Chevron and Auer undermine the rule of law.
Even after the Supreme Court’s lamentable decision in King v. Burwell, litigation over the Affordable Care Act and the administration’s creative implementation of the statute continues. Last week, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia held that the House of Representatives has standing to sue the executive (more precisely, Secretaries Burwell and Lew) over their decision to implement an ACA program with unappropriated funds. While it’s certainly a good thing to keep this excretion of a statute in litigation, from here to eternity, there are reasons to be nervous about Judge Collyer’s ruling.
The case involves, and how could it not, ACA subsidies and mandates. Under Section 1401, so-called “Premium Tax Credits” are paid directly to insurance companies, which then reduce the premium charged to the insured. Under Section 1402, Treasury pays “Cost–Sharing Offsets” to the insurers. The House contends that Section 1401 Credits are funded by a permanent appropriation in the Internal Revenue Code, whereas Section 1402 Offsets must be funded through annual appropriations. Congress has never appropriated any funds to make any Section 1402 payments. True to form, though, the administration has in fact made such payments. In so doing, the House says, administration officials “drew” money from the Treasury, in violation of Art. I Sec. 9 Cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law“). In addition to this “Non-Appropriation” claim, the House complains that the administration has failed to implement the ACA’s “Employer Mandate,” thus effectively “nullifying” that part of the statute.
Judge Collyer held that the House had standing with respect to the Non-Appropriation claim but not with respect to the Employer Mandate claim. The reasoning isn’t entirely clear. Parts of the opinion say that the first claim is constitutional and the second, statutory. Why that makes a difference for purposes of constitutional (Article III) standing is dubious. Besides, the Non-Appropriation claim is a constitutional violation only if the House is right about the statutory question. Yes, this is on a motion to dismiss, and so the court accepts the complaint unless it’s obviously a crackpot argument. And yes, the standing question is technically different from the merits inquiry. Still, it’s obvious at the front end that both parts of the case eventually turn on the interpretation of the ACA rather than the Constitution.
Another part of the opinion seems to say that some constitutional provisions—including the Appropriations Clause—travel with an implied institutional right of action; others, like the “vesting” of all legislative powers in the Congress, don’t. I don’t get that, either. In yet other parts of the opinion, Judge Collyer suggests that the Employer Mandate claim can be brought by other (private parties), whereas only the House can assert the “institutional” injury. In a Wall Street Journal op-ed, the plaintiffs’ lead attorney (David B. Rivkin) has insisted that this isn’t actually true: appellate courts have dinged private Employer Mandate suits for lack of standing. Either way, the distinction makes sense only on the presumption that when the executive goes bad, someone must be able to crank a challenge into the judiciary—per the authority of The Federalist, the “least dangerous” branch of government; and maybe the least dysfunctional. But that isn’t saying much.
Manifestly, what drives Judge Collyer’s half-loaf opinion is an attempt to keep the courts in the separation-of-powers game without opening the door to institutional lawsuits whenever some legislators feel that the executive has transgressed its authority or fallen down on the job. Judge Collyer makes that balancing act quite explicit, and she emphasizes that this case was brought by, and alleges an injury to, the House as an institution—as distinct from a complaint brought by individual legislators who mope about a dilution of their voting power, or something of the sort. On that basis Judge Collyer distinguishes Raines v. Byrd (1997), where the Supreme Court dismissed individual legislators’ challenge to a statutory line item veto for lack of standing. The judge is making distinctions with mighty thin reeds.
If there’s an injury here it affects the House and the Senate in equal measure. For obvious reasons, though, the Senate is not a party to this lawsuit. (Rule 19 dismissal—failure to join necessary parties? I’m only half kidding.) Nor is “the House” the actual plaintiff here. Sure: the House authorized the Speaker to file suit in federal court against the head of an Executive department or agency for “failure … to act in a manner consistent with that official’s duties under the Constitution and laws of the United States with respect to implementation of any provision of the Patient Protection and Affordable Care Act.” But everyone knows how that vote went. Once you pierce the institutional gossamer, this isn’t a separation of powers case or claim; it’s a separation of parties claim. Do we really want those disputes in the federal courts? If the partisan fronts here were reversed, would our opinion differ?
Behind that question looms an institutional elephant: the debility of Congress. This case, says the administration, isn’t justiciable: if Congress doesn’t like the Executive’s position, it has a million ways to fight back—for example, by withholding funding. That, not litigation, is the constitutionally envisioned scenario (Federalist 51, and all that). How ironic, say “the House” and Judge Collyer: withholding funding was “exactly” what Congress did here (emphasis in the opinion). But who says that checks and balances are one-shot or single-issue deals? How about refusing to fund any number of items that the administration and its constituencies care about?
The power of the purse: as Christopher C. DeMuth noted in a recent Engage piece, has fallen into disuse. With the support of both parties, Congress has fallen into the habit of writing blank checks and of authorizing agencies to create their own tax regimes. That, too, is an appropriations scandal. Granted: there’s still some value to having a court hold that the executive can’t spend non-appropriated funds (assuming this case survives a certain appeal and gets to the merits). Surely, though, there is a way to make that case without the aid of a district judge. There has to be. As Justice Robert Jackson observed in a somewhat different context: if Congress lets its powers slip through its fingers, there’s not a lot the courts can do about it.