Initial Thoughts of Complaint in House of Representatives v. Burwell, et al

November 22nd, 2014

At long last, after two law firms dropped the case, the House found a lawyer to file its complaint–Jonathan Turley. The case styled “U.S. House of Representatives v. Burwell et al” has now been filed in D.D.C. before Judge Collyer. You can view the complaint here.

In this post I will try to provide an initial analysis of the complaint.

Here is a summary of the charges of unlawful acts:

A. Defendants Sylvia Mathews Burwell, Secretary of the United States Department of Health and Human Services, Jacob J. Lew, Secretary of the United States Department of the Treasury, and the respective Executive Branch departments they head, have violated, and are continuing to violate, the Constitution by directing, paying, and continuing to pay, public funds to certain insurance companies to implement a program authorized by the ACA, but for which no funds have been appropriated. Such unconstitutional payments are estimated to exceed $3 billion in Fiscal Year 2014, and total approximately $175 billion over the ten succeeding Fiscal Years. Defendants’ expenditure of taxpayer funds, absent a congressional appropriation, plainly is unconstitutional as it violates Article I of the Constitution; it also violates statutory law, in particular, 31 U.S.C. § 1324, the ACA, and the Administrative Procedure Act, 5 U.S.C. §§ 500 et seq.

B. Defendants Lew and the United States Department of the Treasury also have violated the Constitution by issuing a regulation that effectively amends ACA provisions that impose mandates on certain employers and establish a deadline by which such employers must comply with those mandates. These unconstitutional actions are estimated to cost federal taxpayers at least $12 billion.

With respect to standing, the complaint repeats over and over that the President’s actions “usurp the House’s Article I legislative powers.”

One question I have had from the outset is mootness. The employer mandate–assuming there are no more delays–goes into effect in 2016. But by adding the payments to insurance companies, the case remains live beyond 2016.

Finally, most of the relief sought is declaratory, except for injunctive relief ordering the Secretary of the Treasurer not to make any further payments in the absence of an appropriation.

Enter injunctive relief as follows:
(i) With respect to Counts I, II, III, IV, and V, enjoin defendants Lew and the Treasury Department from making any further Section 1402 Offset Program payments to Insurers unless and until a law appropriating funds for such payments is enacted in accordance with Article I of the Constitution.

So the complaint isn’t ordering the Executive Branch to do something. It is telling the Secretary to stop spending money. All other relief is declaratory. What’s the purpose of a declaration that the President is acting unconstitutionally? Use your imagination.

Unsurprisingly, the White House called the suit “unfortunate”:

The White House says it is “unfortunate” that House Republicans would devote time and energy to filing a lawsuit challenging President Obama’s delay of a provision in his signature healthcare law, as they did Friday.

“At a time where I think the American people want Washington focused on jobs and the economy, the House Republicans choose to sue us, sue the president for doing his job,” spokesman Eric Schultz told reporters traveling aboard Air Force One.

Schultz added that Republicans were using taxpayer resources “for a lawsuit that their own congressional research service could not identify any merit for.”