Walter Dellinger is a Washington attorney and an emeritus professor of law at Duke University.
Amazingly, yet another lawsuit challenging a significant provision of the Affordable Care Act remains pending in court. This time, however, what is at stake is not a disagreement about Obamacare, but a question about the role of the judiciary: Should the House be able to bring a lawsuit simply because it disagrees with how the president is interpreting the statutes that the full Congress has enacted?
The answer is no. Allowing interpretive disagreements between the legislature and the executive to be resolved in federal court would constitute the single most radical expansion of the authority of federal judges in more than 200 years.
The particular dispute here: The Affordable Care Act requires the government to help some individuals meet their co-pay requirements for health care. The parties agree that, under our constitutional system, the executive cannot expend funds from the treasury unless Congress has appropriated them. Here, the Obama administration interprets federal statutes to allow it to draw upon a permanent appropriation — as it has been doing since the ACA was enacted — to make the required payments. The House, on the other hand, argues that the best way to read the law is to foreclose the administration’s use of that congressional appropriation.
It is, in other words, a simple disagreement about the reading of federal statutes — the kind that occurs between the political branches every day. Historically, such disputes have been resolved in the political process; for example, Congress will occasionally pass new laws expressly prohibiting the expenditure of funds in question. In this instance, however, the House hired lawyers and sued the administration before a federal district judge in Washington.
What is missing from the case is a legal injury to the House that would provide the basis for a lawsuit. No matter how strongly you and I might disagree with how a law is being interpreted and administered, we can’t bring a lawsuit unless we can show a personal legal injury. The House should be treated no differently. Here, neither the House nor its members stand either to profit personally or to suffer personally from how the law in question is administered.
In a 1997 case, Raines v. Byrd (a case I argued on behalf of the United States), Chief Justice William Rehnquist, writing for a 7-2 majority, rejected an effort by members of Congress to bring a lawsuit challenging the president’s exercise of power under the Line Item Veto Act. Rehnquist noted in his opinion the many times during our history when the president and Congress had sharp disputes about the way in which federal law should be interpreted. In none did Congress presume that the proper course was to sue the president. (Indeed, the Supreme Court has never in our history heard a federal case in which either the House or the president sued the other over an interpretive disagreement.) Legislators, the court held, do not have standing to challenge in court how the executive interprets and administers the law. Raines should be fatal to the House’s attempted lawsuit.
In very limited circumstances, one or both legislative houses have been able to sue because of an actual legal injury to the legislative branch. In a case in June, for example, the Supreme Court agreed that the Arizona legislature had standing to challenge a diminution of its authority. Arizona voters, acting by initiative, amended the state constitution to transfer redistricting power for federal elections from the Arizona House and Senate to an independent redistricting authority. The state bodies alleged that this change violated a provision of the federal Constitution expressly giving power to the “Legislature” of a state to prescribe the manner of federal elections. The Supreme Court agreed that the traditional Arizona state legislature could properly challenge in court the state’s literal stripping of its alleged authority to make such rules. (On the merits, the court rejected the claim: It held that the people of Arizona, acting by initiative, served as the “Legislature” for purposes of the U.S. Constitution.)
The dispute brought by the House is fundamentally different from the Arizona case. In the current case, the House suffers no legal injury from the execution of a statute because a legislature’s work is done when it passes a law. In the Arizona case, however, the challenged amendment stripped the legislature of its power to pass certain laws in the first place, actually curtailing its legislative authority, and thus creating legal injury.
Of course, we all have a collective interest in having our government act according to a proper interpretation of the law. But none of us can sue the government merely because we disagree with its interpretation. We can only do so if that interpretation causes us injury.
The House says that it is suing to protect its appropriations authority. But Congress could make the same argument about any dispute over the meaning of a law, claiming that it is suing to stop the president from unilaterally overriding Congress’s law-making authority. Accepting the House’s position here means opening the door to lawsuits whenever Congress and the president disagree over what a law means.
Why does it matter so much that cases be litigated only at the behest of parties with an actual personal stake? Because we are a democracy, and disputes between the branches about the proper meaning of law are best resolved by those elected by the people. Judicial review is the exception to this principle of majority rule — a valuable exception, but an exception nonetheless. That exception applies if and only if such judicial intervention is necessary to resolve actual legal disputes between parties who have a personal stake in the outcome of litigation. Courts have no roving commissions to impose their views on others.
In our system, the power to issue orders running the government should be exercised by courts only when the judges are vindicating the rights of injured parties. Then the courts must out of necessity determine the law. But in the absence of a real legal dispute there is no justification for the free-floating rule-by-judges the House seeks to impose with this ill-considered lawsuit.