By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY
Sept. 10, 2015 7:46 p.m. ET
When the House of Representatives filed a lawsuit last year contesting President Obama’s implementation of ObamaCare, critics variously labeled it as “ridiculous,” “frivolous” and certain to be dismissed. Federal District Judge Rosemary Collyer apparently doesn’t agree. On Wednesday she ruled against the Obama administration, concluding that the House has standing to assert an injury to its institutional power, and that its lawsuit doesn’t involve—as the administration had asserted—a “political question” incapable of judicial resolution.
The House lawsuit involves two core allegations. First, the House contends that the executive branch has spent billions of dollars on ObamaCare’s “cost-sharing” subsidy, even though Congress hasn’t appropriated money for it. The House says the administration violated Article I, Section nine of the Constitution, which declares: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations Made by Law.”
Second, the House asserts that the administration has failed to faithfully execute ObamaCare’s employer mandate by issuing regulations lowering the percentage of employees who must be offered insurance and delaying the mandate’s effective date for two years.
The most specious but widespread objection to the lawsuit was that Congress, as an institution, is incapable of suffering an injury serious enough to establish “standing” to sue. Critics argued that, because the Supreme Court in Raines v. Byrd (1997) denied standing to a group of six congressmen who sued President Bill Clinton over his use of the line-item veto, there is no such thing as legislative standing.
But Raines never foreclosed legislative standing; it merely denied standing to six disgruntled members of Congress who had lost a political battle with their own colleagues. Raines didn’t involve a claim of institutional injury. The House lawsuit, by contrast, was authorized by a majority vote and does claim an institutional injury. In the words of Judge Collyer, the “plaintiff here is the House of Representatives, duly authorized to sue as an institution, not individual members as in Raines. . . . That important fact clearly distinguishes this case.”
Congress is not an institutional orphan, incapable of vindicating injury to its constitutional prerogatives. Indeed, just a few months ago, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court recognized that the Arizona legislature had standing to assert its claim that a state executive commission had usurped its power to initiate redistricting. Standing existed because the Arizona legislature was “an institutional plaintiff asserting an institutional injury.”
Judge Collyer ruled that the House has standing to pursue its appropriations-related claims, but not its employer-mandate-related ones. Regarding the former, she recognized that the “genius of our Framers was to limit the Executive’s power” by reserving to Congress exclusive control over the federal purse. In her words, “Disregard for that reservation works a grievous harm on the House, which is deprived of its rightful and necessary place under our Constitution.”
The Obama administration contended that Congress could remedy its appropriations injury via “the elimination of funding” for ObamaCare. But as Judge Collyer noted, the administration was “apparently oblivious to the irony” of this argument, since a failure to appropriate money is, itself, an elimination of funding. She concluded, “Congress cannot fulfill its constitutional role if it specifically denies funding and the Executive simply finds money elsewhere without consequence.”
While Judge Collyer correctly permitted the appropriations claim to move forward, she incorrectly concluded that “the Employer-Mandate Theory is fundamentally a statutory argument” that merely asserts that the administration is “misinterpreting” ObamaCare. She was mistaken in asserting that other, private litigants are “free to sue” over such misinterpretation. Several private plaintiffs have already tried to litigate these misinterpretations, and federal courts in both the seventh and 11th circuits have held that they, too, lack standing.
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.
If the “genius of our Framers was to limit the Executive’s power,” as Judge Collyer wrote, by reserving to Congress exclusive control over the federal purse, the Founders were equally inspired in giving Congress exclusive control over legislation and obligating the president to “faithfully” execute such laws.
“The power of executing the laws,” the Supreme Court emphasized in Utility Air Regulatory Group v. EPA (2014), “does not include a power to revise clear statutory terms that turn out not to work in practice.” If a law has defects, fixing them lies solely within Congress’s legislative power, not with the executive branch. Disregard for this aspect of congressional power—not merely its appropriations power—also amounts to a “grievous harm on the House” sufficient for institutional standing.
As for the Obama administration’s Hail Mary claim that the House lawsuit involved a “political question” that shouldn’t be taken up by the judiciary, disputes between Congress and the executive have been decided by the courts since Marbury v. Madison in 1803. As Judge Collyer put it, “the mere fact that the House of Representatives is the plaintiff does not turn this suit into a non-justiciable ‘political’ dispute.” You could almost say the administration’s claim was ridiculous, frivolous—and, as of Wednesday, resoundingly dismissed.
Mr. Rivkin is a constitutional litigator who has served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law.