The Obama Administration will Have to Defend the Merits in House v. Burwell

October 21st, 2015

Because Judge Rosemary Collyer denied an interlocutory appeal in House of Representatives v. Burwell, the government will have to reach the merits–and it is on these grounds that they are the shakiest. In an interview with Modern Healthcare, I noted that Judge Collyer’s denial of the interlocutory appeal was surprising, but not entirely unreasonable.

Josh Blackman, an associate professor of law at South Texas College of Law, likewise said he was surprised but also that her logic wasn’t entirely unreasonable. It’s possible the case could be resolved at the district level as soon as April, he said. The appeals court could have taken six months to a year to review whether the House has standing to sue, he said.

With the case moving forward, there’s a real chance that the House’s argument about illegal spending could prevail. “The government’s strongest argument is standing, their weakest position is on the merits,” Blackman said.

In their briefs and during oral argument, the government strenuously evaded any effort to address the merits directly. McClatchy reported at the time:

Appointed to the bench by President George W. Bush, Collyer repeatedly, and perhaps tellingly, hammered Justice Department attorney Joel McElvain with sharp comments like “You’re not getting my point,” “You are dodging my question” and “This is the problem with your brief. It’s just not direct.”

While this was the smart litigation position to take during the jurisdictional hearing, this is a strategy they can follow no longer. This is significant, even if a higher court may have previously been inclined to rule against the House on standing grounds. Because any ultimate appeal will have in the record both a discussion of standing, and the merits, it is inescapable that a higher court will consider the merits when thinking about standing. This may not be doctrinally correct, but Judge Collyer’s decision will let this genie out of the bottle. And more importantly, because we are on somewhat uncharted, unprecedented grounds, where the House is suing the executive branch, the specific facts of this case–however egregious a violation of the separation of powers–may ultimately shape the doctrine of whether the Court finds standing.

There is an outside chance the DOJ will seek the extraordinary writ of mandamus, but this is very unlikely to be granted.

The Obama administration could try at least one more legal maneuver that could get the circuit court to intervene. It could seek what’s called a writ of mandamus.

But Blackman said the odds of getting one would be very low because the White House would have to argue there would otherwise be irreparable harm. Collyer’s decision allowing the House to sue, however, doesn’t change anything about the way the ACA plays out in the real world.

The plaintiffs are not seeking a preliminary injunction, but are only moving for summary judgment (on an expedited calendar). There is no conceivable showing of irreparable harm if summary judgment is granted–other than having to defend a weak position. The government will be able to quickly appeal the grant of summary judgment in favor of the plaintiffs.

Stay tuned.