The White House is wasting no time challenging a judge's decision to allow House Republicans to sue the administration over its implementation of the Affordable Care Act.
The administration Monday asked to file an interlocutory appeal, which would put the case on hold while an appeals court decides whether the House has standing, or the right, to sue. Such appeals are rarely allowed, but experts say this case might prove an exception.
Ankur Goel, a health partner with McDermott Will & Emery, said given the political nature of the lawsuit between the executive and legislative branches, one could make the case that "the ability to sue ought to be decided up front, before going through the actual substance of the litigation."
Such an appeal would be allowed only if the district court judge who made the original decision and the U.S. Court of Appeals for the District of Columbia agreed to it. The House has said in court documents that it intends to oppose the administration's request for an interlocutory appeal.
The administration's request follows District Court Judge Rosemary Collyer's ruling this month that House Republicans have standing to sue over their allegation that the administration sidestepped congressional appropriations process to finance the law's cost-sharing provisions. Those provisions include reduced deductibles, copays and coinsurance for many beneficiaries depending on income.
The House had to prove it was injured to have standing. House Republicans argued in court documents that the administration's decision to spend $178 billion over 10 years for cost-sharing without a congressional appropriation robbed the House of its constitutional power.
“This injury, which essentially reduces the House to the role of bystander, is not only concrete and particularized, it is so enormously damaging to the House as an institution that it is impossible to overstate,” House Republicans argued in court documents.
The administration, meanwhile, has argued that insurers have a legal right to reimbursement for cost-sharing reductions under the law, citing a part of the statute that says HHS “shall make periodic and timely payments to the issuer equal to the value of the reductions.”
In the filing which requests the interlocutory appeal, the Obama administration argues that Collyer's decision to grant the House standing is unprecedented. It argues that the courts should not be thrust into political battles between Congress and the president.
“Once a federal court asserts the power to decide which Branch should prevail in such a political dispute, the damage to the separation of powers can never be fully undone,” the administration said in a court document.
Nicholas Bagley, an assistant law professor at the University of Michigan, said, given the importance of the standing decision, it would make sense for the courts to allow the government's appeal.
Bagley said granting an immediate, interlocutory appeal may be the most responsible course of action for the courts "when a district court issues a decision this momentous that could reshape the relationship between the branches."
There's no fixed time by which the courts have to decide whether to allow the interlocutory appeal, Bagley said. But he suspects that they'll want to decide quickly, possibly within a matter of weeks.
If the courts agree to the appeal, the administration has promised to file its first brief within a few weeks to speed up the process. Still, it would likely take months for the appeals court to make a decision on the standing issue, Bagley said.
If the appeals court were to disagree with the lower court, saying the House does not have standing to sue, the litigation would either end there or the House could appeal to the U.S. Supreme Court. If the appeals court were to side with the House, saying it does have standing, the case would then go back to the lower court to be tried on its merits.
If the courts refuse to allow the interlocutory appeal, the case will proceed on its merits in the lower court.
