Outside the Beltway

Federal Judge Allows Part Of House Lawsuit Against Obama Administration To Proceed

A Federal Judge has ruled that part of a lawsuit filed by the House of Representatives can go forward, but the legal battle is far from over.

Doug Mataconis · Thursday, September 10, 2015 · 12 comments

A Federal District Court Judge has ruled that part of a lawsuit filed by the House of Representatives against the Obama Administration can proceed forward, but the matter is likely to be appealed before the case goes to trial:

WASHINGTON — A federal judge ruled Wednesday that the House had the right to sue the Obama administration over billions of dollars in health care spending, a decision that poses a new legal threat to the health care law and gave congressional Republicans a victory in their claims of executive overreach by the White House.

In a significant defeat for the administration, United States District Court Judge Rosemary M. Collyer found that the House had made a compelling case that suing the White House was the only way to preserve its constitutional power to control federal spending and stop the administration from distributing $136 billion in insurance company subsidies that Republicans say Congress never approved.

“The House of Representatives as an institution would suffer a concrete, particularized injury if the Executive were able to draw funds from the Treasury without a valid appropriation,” Judge Collyer said in her 43-page decision.

She said the merits of the claim would be determined in a later proceeding. But her decision, if it withstands appeal, would mark the first time the House has been able to challenge an administration in court over its spending power.

Speaker John A. Boehner had pressed the lawsuit both as a way to attack the health care law and to underscore what congressional Republicans say is a pattern by the Obama administration of exceeding its authority on a range of issues including health care, immigration and pollution controls.

“The president’s unilateral change to Obamacare was unprecedented and outside the powers granted to his office under our Constitution,” Mr. Boehner said in a statement after the ruling. “I am grateful to the court for ruling that this historic overreach can be challenged by the coequal branch of government with the sole power to create or change the law.”

The judge dismissed another challenge to the law by the House, finding that the House’s claim that the Obama administration had improperly moved the deadlines for new employer requirements without congressional action did not rise to a level that justified a court fight.

The Justice Department, which had argued that the dispute amounted to a political disagreement that should be settled outside of the legal system, said it would appeal. The White House had anticipated that it could lose at the lower court level and said it expected the decision to be overturned.

“The law is clear that Congress cannot try to settle garden-variety disputes with the executive branch in the courts,” said Jennifer Friedman, a White House spokeswoman. “This case is just another partisan attack — this one, paid for by the taxpayers — and we believe the courts will ultimately dismiss it.”

Other legal experts warned the decision could have far-reaching consequences if upheld.

“This decision would be a radical expansion of the role of unelected judges to resolve disputes that are essentially political,” said Walter Dellinger, who served as acting solicitor general in the Clinton administration. “The Supreme Court has not gone down that road before, and I doubt they will go down that road now.”

Judge Collyer, who was appointed by President George W. Bush, said her decision would “open no floodgates, as it is inherently limited by the extraordinary facts of which it was born.”

But she allowed that her ruling broke new ground, since existing precedents provided no clear path.

This lawsuit was first authorized by Congress back in July 2014 and at the time it was limited to the issues regarding the Obama Administration’s decision to extend the deadline for employers to comply with certain provisions of the Affordable Care Act, principally in response to requests from businesses and the Chamber of Commerce. At the time, the lawsuit seemed to be legally dubious both because of the subject matter of the case itself and because of long standing rules regarding standing in Federal Courts that made it difficult if not impossible for Members of Congress or Congress itself to sue the President or Executive Branch department heads. On the practical side, the lawsuit as originally conceived never made sense because, essentially, the Republicans would be suing to ask a Court to force the President to enact the Affordable Care Act at a quicker pace and because, by the time the case was actually heard on the merits, it was probable that the extended deadlines would have passed anyway, making the case moot. Additionally, it has never been clear exactly what remedy a Court could fashion even if it did find in favor of the the Plaintiffs in the case. This would seem to be especially true given the fact that the amount of time that it would take to litigate the case made it likely that the Administration would have already implemented the contested provisions of the PPACA by the time the Court ruled and all appeals exhausted.

For the most part, the House lawsuit languished in the months after it was authorized in late July as we headed into the 2014 election seasons. By October 2014, there had been virtually no action taken on the case and the suspicions of many that the lawsuit was largely a political scheme for the midterm elections seemed to be confirmed. Finally, by late November, the House’s lawsuit was filed, but it took on a significantly different form than the what had been originally contemplated. The claims regarding the extension of the employer mandate were still there, but added on to the Complaint, and placed in the prominent role as the first five counts of the Complaint, were claims alleging that the Administration had spent money on aspects of the Affordable Care Act without authorization from Congress. The expenditures at issue involve some $175,000,000 in so-called “cost sharing” payments to the insurance companies by the Departments of Health and Human Services and Treasury to cover part of the cost of insurance to lower income Americans. The lawsuit alleges that this money was not authorized by Congress and is not authorized by any provision of the Affordable Care Act in violation of Article I of the Constitution which requires all expenditures to be authorized the Congress. This is a far stronger claim than the employer mandate claim that originally formed the basis of the Houses lawsuit, but even at the time it was filed many legal observers doubted that it could get past the traditional “Political Question” analysis that has barred Congressional lawsuits against the Executive Branch.

