Don't put those signs away yet.
Last week, in a
major departure from judicial precedent, Judge Rosemary Collyer, a George W. Bush appointee, said that the House of Representatives has standing to sue the president over what is essentially a routine disagreement between the legislative and executive branches. At issue are cost-sharing subsidies that work in tandem with premium subsidies to help low-income Obamacare enrollees afford not just health insurance, but health care. The administration pointed out in its briefs that a provision of the law allows for permanent appropriations authority for certain types of government obligations, including these cost-sharing subsidies. House Speaker John Boehner eventually disagreed, after much grasping for
something to sue Obama with, to punish him and try to divert the energy that was building among his problem children who were clamoring for impeachment over immigration executive actions.
That's territory that federal judges normally are not inclined to venture into, territory that does not bode well for the future. How did she get there? By considering just one side of the argument.
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.
She went further to make the ridiculous claim 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's constitutionally prescribed control over government spending," and that this somehow falls out of the realm of the regular remedies the Congress has—passing corrective legislation. Which it doesn't. Which means there really isn't a role for the courts here.
The decision will be appealed by the Justice Department, and that can't happen too soon since Boehner was already emboldened by this win. Now he's talking about suing over Iran. This needs to be stopped.