The writer, a senior counsel at the law firm of Arnold & Porter, was general counsel of the U.S. House of Representatives from 2007 to 2010.
As general counsel of the House of Representatives in 2008, I brought the first successful lawsuit by the chamber against the executive branch. But I do not celebrate the recent House victory in federal District Court allowing it to proceed with its ill-considered litigation over appropriations under the Affordable Care Act, known colloquially as Obamacare. If not overturned, this decision could have seriously adverse consequences for our democracy, as well as for millions of needy Americans.
The suit that I brought on behalf of the House sought the enforcement of House Judiciary Committee subpoenas issued for the testimony of former White House counsel Harriet Miers and for documents in the custody of the White House chief of staff. The White House refused to comply with the subpoenas, claiming that such high-level administration officials were “absolutely immune” from House subpoenas. The District Court found that this was a purely legal issue, which the courts were uniquely situated to resolve.
Enforcement of subpoenas is routine fare for the courts. And in the Miers case, the court found that the House had no effective recourse other than a lawsuit, that the parties were at an impasse and that a ruling from the court could help the House perform its constitutional function to provide oversight of the executive.
The current case, House of Representatives v. Burwell , is quite different. In this dispute, the House claims that subsidies the executive branch is paying to insurance companies to provide health insurance for low-income individuals have not been properly appropriated by Congress. Not only is it unclear how the House has been injured by these payments (a concrete injury being a prerequisite for any lawsuit in federal courts), but, more important, the claim can more appropriately be handled by Congress. The courts have no particular facility with the arcana of the appropriations process and have less authority and ability to remedy the alleged problem than Congress does.
District Judge Rosemary Collyer’s opinion in House v. Burwell appears to recognize that the court will have no ability to provide relief for past payments and suggests that if it finds that there has been a violation of the appropriations laws, the only available remedy would be an injunction against future payments.
But appropriations for future payments are peculiarly the province and responsibility of Congress. Unlike the Miers subpoena, the remedy lies within the power of Congress, precisely as the framers of the Constitution intended. The two houses of Congress are quite able to prohibit (or permit) future payments of these subsidies. That is a far more democratic way to deal with this critical issue of public policy.
If this precedent were allowed to stand, there would be no limit to the kinds of lawsuits that could be brought by one house against the president. The Senate, which has responsibility to ratify treaties, could sue any time it believed an executive agreement had undermined its authority. The House could sue whenever a majority believed that a law that it had had a hand in passing was not being enforced as it intended by an executive agency. Implementation of the laws is purely an executive function and neither house of Congress is authorized to try to enforce the laws in court. Particularly since the House has tried and failed more than 50 times to repeal Obamacare, it should not be able to circumvent the legislative process and obtain its policy goal in the courts.
Before the court delves into the merits of this case — which it repeatedly wrote that it had not yet done — it should grant a petition by Health and Human Services Secretary Sylvia Burwell for immediate review of this decision by the D.C. Circuit Court of Appeals. Federal court procedure allows for what is called an “interlocutory appeal” of a denial of a motion to dismiss a suit only when the losing party petitions for such an immediate appeal and when the District Court authorizes it. On a matter of such significance for our country and the functioning of our Constitution, the District Court should allow such an appeal in this case.
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