A district court in Washington, DC ruled Wednesday that the House of Representatives has standing to bring a lawsuit alleging that the Obama administration is spending federal money to finance the ACA, absent a congressional appropriation. As I’ve explained, the stakes of the lawsuit are high—not as high as King v. Burwell, but nothing to sniff at, either.
The decision is not entirely unexpected. Judge Collyer signaled at oral argument that she was inclined to find that the House had standing. In her view, the House has an institutional interest in preserving its constitutional power of the purse. Whenever the president violates the Appropriations Clause, he gores the House’s constitutionally protected interest. In the judge’s view, that’s enough for a federal lawsuit.
But here’s the thing. 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 routinely rejected legislative 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 alleges a violation of Congress’s constitutional authority to make laws.
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 that Congress enacts.
At times, Judge Collyer’s opinion can be read to suggest that standing rules should be relaxed when it comes to the Appropriations Clause. But why should that be? Many decades ago, the Supreme Court crafted a special standing rule for Establishment Clause challenges to tax statutes. But the Court in recent years has all-but-abandoned that provision-specific approach: “To alter the rules of standing or weaken their requisite elements would be inconsistent with the case-or-controversy limitation on federal jurisdiction imposed by Article III.”
For these reasons and others, I’m pretty confident that the court of appeals won’t let the judge’s decision stand. But it’s hard to know how soon it’ll get its hands on the case. Because Judge Collyer’s decision doesn’t finally resolve the House’s lawsuit, the government doesn’t have the right to take an immediate appeal.
The government can, however, ask Judge Collyer to certify her order under 28 U.S.C. §1292(b). Such a certification is appropriate, the statute says, when an order involves “a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” If the court of appeals agrees that the judge’s order meets that standard, an appeal could proceed immediately.
If any case meets the §1292(b) standard, it’s this one. Accepting Judge Collyer’s order would mark an unprecedented expansion of judicial authority into interbranch food fights. The judge herself acknowledged that “no case has decided whether this institutional plaintiff has standing on facts such as these.” And getting the standing question squared away could lead to the immediate termination of this misbegotten lawsuit.
We’ll see whether Judge Collyer sees it the same way. In the meantime, hold onto your hats. We’re in for another wild ride.