House v. Burwell King v Burwell on CSR appropriations

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


22 replies
  1. 1
    glory b says:

    I’ve wondered if the concept of standing is being slowly (or quickly) eliminated altogether from American jurisprudence.

  2. 2
    JPL says:

    Thanks Richard for the links and information.

  3. 3
    burnspbesq says:

    @glory b:

    Quite the opposite. The Roberts Court’s consistent tendency has been to limit access to the Federal courts.

  4. 4

    If it’s going to take that long, it will be a 5-4 liberal court. They will decide in some way that strengthens Obamacare, rather than merely maintaining status quo. We have gotten used to the slow chipping away at all liberal policies by the Supreme Court, and stopped imagining a court that slowly strengthens them instead.

  5. 5
    Dork says:

    @glory b: It was eliminated for a time being while Fat Tony was a justice, because party and Cleek’s reasons. I suspect it will make a very healthy comeback should a Dem win the election and get to choose a significantly liberal justice as the 5th voice.

  6. 6
    Punchy says:

    Completely OT, but something stunning I just found out w/r/t to Zika: That a clean person infected with Zika (say, in Rio Olympics by mosquito) comes home, gets bitten by a clean domestic mosquito. Now clean skeeter becomes dirty skeeter, and anyone she bites now becomes a dirty person (as well as all her offspring are born dirty, but maybe with tiny heads?). All dirty offspring now free to dirty up clean people; repeat ad infinitum.

    If that’s not a textbook case of how a pandemic happens, I dont know what is. So the only guarantee to not get Zeeked is to shoot any and all of your neighbors flashing plane tickets to the Opening Ceremony, claiming stand your T-cells’ ground.

  7. 7
    rikyrah says:

    thanks for the info, Mayhew

  8. 8
    Dennis says:

    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.

    But isn’t the suit arguing that the President isn’t ALLOWING them to use the power of the purse? What does the “power of the purse” mean if the President can spend money that hasn’t been appropriated?

  9. 9
    Dr. Bloor says:

    I wouldn’t be so quick to rule out a 5-3 SCOTUS decision for the administration if Roberts thinks he can get this carcass off his doorstep with a standing- based decision.

  10. 10
    WarMunchkin says:

    It’s kind of funny, these cases. Cause sometimes I read text like this and wonder, “huh, I get the politics of it, but what’s the right answer?”. I realize those quaint notions don’t actually matter in post-reality politics but humor me.

    Can the executive branch spend money that hasn’t been appropriated? It seems like the answer, from a School of Rock level understanding would be no. But the argument is that there’s nobody who can contest the executive besides for voters?

  11. 11

    @Dennis: then the remedy is either impeachment or win the White House and change the EO

  12. 12
    glory b says:

    @burnspbesq: Okay, I’m probably not thinking of the whole supreme Court docket, but just the newsworthy cases.

    I remember listening to a standing argument in the Texas law school affirmative action case, and somewhere else hearing/reading a question about the Dept of Justice conceding/stipulating that the Hobby Lobby owners (who transacted business with China) had a legitimate religious objection to a association with abortion and birth control.

    Speaking of which: any word on the status of the Little Sisters of the Poor briefs?

  13. 13
    MomSense says:


    It’s a nightmare and of course Congress is ignore President’s pleas for money to deal with this clusterfuck.

    Also, too there are more calls from public health agencies around the world to move the summer olympics. It’s the perfect vehicle to spread Zika everywhere!!!

    I think Zika survives in sperm for a really long time as well so this is a perfect pandemic storm.

  14. 14
    Prescott Cactus says:

    My take would be the House should STFU. You passed a bill with the intention of providing access to health care. You understood that it takes cold hard cash, not pixie dust and pig snouts to make this thing work. You wrote a few sentences that weren’t really clear and now you want to drown it instead if fix the verbiage.

  15. 15

    That is how all insect-borne diseases work. It is completely normal. Dengue, encephalitis, some flus, malaria of course, MANY others that are less famous. Any mosquito-borne disease for whom humans are a primary and not incidental host. There are many other factors, like how often carriers get bitten and whether that mosquito gets to bite another human after. That one is much less common than you would think, since mosquitos bite only to lay eggs. Mosquito density in an area is important, since it hugely affects that. Temperature range the disease can survive, since mosquitos are not self-heating. How likely each bite is to transmit. Most of all, which species of mosquitos, all with specific ranges, can transmit. I don’t know the answers for Zika, but the process you described is normal!

