The House Lawsuit Against Obama; Full Of Sound And Fury, Signifying Nothing
The House of Representatives has filed its lawsuit against the President. As expected, it doesn't amount to much.
Late last week, just a day after the President announced his executive action on immigration, the House of Representatives finally filed the lawsuit that had been authorized back in July alleging that certain aspects of the President’s enactment of the Patient Protection and Affordable Care Act violated the law:
WASHINGTON — House Republicans filed a long-threatened lawsuit Friday against the Obama administration over unilateral actions on the health care law that they say are abuses of the president’s executive authority.
The lawsuit — filed against the secretaries of Health and Human Services and the Treasury — focuses on two crucial aspects of the way the administration has put the Affordable Care Act into effect.
The suit accuses the Obama administration of unlawfully postponing a requirement that larger employers offer health coverage to their full-time employees or pay penalties. (Larger companies are defined as those with 50 or more employees.)
In July 2013, the administration deferred that requirement until 2015. Seven months later, the administration announced a further delay, until 2016, for employers with 50 to 99 employees.
The suit also challenges what it says is President Obama’s unlawful giveaway of roughly $175 billion to insurance companies under the law. According to the Congressional Budget Office, the administration will pay that amount to the companies over the next 10 years, though the funds have not been appropriated by Congress. The lawsuit argues that it is an unlawful transfer of funds.
That issue involves subsidies known as cost-sharing reductions, which the federal government pays to insurers on behalf of people whose incomes range from the poverty threshold to two and a half times the poverty threshold ($11,670 to $29,175 a year for an individual).
If the lawsuit is successful, poor people would not lose their health care, because the insurance companies would still be required to provide coverage — but without the help of the government subsidy, the companies might be forced to raise costs elsewhere.
The subsidies reduce the co-payments, deductibles and other out-of-pocket costs that consumers incur when they go to doctors and hospitals.
The first ground of the lawsuit related to the extension of the employer mandate is one that we’ve covered before and is pretty much nonsense. Essentially, the House is alleging that the President acted improperly when he authorized an extension of time for employers of certain sizes to comply with the employer mandate provisions of the PPACA. Based on the law, though, it seems clear that Congress has in fact authorized the Department of Health and Human Services to grant relief from the laws impact in proper situations when it is clear that not doing so would cause administration headaches or serious problems that employers in general would have in complying with the law. More importantly, though, as noted above, the extensions themselves only last until 2016 so it’s unclear exactly what it is that the House’s lawsuit actually wants to accomplish here. After all, even assuming that they are right about the assertion that HHS lacked the authority to grant these extensions, the only impact a Court ruling would have would be to require businesses to comply with the law sooner rather than later. The Department would not be punished in any way, and neither would the President. Instead, if the House won, the party being punished would be the same small and medium sized businesses that Republicans themselves say that they are acting to protect. More importantly, for the reasons discussed below, it’s entirely improper that any Court will get to the merits of this lawsuit before this portion of the lawsuit is essentially moot.
That last fact is perhaps the main reason why the attorneys representing the House, which includes George Washington University Law Professor Jonathan Turley, have come up with another legal theory on which to sustain this lawsuit. Unlike the extension issue, this second ground involves the allegation that the Administration is violating the law by spending money in a way that Congress has not authorized, which would be a violation of both the Constitution and several Federal statutes. In this case, as noted, the new ground involves payments being made to insurance companies for which no specific appropriate has been made, even though the PPACA itself authorizes them. This is a ground that hasn’t really been explored in public before and most of the legal commentators I’ve read who have commented on the lawsuit have not really reached a conclusion about the merits of this particular provision of the law. It’s worth noting, though, that even if the House won on this ground it’s not at all clear that it would have any real impact on the law, as Paul Waldman explains:
As for the other of the suit’s complaints, on cost-sharing subsidies, if Republicans are successful in killing them it would mean that poor people would have to pay more in copays and deductibles. But unlike the subsidies in three dozen states that are at issue in the King v. Burwell lawsuit, which the Supreme Court recently agreed to hear, this provision isn’t critical to the law’s basic functioning. So apart from the satisfaction some Republicans might receive from making life harder for the working poor, even if they win this lawsuit they won’t have dealt the ACA a serious blow.
