There were a couple of questions about the court case from yesterday that said the Cost Sharing Reduction subsidies are not funded in PPACA. I am not a lawyer nor do I play one on this blog, so here are some smart lawyers.
Nicholas Bagley has a long run down but the highlight is here:
For what it’s worth, I share the district court’s skepticism of the administration’s arguments. As I explain in some detail here, it’s hard to read §1324 as supplying an appropriation for cost-sharing reductions. What I don’t share, though, is the district court’s confidence that she could properly hear this case. Until now, no one has thought that one house of Congress could file a federal lawsuit to hash out an appropriations dispute with the executive branch. This shouldn’t be the first time, even if the administration broke the law.
What happens now? Even if the D.C. Circuit expedites the government’s appeal, the court is unlikely to resolve the case before the election. When it does, I suspect it will have very little patience for the district court’s conclusion that the House of Representatives has standing to sue. My hunch, too, is that the Supreme Court will either not intervene or uphold the D.C. Circuit’s eventual dismissal of the case. This opinion will attract a lot of attention—and it should—but it’s not an existential threat to the ACA.
Lyle Denniston at SCOTUSBlog looks at the standing issue:
At an earlier point in the House of Representatives case against the ACA, the administration had tried to have the case dismissed on the theory that the House had no right to sue on the premise that it would not suffer any injury for how the government made spending decisions under ACA. Collyer last September upheld the right of the House to sue, although she did narrow significantly the number of specific challenges the House had made.
Because the judge refused to allow the government to appeal her ruling allowing the case to proceed (and, on Thursday, turned down a government request to reconsider that point), that question of the House’s “standing” will remain an issue for the government to contest when it does file an appeal. It is highly unusual for courts to allow one house of Congress, or individual lawmakers, to sue in federal court, so the “standing” issue could become decisive when an appeal is decided.
The Administration can appeal to either the DC Court of Appeals or to the Supreme Court directly. Since there is a 4-4 Supreme Court split and a tie goes to affirming the original decision, I think the Administration will appeal to the DC Court of Appeals primarily on standing grounds. Their argument is that this is a political question and the appropriate resolution is for Congress to use its constitutional power of the purse to get its way and that the courts have no place in the middle of a political food fight. If that argument is not successful in the first appeal, it will go for an en banc hearing. The Administration does not want to go to a split Supreme Court until it has a favorable ruling.
Update 1: Title corrected
update 2: Appealed to DC Court of appeals
We knew this was happening, but now its official: DOJ is appealing yesterday's ruling in House v. Burwell
— Jennifer Haberkorn (@jenhab) May 13, 2016