    EDIT – Of course, ‘pandemic’ doesn’t mean what people think. We’re in the middle of a century-long global bubonic plague pandemic, including the US. However, there is no question that the Rio Olympics provides huge opportunities for the disease to expand its range.

  16. 16
    Punchy says:

    @MomSense: There’s an awful “easy way to rid one’s self of questionable sperm” joke I’m not going to make here. Instead, I’d proffer this: anyone who doesn’t get Zeeked but has events near the water will almost certainly end up contracting a virus or bacterial infection, since the water is literally a shit pool.

    I’m sure those open-water swimmers are excitedly awaiting their event with open arms, closed mouths, and fistfulls of antibiotics and anti-virals.

  17. 17
    Origuy says:

    Not all mosquitoes carry all diseases. I haven’t heard which species carry Zika and can live in the continental US.

  18. 18
    CaseyL says:

    Mama Earth is determined to limit the number of humans one way or another, and who can blame Her?

    Would I go to Rio for the Games – or for any other reason, really – if you handed me, on a silver platter, an all-expenses paid trip?

    Dunno. Brazil is an interesting place, but I can’t tolerate the tropics anymore. Zika isn’t an issue since I’m not going to get pregnant now or ever – or I thought it wasn’t an issue, until I read Punchy’s post about how humans can spread the virus to mosquitoes – that’s a new one on me! – who then can spread it to other humans. It’s one thing to believe the global ecosphere would be better off with half the humans we currently have; quite another to actively participate in making that happen!

    But if I were an Olympia Athlete… no freakin’ way. Honestly, it seems like the Olympics are becoming more like a road version of The Hunger Games, with dire health threats standing in for the lethal landscape. Air pollution in China, melty fake snow at Sochi, and now pandemic skeeters in Rio. Maybe we should call the whole thing off, no?

  19. 19
    Groucho48 says:


    Not a lawyer, but, my understanding is that those payments are required to be made. But, there is no provision for how they are to be paid and Republicans, of course, have no intention of doing their job and allocating funds to these legally obligated payments. So, Obame used a general pile of Obama care money.

    The recourse Congress has is to propose something that prohibits Obama doing that, get it through both houses of Congress and the Presidents veto. Of course, they haven’t even tried this because they know it won’t succeed. Instead, they went whining to Court.

    I’ve heard that if those payments aren’t made, the insurance companies can go to court and will almost certainly win and those payments would have to be made then. Of course in a very inefficient and time-consuming way, but, hey, that’s just how The Party of Fiscal Responsibility rolls.

    Meanwhile, Obama is also taking money designated to fight Ebola and using it to fight Zika. Without permission from Congress, though some Republicans say they are okay with this. I imagine there are lots more examples if we looked.

  20. 20
    Betty says:

    Re:Zika. The mosquitos that spread it are the Aedis genus and the Asian Tiger.Reports are that the second one is more widespread in the US.

  21. 21
    I'mNotSureWhoIWantToBeYet says:

    @Groucho48: This is a complex bill with lots of provisions, so it could be challenged for the next hundred years. I’m not sure how to get around that.

    CNN from 2014:

    The Obamacare complaint cites two specific actions by the Obama Administration regarding the implementation of the health care law. The first zeroes in on the decision to delay for one year the requirement that employers with over 50 employees provide health care coverage or pay penalties. The second maintains it was illegal for the Treasury Department to transfer of billions of dollars that Congress has not approved to insurance companies to share the costs of providing new health plans.

    The case, filed in U.S. District court for the District of Columbia, names both the Secretaries of the Health and Human Services and the Treasury Departments, but not the President personally.

    House Republicans agreed that Obamacare’s so-called “employer mandate” should be postponed. The House passed a bill last summer to do so, but GOP members maintain that the president’s decision to act unilaterally on the delay circumvented Congress’ role to pass laws.

    The delay-thing was a real eye-roller to me. “Do what we want, but you have to let us do something first! (And of course, since we have no intention of doing that, you have to wait!) But do what we want!!11”

    The sensible thing on the payment of the subsidies is a “deemed passed” provision (which seems to me has been the default for about the whole history of the country). That is, if Congress passes a bill that demands that money be spent for something, and provides a funding mechanism for the entire program, then it has “deemed passed” approval to spend the money.

    Of course, not getting to that point makes sense, too, if they can simply throw it out on standing. “Why are you bothering the courts with this stuff? Do your jobs!”



  22. 22
    Retr2327 says:

    @glory b: @glory b: @glory b: my sense is it’s being eliminated by Republican-appointed judges hearing challenges to Obama’ legislation, but I may just be cynical . . .

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