldier
Member
I don't feel good about today. I think Roberts will side with conservatives and kill the subsidies
9 million people to get fucked over.
9 million people to get fucked over.
benjipwns
Banned
cartoon_soldier
Member
I know that
T
thepotatoman
Unconfirmed Member
Sounds like thus far, Kennedy has said he sees a "serious constitutional problem" with the plaintiff's argument regarding putting financial pressure on states to do things, and Roberts has been silent. Otherwise split along party lines.
That said, I would definitely say the tone of oral arguments aren't always a great predictor of outcome.
That said, I would definitely say the tone of oral arguments aren't always a great predictor of outcome.
I don't even think the justices sympathetic to the ideological argument against Obamacare will want to endorse the challenger's argument. No one knows or cares about who the fuck Michael Cannon and Jonathan Adler are, so shaming their professional reputation doesn't matter. But a SCOTUS justice? Even the GOP bubble has it's breaking point.
Coriolanus
Banned
Feels superfluous but by all means feel free to create one. Give it a catchy name like THE DEATH OF OBAMACARE or something.
If you get a replacement shouldn't the original get disabled...
benjipwns
Banned
If anything a King thread would get Meta some new friends since he's already crushed everyone in this clique.
Why do you hate the poor?
NYCmetsfan
Banned
Kennedy sounded like he wasn't going to strike anything down.
Roberts said nothing
The liberals are going to uphold and kennedy seemed to be very much raising concerns about coercion
Yup, that seems to be the general reading. Either too close to call or the government probably has it.
Also:
Ignatz Mouse
Banned
I think we're well past due for a separate thread on the topic.
I don't how Roberts could possibly vote with the conservatives and still live with himself after he could have stopped the subsidies completely before this went into action. He would wreck the economy and create chaos in healthcare.
I bet there are zombie threads available. This is an important issue for millions of people in America. It is completely absurd that some libertarian action group has picked a couple of people from the middle of nowhere in order to challenge the law. You look at these people and one of them really hates Obama, Muslim Marxist Kenyan level at that. The other one doesn't even seem to understand what is going on.
That's friggin' rich.
If we get two big left-leaning rulings this June.. the howls of anger will be extraordinary.
BertramCooper
Banned
Yeah, going by SCOTUSblog's account, I'd be pretty damn surprised if Kennedy votes to strike down the subsidies.
Roberts' silence is interesting. Perhaps he wants to avoid getting tangled in the politics of the ACA any further. Wonder if he'll author an opinion.
My guess is 6-3 to maintain the subsidies.
Roberts' silence is interesting. Perhaps he wants to avoid getting tangled in the politics of the ACA any further. Wonder if he'll author an opinion.
My guess is 6-3 to maintain the subsidies.
In all other western or developed countries this wouldn't even be an issue since all governments would just make the correction should the Court rule that way. American conservatives are the only ones who would deny health care from hard working citizens.
It is not only the moral choice but also a very utilitarian approach. When you help people with preventative care, they will live longer and be more productive - thus society profits. For some reason this undeniable fact escapes a lot people.
It is not only the moral choice but also a very utilitarian approach. When you help people with preventative care, they will live longer and be more productive - thus society profits. For some reason this undeniable fact escapes a lot people.
I really couldn't agree with this more.
I didn't watch the orals, but from the various summaries, there seem to be some interesting threads running through the argument. Most notably, the coercion argument is a pretty clear callback to the original ACA opinion, in which Roberts wrote the opinion deliberately to preserve the ACA while still carving out a victory for the conservatives in the form of limits on the power of the federal government. It's a signal that there might be a similar split-the-baby argument here with a 6-3 that enlarges upon the idea that the federal government cannot coerce the states with conditional revenue.
You'll note that Verrilli isn't willing to sign onto this argument because his primary responsibility (for some reason) seems to be preserving an expansive view of the power of the federal government and the executive branch.
Meanwhile, Ginsberg also wants to float the idea that the whole case can go for lack of standing and we can avoid getting to the merits at all, which would theoretically keep SCOTUS's profile low.
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