Feldman on House of Representatives v. Burwell

May 16th, 2016

Noah Feldman’s piece on House of Representatives v. Burwell has two significant errors.

First, Feldman writes that Raines v. Byrd controls this case, because it held that “congressmen” could not challenge the Line Item Veto Act.

The congressmen who challenged the law claim that there’s no provision in the law specifically appropriating money for this reimbursement. …

First, [Judge Collyer] made new law by ruling that the House of Representatives could sue the executive branch to claim that the president was spending money that Congress hadn’t allocated.

This part should have been easy. Congressmen don’t have standing to challenge the legality of laws, a principle the Supreme Court affirmed in 1997 when it said they didn’t have standing to challenge the line-item veto.

That is correct summary of Raines, but it does not control this case. It is not “congressmen” who are suing, but the House of Representatives, which voted as a body to proceed. Indeed, Justice Stevens’s opinion in Raines “attach[ed] some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.” That “the plaintiff here is the House of Representatives,” Judge Collyer wrote, “distinguishes this case” from Raines.  This doesn’t mean that the House does or does not have standing, but Raines is not dispositive.

Second, Feldman writes that Judge Collyer’s opinion is self-defeating:

Judge Collyer’s second error was treating the ACA as self-defeating. It makes no sense to interpret the law as though it established a multibillion-dollar subsidy but then didn’t allocate funds for it. The ridiculousness of reading the law this way simply underscores that this was a blatantly political act of judicial overreach.

It is not at all self-defeating, let alone “absurd.” Why couldn’t Congress have intended to require the government to request a new appropriation each year? Indeed, the Obama administration requested $1.4 billion for Section 1402 for its Fiscal Year 2014. After Congress said no, the Obama administration suddenly determined that there was a permanent appropriation all along. It is it really so “self-defeating” and “absurd” that this was how the White House originally interpreted the statute? Indeed, the only reason why there is a shortfall is that Congress decided not to fund it. It is not Judge Collyer’s decision that creates the shortfall, but Congress’s decision itself.

I address this argument in my piece in National Review last week:

Third, HHS warned that blocking payments to insurance companies would “yield absurd economic, fiscal, and healthcare-policy results.” Judge Collyer dispatched this argument, finding that the “results predicted by the [government] flow not from the ACA, but from Congress’ subsequent refusal to appropriate money.” If Congress does not want the government to pay insurance companies for losses suffered because of Obamacare, the court concluded, “that is Congress’s prerogative; the Court cannot override it by rewriting” the ACA. In short, paying the Section 1402 subsidies based on the 1401 appropriation “violates the Constitution. Congress is the only source for such an appropriation, and no public money can be spent without one.”

Feldman’s tell comes in the middle of the piece, where he refers to Section 1402 as a “drafting error[].”

In the real world, there’s little doubt that this was an oversight by the drafters. The law was produced and passed in haste, and drafting errors are to be expected. Courts don’t normally throw out parts of laws over technical mistakes when the purpose of the provision is clear.

Where have we heard before that the ACA included a drafting error, but the purpose was “clear.” The government and amici diligently cling to the Chief Justice’s decision in King v. Burwell to save their case.

Judge Collyer’s decision addresses the relevance of King v. Burwell, and finds that the purpose of this statute is crystal clear.

“If the statutory language is plain, we must enforce it according to its terms.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). Although the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context,” id., the statutory provisions in this case are clear in isolation and in context. The Affordable Care Act unambiguously appropriates money for Section 1401 premium tax credits but not for Section 1402 reimbursements to insurers. Such an appropriation cannot be inferred. None of Secretaries’ extra-textual arguments—whether based on economics, “unintended” results, or legislative history—is persuasive.

[In King], simply put, the statute could not function if interpreted literally; it had to be saved from itself. The problem the Secretaries have tried to solve here is very different: it is a failure to appropriate, not a failure in drafting. Congress’s subsequent inaction, not the text of the ACA, is what prompts the Secretaries to force the elephant into the mousehole. There are no inherent flaws in the ACA that keep Section 1402 payments from being paid, in advance or otherwise. None of the operative provisions becomes unworkable, as they did in King, when the relevant passage (31 U.S.C. § 1324(b)) is read plainly. . . . There is nothing in the ACA that prevents compliance. The funds simply must be appropriated.

Curiously, Feldman faults Congress for carefully comparing the statute with the Federal Government’s budgetary requests:

What you should know is that, like several of the other challenges before it, the current case arises from ingenious lawyers going over the massively long statute with a fine-toothed comb, trying to find drafting errors or other inconsistencies that would render the law unable to function.

When the executive branch asks for money, Congress says no, and then announces that it never needed the money all along, this is hardly going through it with a “fine-toothed comb” trying to “render the law unable to function.” Comparing statutes and budget requests is what analysts on the House Ways & Means Committee do. In Chapter 23 of Unraveled, I will go through the origin and history of House of Representatives v. Burwell.