At the outset it’s worth noting that Judge Collyer, a George W. Bush appointee, did sustain the Federal Government’s Motion to Dismiss with respect to the claims in the Complaint related to the extension of the employer mandate. As she explains in her opinion, the Congressional interests asserted in that part of the lawsuit are simply too vague to warrant granting the House standing to challenge the extension. Additionally, as she correctly noted, the Courts have traditionally barred lawsuits by Members of Congress regarding what essentially amounts to the implementation of laws by the Executive Branch. For that reason, Collyer ruled that the House does not have standing to pursue its claims regarding the extension of the employer mandate, which is exactly what I anticipated when the lawsuit over the employer mandate was discussed back in early July of 2014.\

Judge Collyer’s ruling on the appropriations issue went the other way, of course, and appears to be the first time that a Federal Judge has ruled that a Member of Congress, or the body as a whole has standing to sue the Executive Branch. In ruling in favor of the Plaintiffs, Judge Collyer stressed the fact that the Constitution grants Congress the exclusive power to authorize appropriations and that, assuming the allegations are true, which is how courts proceed when assessing a Motion to Dismiss, they present a serious challenge to Congressional authority under the Constitution. Largely because of those unique facts, Collyer ruled that Congress does have standing to proceed with the lawsuit to protect its Constitutional prerogatives.

Professor Nicholas Bagely of the University of Michigan Law School is skeptical:

This may be a fight about the Appropriations Clause, but it’s also a fight over whether—as the administration claims—an existing statute actually appropriates the money. The House may think it doesn’t, but the House’s job is to pass statutes, not to file lawsuits to determine their meaning. That’s why the courts have routinelyrejectedlegislative efforts to sue the president over purported statutory violations. “Accepting the House’s position here,” as Walter Dellinger wrote a couple of weeks ago, “means opening the door to lawsuits whenever Congress and the president disagree over what a law means.”

Judge Collyer knows that such a radical position is untenable. To avoid it, she attempts to cabin her decision by saying that the House’s case is not really about a statute. Instead, it’s about “adherence to [a] specific constitutional requirement”—the Appropriations Clause. To underscore the point, the judge, in a separate portion of her opinion, holds that the House lacks standing to bring a separate challenge to the administration’s delay of the employer mandate. In contrast to the dispute over the Appropriations Clause, that challenge concerns “only the implementation of a statute.”

But the judge’s distinction—one she characterizes as “critical” to her decision—is incoherent. Both challenges involve the violation of a constitutional requirement. The challenge to the cost-sharing reductions alleges a violation of the Appropriations Clause. And the challenge to the delay of the employer mandate boils down to a claim that the president has violated his duty to “take Care that the Laws be faithfully executed.”

Likewise, both challenges concern the implementation of a statute. The Obama administration says that an existing statute supplies a permanent appropriation for the cost-sharing reductions. It also says that the IRS has been delegated the authority to temporarily delay the effective date of statutes.

As far as standing goes, there’s no difference at all between the two portions of the House’s lawsuit. If the House has standing to press its Appropriations Clause challenge, then getting into court is just a matter of dressing up a statutory claim in constitutional garb. It’s child’s play to recharacterize an alleged statutory violation as a transgression of the president’s duty to faithfully execute the laws.

Jonathan Adler is more sympathetic to Judge Collyer’s opinion:

I’ve always been skeptical of the House’s standing claim in this suit, but I’ve also maintained that it has more substance than many have been willing to acknowledge. Short of impeachment, the legislature has three primary means of disciplining or restraining the executive branch once constituted: oversight, appropriations and the enactment of self-executing laws. Courts have held that legislative bodies (though not individual legislators) have standing to bring suits enforcing the first of these checks. In this case, the House asserts standing to enforce the other two. This framing may not be enough to justify standing, but it does articulate a coherent theory of when judicial enforcement of legislative prerogative would be justified.

Professor Nicholas Bagley argues the district court has improperly intervened into a dispute over statutory meaning between the House and the Administration and that the judiciary has no place in the middle of such disputes. It’s a fair point (and one for which I have sympathy). The problem with the argument as framed this way is that it assumes what is at issue.

When a court considers a motion to dismiss for lack of Article III standing, the court must assume that the facts are as the plaintiffs allege. This is because the court is considering whether, if the facts are as the plaintiffs claim, the complaint is justiciable. In this case, that means the Court must assume that the Administration has, in fact, spent money without legislative appropriation and consider whether such facts would support the House’s standing claim. So it’s not enough to claim that the Administration just reads the statute differently. We must assume the statute is as the House claims, and evaluate the standing claim on that basis.

If the House lacks standing to protect the legislature’s appropriations power (and it might), this would be true no matter how egregious the executive branch’s action. The House claims the Administration asked for money for X, that Congress refused and that the Administration spent the money anyway. That’s not a simple dispute over statutory interpretation, and the question for the courts is whether the judiciary has any role in adjudicating such disputes — and, if not, whether the legislature has any remedy for such executive branch malfeasance short of the ballot box and impeachment.

The next step in this case is somewhat unclear at the moment.  The Administration has said that it intends to appeal the matter, which in this case would require asking Judge Collyer to certify her ruling for interlocutory appeal since it is not a final ruling on the case. Given the fact that she recognizes the somewhat unique nature of her ruling in the opinion, it seems unlikely that Collyer would deny this request before proceeding to the merits phase of this case. Assuming that happens, the matter will head to the Court of the Appeals for the D.C. Circuit, which may not even hear the matter until late this year and likely wouldn’t rule on it until some point in 2016. After that, of course, the next step would be the Supreme Court. That leaves us back where we were in July of last year, with a hearing on the merits in this case not likely to begin until there are mere months left in the Obama Administration at the most. Of course, Judge Collyer could deny the request to authorize an interlocutory appeal, which would speed up the hearing process somewhat, but even in that case this seems likely to be a case that will be around long after Barack Obama is retired.

Here’s the opinion:

House v. Burwell by Doug Mataconis