The Next Big Obamacare Lawsuit Lives

Just when you thought that any further Obamacare lawsuits involved things like contraceptive mandates rather than anything at the law’s core, today a federal judge ruled that Speaker of the House John Boehner’s case against the HHS and Treasury secretaries can proceed. In a highly technical 43‐​page opinion, Judge Rosemary Collyer found that the House of Representatives has standing to sue these officials and their agencies for spending money on ACA implementation that Congress didn’t authorize. That’s clearly the right call: only Congress can appropriate funds for federal programs and so Congress faces a unique institutional injury when the executive branch decides to take that particular prerogative upon itself. Judge Collyer went on to deny standing on the additional claim that the executive amended the statute when it delayed and modified Obamacare’s employer mandate – but this is a much closer issue that will be hotly contested on appeal. As Cato described in our King v Burwell brief, Obamacare implementation has been a seat‐​of‐​the‐​pants executive frolic from the get‐​go (and we didn’t even include the episode at the heart of the surviving claim here). It’s not surprising that a law written in haste behind closed doors and that was rammed through Congress via procedural shenanigans would have growing pains as it went online. In the normal course, that would mean technical amendments and orderly administrative rulemaking, but here, given the lack of popular support – and the loss of Congress by the enacting party as a direct result – that wasn’t possible. Accordingly, the Obama administration is (again) reaping what it has sown. Keep an eye on U.S. House of Representatives v. Burwell — and note that one of the early sketches of this suit was presented at a Cato policy forum by my colleague Andrew Grossman.