Regulators, mount up

Kawa Orthodontics, LLP v. Sec'y, U.S. Dep't of the Treasury, No. 14-10296 (11th Cir. Dec. 2, 2014).

This case presents the rather surprising spectacle of a business asking to be regulated. 

Kawa Orthodontics spent time and money figuring out how to comply with the Affordable Care Act’s employer mandate—its requirement that certain employers have to offer certain sorts of health insurance to their employees. But then the Treasury Department announced that it would put off the mandate for one year. Kawa Orthodontics then sued the Treasury, asking the district court to enjoin the Treasury from putting off the mandate for a year.

A majority of this Eleventh Circuit panel says that Kawa doesn’t have standing to pursue its lawsuit. It’s not asking the Treasury to compensate it for the time and money it spent trying to comply with a mandate that was later deferred. It’s just asking for the mandate to be reinstated, which won’t bring back the time and money it spent. A dissent disagrees, arguing that reinstating the mandate would give Kawa real relief—it would mean that Kawa “would not have unnecessarily spent the money before it needed to.”