Jonathan Cohn talks about a warning from the Courts to Obamacare opponents...

From today's piece:

At the moment, the case against the law in the hands of the appellate courts. Three sets of cases are pending, each one before a different Circuit Court. Last week judges from the Fourth Circuit, which sits in Virginia, heard the first of these cases. Early next month, judges from the Sixth Circuit, in Cincinnati, are supposed to hear the next one.

The Fourth Circuit judges, all of them Democratic appointees, seemed openly skeptical of arguments that the Affordable Care Act is unconstitutional. But the Sixth Circuit panel will include two judges appointed by Republicans and just one appointed by a Democrat. Most experts figure they will be more sympathetic to the lawsuit challenging the law's constitutionality or, at least, to the parties bringing it.

And maybe they will be. But, on Thursday, the judges sent a letter to lawyers from both parties. In it, they asked the lawyers to write briefs on three procedural questions. Two of them are about "standing" and "ripeness." (Or at least what I understand those concepts to be.)

The first question asks whether the plaintiffs can show they have suffered an injury or face an "imminent injury," even though the law doesn't take effect until 2014. The other asks for details on the penalties for violating the individual mandate and the extent to which they would actually cause "injury and hardship." As legal expert Timothy Jost and journalist Timothy Noah have pointed out, the law specifically prohibits the federal government from using criminal penalties to enforce the insurance requirement.

These questions are critical because, if the plaintiffs can't demonstrate that the Affordable Care Act has caused or will "imminently" cause them hardship, then they arguably have no right to challenge the law. And the Sixth Circuit judges don't seem to be the only ones pondering these issues. The Fourth Circuit judges, in Richmond, made a big deal about this in last week's oral arguments.