Last year, in July, House Speaker John Boehner secured party-line passage of a resolution authorizing the House to sue President Barack Obama for “changing the health care law without a vote of Congress, effectively creating his own law.” At the time, legal experts across the ideological spectrum snickered. A former House legal counsel testified that “there is no standing ... for anything remotely like” Boehner’s resolution, “and it is a bad idea for a Speaker to file such an embarrassing loser.” Democrats derided the gambit as a “political stunt,” and the media read it as a ploy by Boehner to divert rambunctious Tea Party members of his caucus from cranking up politically toxic presidential impeachment proceedings. But last week a federal district judge in D.C. granted the House standing to get its case against the Obama administration heard and decided in court.
Judge Rosemary Collyer, a George W. Bush appointee, agreed to resolve one of two claims in the House’s lawyers’ legal complaint: that Congress hadn’t enacted an appropriation to fund “cost-sharing” subsidies prescribed by the Affordable Care Act to help lower-income individuals and families pay for medical services, and that payment of such subsidies by the Obama administration constitute illegal expenditures—both the nearly four billion dollars already expended, and any payments to be made in the future. These cost-sharing subsidies complement, and are designed to work in tandem with, the tax credits to help pay insurance premiums that, as the Supreme Court upheld in King v. Burwell in June, are available nationwide on both state-established and federally facilitated exchanges.
Collyer conceded that “no precedent dictates the outcome” of the case. Indeed, there has never been a case in which the Court has allowed Congress, or individual members or sub-units of Congress, to seek judicial resolution of disagreements with the executive branch over how to interpret a law; were the precedents otherwise, disgruntled legislators could brand any disputed executive action or policy a violation of law (as the legislators interpret it), and dump the fight into the courts, rather than use the powers the Constitution provides to them as legislators. The fracas that Collyer agreed to take on is just such a routine interpretive dispute. Countering the House’s argument that no law specifically appropriated money to fund the cost-sharing subsidies, the administration’s briefs explain that the subsidies are properly funded under a provision prescribing permanent appropriations authority for certain types of government obligations, pursuant to that law and to the ACA. This provision is the same source used to fund the complementary ACA premium assistance tax credits. No one contests the legality of these payments for the ACA tax credits, even though there is no appropriations legislation specifically applicable to them.
Collyer’s decision smacks of an irrepressible yen to blow past applicable doctrinal barriers to congressional standing, to resolve what the White House termed “a garden variety dispute with the Executive Branch”: “The law is clear, Congress cannot try to settle in the courts.” To begin with, while her opinion devotes pages to repeating House lawyer Jonathan Turley’s no-specific-appropriation argument, she never once so much as mentions the law on which the administration’s argument principally depends, nor the administration’s reference to the interdependence of the tax credits and cost-sharing subsidies as an integrated statutory “plan.” The impression left, for a reader who has not actually read the briefs filed by both parties, is that the picture painted by the House’s lawyers is a fact, rather than one advocate’s construct—the only way to identify, let alone interpret, the actual legal provisions relevant to the case.
Having thus given the substance of the dispute this one-sided mischaracterization, Collyer takes a further leap, asserting that it is not a dispute about statutory interpretation at all. To justify this contention, she unfurls a legal argument that is not only, by her own concession, entirely novel, but amounts simply to relabeling. The argument neither changes the actual character of the case nor helps her take it out of the realm of interbranch squabbles heretofore off-limits for the federal courts. She contends that the House’s claim is about funding the ACA subsidies “not in violation of any statute, but in violation of ... the Constitution,” which bars writing checks on the Treasury except “in Consequence of Appropriations made by Law.” But, transparently, this distinction between statutory and constitutional disputes is, certainly in this case, one without a difference; the House’s claim that the Obama administration acted unconstitutionally simply tacks on a gratuitous—and logically weightless—postscript to its argument that funding the subsidies lacks statutory authorization. As the White House observed, this is indeed a garden-variety dispute about what the relevant statutes mean.
In a similarly slight-of-hand vein, Collyer attempts to circumvent the bedrock standing law rule that, to have a grievance heard by a federal court, a plaintiff must show a “concrete and particularized injury.” She says that the House’s grievance alleges a “concrete and particularized” institutional injury to the House, because the Obama administration’s allegedly unauthorized spending nullifies Congress’ constitutionally prescribed control over government spending. This “injury” uniquely damages the House, she asserts, because the Constitution provides that revenue-raising bills “shall originate in the House of Representatives (while it empowers the Senate to amend any such bills).” But this claim is obviously inaccurate, and, just as clearly, does not add up to an “institutional injury.” The administration’s acting on its interpretation has not incapacitated or left the House without remedies. On the contrary, the House remains free to deploy any of the means used since the Founding to get its way in such tugs of war with the executive branch—overriding an administration with new legislation or pressuring through the infinite array of above-board and backroom leverage mechanisms at its members’ disposal. In short, the answer for Boehner’s purported beef about ACA subsidies is business-as-usual—not an unprecedented relocation of much of that business to the federal courts.
Legal experts, including ACA opponents like Case Western Reserve law professor Jonathan Adler, have argued that the new and questionable ground broken by Collyer’s decision merits “immediate” appellate review—which the Justice Department has already announced it will seek. If more evidence were needed, Boehner himself provided the clincher the day after the decision. Last Thursday, Politico reported that the speaker “might sue President Barack Obama again,” this time to challenge alleged non-compliance with reporting provisions of the legislation prescribing congressional review of the Iran nuclear agreement. While Republicans lack the votes “to stop the Iran agreement,” Politico explained, “a lawsuit is one way for Boehner to prolong the fight” over it, who himself called that “an option that’s very possible.” Few if any appellate judges seem likely to favor this prospect, opened by Collyer’s make-over of congressional standing law, of becoming pawns in the sort of political games that led House Republican leaders to bring the current lawsuit, and now to target copycat litigation as a tactical “option.”