Collyering all Lawyers

The US House of Representatives can sue the executive branch over the Affordable Care Act (Obamacare), ruled the US District Court for DC.

As Carl Hulse reports:

In a significant defeat for the administration, United States District Court Judge Rosemary M. Collyer found that the House had made a compelling case that suing the White House was the only way to preserve its constitutional power to control federal spending and stop the administration from distributing $136 billion in insurance company subsidies that Republicans say Congress never approved…

She said the merits of the claim would be determined in a later proceeding. But her decision, if it withstands appeal, would mark the first time the House has been able to challenge an administration in court over its spending power.

You can read Collyer’s opinion here.

The Obama administration suggested several avenues by which the House could respond without resorting to a court case. Namely, the House could deprive Obamacare of funding. Collyer writes in response:

The  Secretaries  further  argue  that the House  is not injured by  the lack of an  appropriation because it can remedy or prevent that injury through means outside this lawsuit.  Id.  at 19 – 20.   Chief among those means , they contend, is “the elimination of funding.”   Id. As  the House points out, the Secretaries are  “ apparently oblivious  to the irony ” of their argument . Opp’n at 35.   Eliminating funding for  Section 1402 is  exactly  what the House  tried  to do.   But as  the House argues, Congress cannot  fulfill its constitutional role if it specifically denies funding  and the Executive  simply find s money elsewhere without consequence. Indeed, t he harm alleged  in this case  is particularly insidious  because , if proved, it  would eliminate Congress ’s  role via – a – vis the Executive . T h e political tug of war  anticipated by the Constitution  depends upon Article  I, § 9, cl. 7 having  some  force; otherwise  the purse strings  would be cut.

Editorial comment: But couldn’t the House simply try, try again? True, there is probably some constitutional limit to the amount of budgetary whack-a-mole that the House should have to engage in. But that line was pretty far from being met in this case. Political tug of war is what separation of powers is about.

As to the administration’s argument that the House could simply repeal regulatory authority for Obamacare, Collyer writes that this would amount to a violation of the executive branch’s constitutional authority. This, the House cannot do.

Editorial comment: I don’t see how she gets this. Surely, repealing a certain regulatory authority does not amount to repeal of regulatory authority in general.

To close off her analysis, Collyer distinguishes between the court’s jurisdiction and the justiciability of the case. Citing case law, she wrote that “Jurisdiction  governs  a court’s  authority to hear a case ; justiciability  pertains to  the advisability of hearing the case”. Despite the questionable wisdom of allowing the case to proceed, Collyer compared the executive branch’s action to “constitutional trespass”, which deprived the House of its constitutional appropriations authority. She writes that her ruling…

falls within the traditional role accorded to courts to interpret the law, and does not  involve a ‘lack of respect due [a] coordinate [branch] of government,’ nor does it involve ‘an  initial policy determination of a kind clearly for nonjudicial discretion.’ ”) (quoting Baker , 369  U.S. at 217) . In short,  centuries of precedent demonstrate the  Judiciary’s ability to  adjudicate the Secretaries’ compliance with  the Constitution.

As to the question of whether her opinion violates separation of powers doctrine, she suggests that courts have always had the power to do what she now does. They have not had occasion to because the political branches have voluntarily (though unnecessarily, in her assessment) refrained from suing each other.

The systemic implications of this lawsuit have not gone unnoticed. As Hulse reports:

Speaker John A. Boehner had pressed the lawsuit both as a way to attack the health care law and to underscore what congressional Republicans say is a pattern by the Obama administration of exceeding its authority on a range of issues including health care, immigration and pollution controls…

“This decision would be a radical expansion of the role of unelected judges to resolve disputes that are essentially political,” said Walter Dellinger, who served as acting solicitor general in the Clinton administration.

Collyer’s opinion could end up being little more than a curiosity. Hulse reports that legal watchdogs see the Supreme Court as likely to reverse her.

Nonetheless, her opinion is in line with a broader social shift towards court power. Karen Alter, for instance, has written about international judges’ creeping power over administrative, constitutional, criminal and dispute settlement matters. Such judicialization seems to have a link to domestic inequality, as I have written here.

Judicialization poses a challenge to talking about government actions as to whether or not they advance the “rule of law”. (The Obama administration hinted at as much in its argument that the House should not be able to sue simply to “vindicate the rule of law”.) If it means that judges are the ones making the important decisions, it might be better described as “rule by lawyers”.

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