Before the Courts reaches the merits on either of these arguments, though, they will have to deal with preliminary matters that could mean that they may not end up reaching the merits at all. Specifically, of course, I am referring to the issues regarding standing under Article III of the Constitution:
As a general rule, the jurisdiction of Federal Courts is limited, pursuant to Article III, Section Two, of the Constitution, to what are generally referred to as actual “cases and controversies.” While the term is not explicitly defined in the Constitution, it is rooted in to some extent in the English Common Law that guided courts in the pre-Constitution era and, in general, means that Federal Courts are only authorized to hear matters that involve real disputes involving actual parties at least one of whom has suffered some kind of articulable injury. In Marbury v. Madison, which is known mostly for its establishment of the idea of Judicial Review, for example. the Court ruled in part that there were some actions taken by the Secretary of State that were not reviewable by a Federal Court. The doctrine was more fully fleshed out, though, in Baker v. Carr, a case which dealt with redistricting at the state level but which also set forth a six point standard for evaluating what is and is not a “political question” that is largely still followed today. Generally, the Court held that cases are “political” in nature, and thus outside the jurisdiction of the Federal Courts, when the following is true:
- “Textually demonstrable constitutional commitment of the issue to a coordinate political department;” as an example of this, Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be “political questions”
- “A lack of judicially discoverable and manageable standards for resolving it;”
- “The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;”
- “The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;”
- “An unusual need for unquestioning adherence to a political decision already made;”
- “The potentiality of embarrassment from multifarious pronouncements by various departments on one question.”
Without delving too far into the weeds of the not entirely interesting issues of justicability and standing in Federal Court, it strikes me that a very good argument can be made that the hypothetical lawsuit that the House is talking about here would meet all of these tests and, thus, would be considered a “Political Question” and dismissed before the Court even reached the merits of the claims made in the case. It is fair to note that there is a counter-argument that has been advanced by conservative attorneys who are apparently part of the team that is developing this lawsuit, but in all honesty those arguments don’t immediately strike me as being very persuasive. While it’s hard to make a definitive judgment on the matter before the lawsuit is filed, never mind before any Motions to Dismiss are filed in such a case, my instincts tell me that it is more likely than not that this lawsuit would would dismissed before the Court even talks about the merits of the arguments that it raises.
Resolving this preliminary legal matter, as well as whatever others may come up prior to consideration of the case on the merits, is likely to take the better part of 2015 at the trial court level in the U.S. District Court for the District of Columbia. Regardless of the outcome of those preliminary matters at the trial court level, the losing party will likely appeal the matter to the Court of Appeals for the District of Columbia Circuit, which at the very least would stretch the matter into the early part of 2016 in all likelihood. From there, of course, the next step would be the Supreme Court, but given the way timing is likely to work out it’s unlikely that the Justices would even be considering any request for Certiorari until late in the October 2015 at the earliest, which could mean that the matter, if accepted for appeal, would possibly not be heard until early in the October 2016 Term. In other words, the preliminary issue of whether or not the Courts even have jurisdiction to hear the House’s lawsuit, which they probably don’t, would not even be fully resolved until, at the earliest, mere weeks before President Obama is set to leave office.
Of course, as I’ve said before, this lawsuit has little to do with the legal merits of the claims and everything to do with the political reasons behind the lawsuit itself. The real purpose of this lawsuit is, and always been, to mollify the far right base of the Republican Party and its calls for more aggressive action against President Obama. Prior to this lawsuit, we were hearing frequent calls from these quarters for impeachment of the President and, while those calls have been consistently rejected by party leaders and most Republicans, they are still there and they are likely to increase in the wake of the President’s actions related to immigration late last week. This lawsuit, and whatever action the GOP ends up taking in response to the President’s immigration move, are meant to placate those forces in the GOP. Indeed, we are likely to see a lawsuit related to the immigration decision in the future as well, if not from the House itself, although that seems likely, then from states such as Texas and other states that are deeply red and firmly in Republican control. Those lawsuits won’t have much merit legally either, of course, but they will serve as a politically rallying cry heading into 2016, which is really what this is all about.
In any case, here’s the complaint in the House case: