The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When House Speaker John Boehner announced that the House of Representatives would file suit against the Obama Administration for its illegal implementation of the Affordable Care Act (ACA), most commentators dismissed the suit as political grandstanding. Judges are generally suspicious when it appears legislators are trying to re-fight political battles in the courts, and usually conclude that legislators lack standing to challenge the actions of the executive branch (or that such suits present non-justiciable political questions). Even those who acknowledged the strength of the House's substantive complaint—that the Administration lacked any legal basis for delaying and modifying the employer mandate— urged the district court to dismiss the case.
The House initially focused on the employer mandate delays. The employer mandate, as enacted, was to take effect on a date certain; as of Jan. 1, 2014, employers that failed to provide the requisite insurance coverage to their employees would be liable for penalties (deemed taxes by the Administration), whether or not the Administration chose to initiate enforcement actions against violators.
The substance of the House's argument was strong, but this was not the sort of claim courts had ever found justiciable. The only suits by legislators against the executive branch that had ever met with much success were those seeking to enforce subpoenas against executive branch officials (such as when the House Judiciary Committee sued Harriet Miers).
When the House suit was filed, however, it included an additional claim: That the Obama Administration was usurping the legislature's power of the purse by spending funds that Congress had refused to appropriate. Specifically, the House alleged that the Administration was making payments to health insurance companies to defray the costs of providing health insurance to low-income individuals under Section 1402 of the ACA even though Congress had denied the Administration's appropriation request.
The addition of this second claim appears to have made all the difference, for the district court in House v. Burwell concluded yesterday that the House—as a legislative body—had standing to challenge the Administration's expenditure of funds absent a proper legislative appropriation. Allowing such unilateral action by the executive, the court reasoned, would amount to a usurpation of core legislative authority and constitute a judicially cognizable injury to the legislative branch. Not so with the House's other claim, which the court found non-justiciable, in part because the House's alleged injury would no longer be redressable by a favorable court decision.
In reaching this conclusion, the court distinguished cases in which courts rejected the standing of individual legislators (such as Raines v. Byrd), and noted that the U.S. Court of Appeals for the D.C. Circuit had previously held that House committees had standing to seek to enforce subpoenas for information from the executive branch. The court also noted the Supreme Court's recent decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, in which a majority of the Court found the Arizona legislature had standing to bring its constitutional claim.
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 to appropriate the funds, 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.
As for what comes next, Bagley and I agree that this case would seem to satisfy the standard for immediate interlocutory review by the U.S. Court of Appeals for the D.C. Circuit, and I would think the Administration will seek such review. House v. Burwell presents a novel and largely unprecedented standing claim, arguably based upon novel and somewhat unprecedented assertions of executive authority in domestic policy. As such, it would be good to get this claim "squared away" sooner rather than later.