The U.S. Supreme Court may have saved the Affordable Care Act in its King v. Burwell decision last week, but it made another decision Monday that some say might undermine the healthcare law in a different, unrelated case.
Legal experts agree that the next big challenge to the ACA may be a lawsuit House Republicans filed against the Obama administration saying it is spending money Congress never appropriated for the law's cost-sharing provisions. Those provisions include reduced deductibles, copays and coinsurance for some beneficiaries depending on income. They also argue the administration had no right to delay the law's employer mandate.
House Republicans, however, must first prove they have standing in the case—by showing that the administration's actions caused them injury—before the case can proceed to the main arguments. And that, legal experts agree, will likely be the biggest obstacle to the lawsuit.
Lawyers for House Republicans, however, said in court documents filed Tuesday that a new Supreme Court decision in an unrelated case bolsters the House's argument for standing.
In that case, the court ruled against the Arizona Legislature, disagreeing with the Legislature's assertion that an independent redistricting commission established by a state ballot initiative was unconstitutional. Redistricting is normally a legislature's job.
But the justices said the Legislature had standing to sue—a ruling lawyers for House Republicans called “relevant” in Tuesday's brief.
“The State Legislature asserted that it was injured because the redistricting commission 'strip(ped) the Legislature of its alleged (constitutional) prerogative to initiate redistricting' … The Court agreed that those allegations were sufficient to confer Article III standing on the State Legislature,” according to a brief filed by Jonathan Turley, an attorney for House Republicans.
It's very similar to the argument House Republicans made in their case against the Obama administration.
House Republicans claim their appropriating power was usurped.
The government has argued in the House case that “an abstract dilution of institutional legislative power” does not equal injury and that the dispute is political in nature.
In the new brief, however, Turley points out that in the Arizona decision the justices rejected “defendants' arguments—and the arguments of the Administration as amicus—that the state Legislature suffered no cognizable injury and that any institutional claim of injury was too 'speculative,' 'premature,' 'hypothetical,' and 'conjectural' to confer standing.”
Tim Jost, a law professor at Washington and Lee University in Lexington, Va., and a proponent of the ACA, agreed that the Arizona ruling is relevant to the House case, but not in the way the House thinks it is. If anything, the ruling supports the administration's position that the House does not have standing, Jost said, pointing to a seemingly significant footnote in the Arizona opinion.
That footnote says the Arizona case “does not touch or concern the question whether Congress has standing to bring a suit against the President. There is no federal analogue to Arizona's initiative power, and a suit between Congress and the President would raise separation-of-power concerns absent here.”
Jost also pointed to dissents by Justices Antonin Scalia and Clarence Thomas saying they do not believe the Arizona Legislature should have been granted standing in the case.
"What history and judicial tradition show is that courts do not resolve direct disputes between two political branches of the same government regarding their respective powers," Scalia wrote.
Turley, however, says in the House's brief that another part of that footnote in the majority opinion rejects the government's position that Congress may never sue the president.
“The Court then repeated its long-standing position that its 'standing analysis ... has been 'especially rigorous when reaching the merits of the dispute would force (the Court) to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional,' ” Turley wrote.
U.S. District Court Judge Rosemary Collyer is now weighing a request by the administration to dismiss the House's case for lack of standing. During oral arguments in May, Collyer seemed skeptical of the administration's claims that the House had not suffered any injury. Collyer was nominated by President George W. Bush.
Some have speculated that if Collyer says the House has standing to sue, the House's main argument about the spending of unappropriated money may be a strong one with the potential to damage the ACA.
Both sides in the case were supposed to submit supplemental memorandums by Wednesday and have until July 17 to file additional replies.