Administration Loses Bid for Early Review of House ACA Case

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By Mary Anne Pazanowski

Oct. 19 — The Obama administration Oct. 19 lost its attempt to have a federal appeals court immediately review a ruling allowing the House of Representatives to move forward with a lawsuit alleging that the administration improperly used unappropriated funds to pay for an Affordable Care Act program.

Judge Rosemary M. Collyer, of the U.S. District Court for the District of Columbia, denied the administration's request to certify for an appeal before final judgment her Sept. 9 decision, which said the House had standing to bring a lawsuit to stop the administration's use of federal money to provide offsets, or subsidies, to health insurers to reduce the out-of-pocket costs for certain policyholders in ACA qualified plans.

Collyer said an appeal at his juncture wouldn't materially advance the resolution of the case, because the action was well-suited for summary disposition and likely could be briefed, and the merits decided, before an appeal could be determined.

HHS's Action Challenged

According to the court's initial ruling, the House claimed the program was subject to an annual appropriations process and that such appropriations never had been made. The court found this claim sufficient to assert an institutional injury to the House that gave the body standing to sue in order to protect its constitutional prerogative to approve any and all government appropriations.

The administration moved to certify the question to the U.S. Court of Appeals for the District of Columbia Circuit for review. It argued that the district court's holding thrust the judiciary into a political battle between the executive and legislative branches in a way the separation-of-powers doctrine was designed to prevent. 

In a memorandum in opposition, the House argued that certification for appeal wasn't appropriate because there was no “substantial ground for difference of opinion” on the standing issue.

The House said that “every court that has considered this issue has agreed that a duly authorized Legislative Branch entity, asserting an institutional injury, has Article III standing to sue an Executive Branch agency in federal court.” The administration defendants “either ignore these rulings or treat them as mere aberrations,” it said.

‘Pivotal' Order

In an Oct. 15 reply memorandum, the administration argued that immediate appellate review of the district court's “pivotal and debatable” order was appropriate because this lawsuit was “‘the first' of its kind in the Nation's history” and implicated “fundamental questions about the limitations on the role of the Judiciary under Article III.”

The memorandum said the district court itself had acknowledged that there was no precedent on this issue. The decisions cited the by the House in support of its argument that it had the authority to bring this lawsuit “addressed very different circumstances and” didn't stand for the proposition advanced by the House, the administration said.

At the very least, the D.C. Circuit should be allowed to decide the standing issue for itself. “The D.C. Circuit would be free to deny a petition for interlocutory review if it agreed with the House,” the administration wrote.

Collyer, in her order, said two of the three elements for interlocutory review were met in this case: The previous order involved controlling questions of law, including whether the House had standing, and there was substantial ground for disagreement with the court's decision. The third element, however, was lacking.

“To be sure, the case would be over more quickly if Defendants were able to appeal—and if they prevailed—now,” the court said. An immediate appeal, however, wouldn't materially advance the resolution of the litigation, because the district court likely could render a decision on the merits by way of summary judgment before the appeals court could issue its ruling.


House Speaker John Boehner (R-Ohio) said in a statement that he was “pleased” by the court's ruling.

“The court has previously ruled that the House does, in fact, have standing to challenge one of the president’s unilateral actions with regard to ObamaCare,” Boehner said. “Today’s ruling further underscores that point, and ensures that the District Court will hear the merits of the case this fall. It’s another important step toward holding the president accountable for his unconstitutional actions.”

White House spokeswoman Katie Hill told Bloomberg BNA that the administration was “disappointed” with the decision.

“The House lawsuit undermines centuries of historical practice and the fundamental principles of our system of democratic government,” Hill said, adding that the White House was “confident that the courts ultimately will dismiss this taxpayer-funded political stunt, which would make health care more expensive for millions of Americans.”

“The Affordable Care Act is driving down the deficit, coverage costs are billions less than expected, and health care costs have been rising at a slower rate than they have in 50 years—it is time for these endless lawsuits to stop,” Hill said.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at

To contact the editor responsible for this story: Brent Bierman at


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