National Review has published my piece on House of Representative v. Burwell. The bulk of the piece focuses on the Court’s meticulous analysis of the underlying statutory issue. Simply stated, the government does not have a leg to stand on because there is no appropriation for 1402 subsidies. Here, I’d like to flag my discussion of standing, and perhaps suggest to others that conservative’s long-standing preference for rigorous standing rules may warrant a second look for separation-of-powers challenges.
Here are the highlights:
Time and again, the Obama administration has modified, delayed, and suspended the law through unprecedented executive actions. The government’s most frequent defense is denial: Because no one is injured by their actions, no one has “standing” to challenge the actions in federal court. However, once forced to defend its policies, the government’s specious arguments quickly crumble.
In 2014, the House of Representatives filed a lawsuit alleging that the executive branch spent money without a congressional appropriation. The government’s first line of defense was to argue that the House lacked standing, because it was not injured. But the administration steadfastly refused to address how HHS was spending money that Congress chose not to appropriate. During a hearing last year, Judge Rosemary Collyer expressed her frustration with the government’s unwillingness to justify its actions. She chided the Justice Department lawyer, “You can’t just shake your head and say no, no, I don’t have to answer that question.” When he bobbed and weaved, Collyer charged: “This is the problem I have with your brief: It’s not direct. It’s just not direct. You have to address the argument that [the House] makes and you haven’t.”
In September 2015, the court found that the House was injured, and had standing to sue. Judge Collyer wrote that the “constitutional trespass alleged in this case would inflict a concrete, particular harm upon the House for which it has standing to seek redress in this Court.”
Conservatives have long advocated for a rigorous standing doctrine as a means to prevent “activist” courts from interfering with the democratic process. Indeed, Justice Antonin Scalia viewed standing as “a crucial and inseparable element of the separation of powers.” He wrote that making it harder for plaintiffs to bring constitutional challenges in federal court would reduce the “overjudicialization of the processes of self-governance.” The late justice’s approach is sound in theory, but risky in fact. In recent years, rather than protecting the separation of powers, the standing doctrine has served to insulate ambitious presidents as they run amok across what James Madison referred to as “parchment barriers.”
Judge Collyer’s decision to grant the House of Representatives standing has exposed an illegal expenditure of billions of dollars, without even the pretense of an appropriation. Relatedly, the Fifth Circuit’s decision to grant the state of Texas standing to challenge President Obama’s immigration actions has shined a light on an unprecedented act of executive lawmaking. Cramped standing doctrines would allow these abuses of presidential power continue without any scrutiny. Government lawyers can simply walk into court, and shake their heads no. When the president is willing to spend money without Congress’s permission, or rewrite laws when Congress refuses to, the traditional political process has collapsed. The courts must force the executive branch to explain its actions, and abide within its broad — but constrained — sphere of power.
Later in his tenure, Justice Scalia may have started to reconsider his once-strict views on standing doctrine as it relates to the separation of powers. In National Labor Relations Board v. Noel Canning, the Court unanimously invalidated President Obama’s illegal recess appointments. Justice Scalia concurred in judgment, but his opinion read more like a dissent. He lamented that the Court squandered a rare opportunity where parties had standing to raise a separation-of-powers challenge. “It is not every day,” Scalia wrote, “that we encounter a proper case or controversy requiring interpretation of the Constitution’s structural provisions.” He urged the Court to “take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment.” Judges should think twice about looking askance at abuses of the rule of law before sticking their head in the sands of standing doctrine.
I think this case, as well as U.S. v. Texas, should offer a moment of pause where we can reconsider our standing doctrine.