Walter Dellinger, a former Solicitor General of the United States, has a compelling op-ed in the Washington Post about House of Representatives v. Burwell, the latest effort to maim the ACA in the courts. Read it. He makes a quick, convincing case for why the House lacks standing to sue. (I made a similar argument when the suit was filed.)
In the lawsuit, the House argues that Congress has not appropriated the money for the ACA’s cost-sharing reductions. If you buy a health plan on an exchange and make less than 250% of the poverty level, those reductions shield you from the full cost of high deductibles and other out-of-pocket expenses. Eliminating the payments that cover those reductions would create an enormous mess.
But why should the House be allowed to sue at all? A motion to dismiss is pending before a district court in DC, so the question is urgent. Says Dellinger:
What is missing from the case is a legal injury to the House that would provide the basis for a lawsuit. No matter how strongly you and I might disagree with how a law is being interpreted and administered, we can’t bring a lawsuit unless we can show a personal legal injury. The House should be treated no differently. Here, neither the House nor its members stand either to profit personally or to suffer personally from how the law in question is administered.
At the center of the lawsuit is a dispute over whether the ACA links the cost-sharing reductions to an existing appropriation. In other words, it’s a fight about the meaning of statutes, much like King v. Burwell. Again, Dellinger:
The House says that it is suing to protect its appropriations authority. But Congress could make the same argument about any dispute over the meaning of a law, claiming that it is suing to stop the president from unilaterally overriding Congress’s law-making authority. Accepting the House’s position here means opening the door to lawsuits whenever Congress and the president disagree over what a law means.
This last point is critical, and the House has no good answer to it. Congress and the president clash over the meaning of statutes all the time. But they don’t hash out those disputes in lawsuits. They instead work it out between themselves, using the powers that the Constitution assigns to them.
We live in a democracy, and, as Dellinger notes, that means that “disputes between the branches about the proper meaning of law are best resolved by those elected by the people.” And Congress—the people’s chief representative—has lots of tools at its disposal to bring the president to heel. It can pass a new law. It can launch an investigation. It can thwart other administration objectives. It can even move to impeach. These options may not be politically feasible. But that just means Congress won’t use its power, not that it lacks the power to respond to perceived executive infractions.
What the House can’t do—and what, in a democracy, the courts can’t allow it to do—is convert every political dispute into a federal case. As I’ve said before and I’ll surely say again, this misbegotten lawsuit should be dismissed.
