Can the House’s Obamacare Lawsuit Succeed?

COMMENTARY The Constitution

Can the House’s Obamacare Lawsuit Succeed?

Nov 23rd, 2014 2 min read
Elizabeth Slattery

Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.

Last week, the House of Representatives filed a lawsuit in a federal district court in Washington challenging the Obama administration’s unilateral actions that have effectively amended the Affordable Care Act.

Speaker of the House John Boehner, R-Ohio, and other Republicans had threatened for several months to sue in an attempt to rein in the Obama administration. From illegal “recess” appointments to the more than 30 waivers of the ACA to the recent executive amnesty for millions of illegal immigrants, the administration has given Congress plenty of questionable actions from which to choose.

The House lawsuit targets two actions related to the administration’s failure to comply with the ACA. First, the administration paid an estimated $3 billion in fiscal year 2014 in subsidies to insurance providers for providing cost-sharing reductions to certain policyholders, even though Congress never appropriated funds for these subsidies. Second, the ACA requires that businesses with 50 or more full-time employees provide health insurance or pay a fine for each uncovered employee “beginning after December 31, 2013.” The administration delayed enforcement of this employer mandate until 2015 despite the statutory language.

While the substance of the House’s claims may be meritorious, the district court may rule against the House on procedural grounds if it finds that the House lacks standing to bring this lawsuit. There are three constitutional requirements for standing: an injury-in-fact; that is fairly traceable to the defendant’s conduct; and that is capable of being redressed by a court. The existence of other remedies, such as the power of the purse, censure or impeachment, may make the court hesitant to become involved in this battle between the administration and the House.

The injury is the hardest part for members of Congress to prove, and for that reason, courts often prefer suits brought by private parties because they can show a demonstrable (often economic) injury. For example, it was a bottling company, rather than the Senate, that successfully challenged President Obama’s illegal “recess” appointments to the National Labor Relations Board because the board was adjudicating an unfair labor practice claim made against the bottling company. While courts have ruled against members of Congress who brought “sore loser” suits, such as when six members sued to stop the Line Item Veto Act or when 31 members challenged President Clinton’s involvement of U.S. forces in a NATO airstrike against Yugoslavia, that tide may be turning.

A federal appellate court ruled that Colorado legislators had standing to challenge the state’s Taxpayer Bill of Rights constitutional amendment last April, although the Colorado governor has asked the Supreme Court of the United States to review this decision. The Supreme Court will also hear a case later this term that deals with whether Arizona state legislators have standing to challenge the state’s redistricting commission. Thus, the Supreme Court could issue a decision that has an impact on the House’s standing in its suit.

Although the Obama administration’s rather creative execution of the ACA raises serious constitutional issues, it is too soon to tell if the House’s lawsuit will be dismissed on standing grounds or if a court will reach the merits of the case. In the meantime, both houses of Congress should pursue alternative means to curb the abuses of the administration and repair the damage that is being done to the separation of powers embodied in the Constitution.

This piece originally appeared in The Daily Signal