The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier this month a federal district court concluded that the House of Representatives has standing to sue the executive branch for the illegal expenditure of unappropriated funds. In House v. Burwell, the House claims that the Administration has paid subsidies to health insurance companies that Congress refused to appropriate. (The House also claims that the Administration rewrote the Obamacare employer mandate, as do some Obamacare supporters, but the district court rejected standing for that claim.) The key question now is whether the court will allow an immediate appeal of the standing question or whether it will first proceed to the merits.
In today's Post, Irvin Nathan of Arnold & Porter, who previously served as general counsel for the House, argues that the district court got it wrong and should be subject to immediate appeal. While I may agree with Nathan's bottom line—I'm skeptical of the House's standing and believe the case warrants immediate appeal—I think he makes some bad arguments against the House's standing to sue in House v. Burwell.
In this dispute, the House claims that subsidies the executive branch is paying to insurance companies to provide health insurance for low-income individuals have not been properly appropriated by Congress. Not only is it unclear how the House has been injured by these payments (a concrete injury being a prerequisite for any lawsuit in federal courts), but, more important, the claim can more appropriately be handled by Congress. The courts have no particular facility with the arcana of the appropriations process and have less authority and ability to remedy the alleged problem than Congress does.
But appropriations for future payments are peculiarly the province and responsibility of Congress . . . . [T]he remedy lies within the power of Congress, precisely as the framers of the Constitution intended. The two houses of Congress are quite able to prohibit (or permit) future payments of these subsidies. That is a far more democratic way to deal with this critical issue of public policy.
The problem with this argument is that it elides the substance of the House complaint. The House's claim is that it has already prohibited the expenditure of these funds by refusing to make the appropriation in response to the Administration's initial request and that the executive branch deliberately spent the money anyway. To say that the House should not have standing because it could do what it claims to already have done is to sidestep the relevant question.
When conducting the standing analysis, courts are required to assume the truth of the plaintiffs' assertions. The standing question is whether the plaintiffs have suffered a legally cognizable injury-in-fact that was caused by the conduct they seek to challenge and that would be remedied by a judgment in their favor if the law and facts are as the plaintiffs allege. So, in this case, the standing question is whether the House would have suffered a sufficient injury if, as the House has alleged, the administration chose to spend money that Congress expressly refused to appropriate.
Framed this way, I think the standing question is closer than most commentators have acknowledged. If, as courts have held, individual committees or houses of Congress have standing to force the executive branch to comply with subpoenas, why do they not have standing to prevent the expenditure of unappropriated funds? The power of the purse, much like the power to conduct oversight, is one of the legislative branch's most basic means of checking executive power (short of impeachment and removal). If one (oversight through information requests) can be enforced in courts, why can't the other? Nathan has no real answer. To say that Congress can refuse to spend the money is no more compelling than to say that Congress could issue another subpoena. In each case the relevant question is whether Congress (or a subset thereof) may go to court when the executive branch refuses to comply.
Again, I am not convinced there should be standing here (and I'm open to the possibility that the subpoena cases are wrong), but this is the claim opponents of the House suit must answer. Calling upon the House to do what it claims to have already done does not cut it.
Opponents of the House lawsuit are not the only ones making bad arguments. While I believe the House's arguments for standing are stronger than many commentators have acknowledged, I don't think they're strong enough, and some proponents of the suit have made bad arguments in defense of the House lawsuit.
One particularly bad argument in favor of finding that the House has standing is that if the House cannot sue, no one can sue. For instance, David Rivkin and Elizabeth Price Foley have suggested that the House must be able to sue over the Administration's unilateral appropriation of subsidy funds and rewriting of the ACA's employer mandate provisions because private litigants cannot. "When neither Congress nor private litigants have standing to challenge an executive's unilateral rewriting of a statute, the executive possesses a dangerous, unchecked legislative power," they warned in their most recent Wall Street Journal op-ed (alternative link here).
That the House must be able to sue because others cannot may make for good op-ed fodder, but it is a terrible argument for Article III standing. Either a given plaintiff—in this case the House of Representatives—can satisfy the requirements of Article III standing (injury-in-fact, fairly traceable causation and redressability) or it cannot. If rigorous application of this test means that no one can sue, so be it. The strength of a standing claim is not dependent upon the availability of alternative litigants with stronger claims.
Going all the way back to Marbury v. Madison, it has been understood that not every legal conflict should be resolved in federal court. So, for instance, courts have long held that taxpayers lack standing (as taxpayers) to challenge the lawfulness or constitutionality of federal spending programs, leaving such fights to the political process. Most fights between the legislative and executive branches should be resolved politically as well (a point Michael Greve makes with regard to House v. Burwell here).
To conclude that the House lacks standing here does not mean that the legislative branch lacks options. There are even ways that Congress could seek to get questions like those posed in House v. Burwell before federal courts. Many federal statutes contain provisions authorizing private lawsuits against executive branch lawbreaking. Such citizen suits are often quite effective—sometimes more effective than direct legislative action—and often satisfy the requirements of Article III standing. To address the problem of illegal expenditures, for instance, Congress can authorize private whistleblower suits and offer bounties for successful claims, as it has in other contexts. Such approaches may even be preferable to direct action by the legislature. Courts typically have an easier time getting the executive branch to cooperate than does Congress. The relative success of Freedom of Information Act suits against the State Department with the fecklessness of congressional oversight is a case in point.
In the end, I suspect the House lawsuit against the administration will—and should—fail (as I predicted here). Nonetheless, the legal questions are closer than many recognize, and many of the standing arguments made don't confront the real issues. We'll see whether the courts agree.
[For more on current standing issues, including those involved here, see this Federalist Society panel in which I participated last year.]