United States House of Representatives v. Burwell

United States House of Representatives v. Burwell, et al. (also known as the House Republicans' lawsuit against President Obama) is a lawsuit in which the United States House of Representatives is suing departments and officials within the executive branch, asserting that President Barack Obama has acted illegally in his implementation of the Patient Protection and Affordable Care Act. The litigation was authorized in a simple resolution on July 30, 2014, by a party-line vote of 225 to 201. All 225 votes in favor of filing a lawsuit were Republicans, and 5 Republicans joined 196 Democrats to vote against such a lawsuit. The vote authorized the initiation of "litigation for actions by the President or other executive branch officials inconsistent with their duties under the Constitution of the United States". The lawsuit was touted by House Speaker John Boehner, and asserts that President Obama exceeded his constitutional authority in delaying the implementation of the employer mandate of the Affordable Care Act and also "addresses Republican opposition to an estimated $175 billion in payments to insurance companies over the next 10 years as part of a cost-sharing program under the healthcare law."

Republicans filed the suit on November 21, 2014 in the United States District Court for the District of Columbia, one day after President Obama issued executive orders on immigration reform. Republicans discussed expanding the scope of the lawsuit to include the executive orders that Obama issued on immigration, but the scope of the lawsuit was not expanded. Legal experts have said that the lawsuit is likely to fail.

The named defendants are the United States Department of Health and Human Services and the secretary in charge of the department, Sylvia Burwell, and the United States Department of the Treasury and the secretary in charge of the department, Jacob Lew.

Reactions

The action has been noted to be "the first time either the House or Senate as an institution has brought a lawsuit against a president over enforcement of the law", and described the vote as "a historic foray in the fight over constitutional checks and balances". Political commentators have speculated that the proposal of a lawsuit is designed to supplant efforts to impeach Barack Obama, based on Boehner's experience with the impeachment of Bill Clinton. The commentators also believe that on its merits the lawsuit has many shortcomings, and legal experts have said it is likely to fail.

Observers have noted that Republicans had previously pressed for legislation to delay both the employer and individual mandates the previous year, and that the day after voting to sue the President for what he saw as ignoring a law passed by Congress, Boehner called on the President to ignore a provision in an immigration law passed by Congress. Obama responded to the plan to authorize a lawsuit against him, "Everyone sees this as a political stunt, but it’s worse than that because every vote they’re taking ... means a vote they’re not taking to help people." Some prominent conservatives have ridiculed the lawsuit as being wasteful "political theater" and a "foolish move", while others criticized it for not going far enough, preferring to press for impeachment.

Origins

The chief architects of the lawsuit are Florida International University law professor Elizabeth Price Foley and lawyer David B. Rivkin. The lawsuit is authorized to challenge the actions by the President or other executive branch officials inconsistent with their duties under the Constitution, under Article II, section 3 of the Constitution, to "take care that the laws be faithfully executed." Foley testified in February 2014 before the House Judiciary Committee, providing a detailed four-part "roadmap" outlining how she believed the House could obtain "institutional" standing to assert an institutional injury. Her subsequent testimony, in July 2014, before the House Rules Committee, provided further detail about her legal theory on both standing and the merits of a challenge based on the President's asserted failure to faithfully execute the law.

On July 30, 2014 the House took a vote to move forward with a lawsuit to force the President to impose penalties on companies who failed to provide health care coverage for their employees. On August 25, the House of Representatives retained the services of David Rivkin at a rate of $500 per hour with a cap of $350,000 for work on the lawsuit until January 2015. It has been speculated that because the delay of the employer mandate will end by January 2015, the lawsuit, if filed, will likely become moot by then. It was speculated that the plaintiff would choose to file either in the United States District Court for the District of Columbia (where Congress is physically located), or in a district that is politically hostile to Obama, on the theory that a lawsuit brought on behalf of the House could be brought where any House member lives. It was noted, however, that conservative judges tend to construe standing issues narrowly, and would therefore be more likely to dismiss the case. The case was ultimately filed in the District of Columbia.

After the first two law firms they hired to file the suit quit, the House GOP leadership was said to be exploring other options. On November 18, 2014, it was reported that Jonathan Turley, a law professor at the George Washington University Law School had been hired to prosecute the litigation.

Rulings

On September 9, 2015, US District Judge Rosemary M. Collyer, appointed by George W. Bush, ruled that the House of Representatives does not have standing to sue secretaries Burwell and Lew for improperly amending the healthcare law.

Also on September 9, 2015, the judge ruled that the House of Representatives does have standing to pursue the claims that the secretaries violated the Constitution by spending funds Congress did not appropriate. Collyer did not rule on the merits of the claims at this time. The Obama Administration vowed to appeal the ruling, calling it "unprecedented", and describing the case as "just another partisan attack".

On May 12, 2016, judge Collyer ruled in favor of the House of Representatives saying that although the subsidies in the Affordable Care Act were authorized by Congress, since Congress did not specifically appropriate money for the subsidies, public money can not be used to fund the subsidies. The ruling has been stayed, and the subsidies will continue, pending an expected appeal.

Similar lawsuits

Florida orthodontist and Republican political activist Larry Kawa, and conservative legal advocacy group Judicial Watch, filed a similar lawsuit against President Obama in October 2013, claiming that he has "spent time and money to prepare for the Jan. 1, 2014" deadline for the employer mandate. Kawa claimed to have spent "100 hours preparing for the employer mandate", with an estimated "opportunity cost of $1.1 million". The orthodontist's lawsuit was dismissed in January 2014 for "lack of standing", but opening arguments for an appeal in the 11th U.S. Circuit Court of Appeals began on October 14, 2014. Kawa and Judicial Watch, like the backers of the House resolution, oppose the Affordable Care Act and have said they believe the law should be vigorously enforced to accelerate its failure. On July 29, 2014 Robert Muise filed a similar case for American Freedom Law Center v. Obama. In May, 2015, the case was dismissed for lack of standing.

See also

• Constitutional challenges to the Patient Protection and Affordable Care Act