“Sue” Your Job: Congressional Inaction Taken to a New Level

by Deborah Steinberg


Photo of U.S. Capitol Building, available here

Before there was “Repeal and Replace,” there was House v. Burwell.[1] In 2014, the U.S. House of Representatives filed a lawsuit against the Democratic Administration for allegedly failing to implement several provisions of the Affordable Care Act (ACA) in the U.S. District Court for the District of Columbia.[2] A simple majority of Republican Representatives passed a House Resolution entitling Speaker Boehner to sue the Executive Branch to commence House v. Burwell,[3] which is currently on hold at the appellate level due to the anticipated overhaul of the American health care system.[4] Rejecting the majority of the allegations, the lower court ruled in favor of the House of Representatives on its claim that the Obama Administration was unconstitutionally funding the ACA because certain payments had never been authorized.[5] Beyond the lack of merits for this interpretation of the statute, the Court critically erred both in granting standing to the House and in denying the Administration’s motion for summary judgment, violating judicial precedent and the Constitution.[6] Consequently, the House Republicans could prevent lower and middle-income citizens from obtaining their benefits provided under the ACA, creating additional barriers to the accessibility of affordable healthcare without the fear of political accountability.[7]


Under the ACA, households with incomes between 100-250% of the Federal Poverty Level (FPL) are eligible for cost-sharing reductions (CSR) such that they do not need to pay the entire fee for coinsurance, copayments and deductibles. In practice, these payments take the form of federally-funded reimbursements to health insurance companies who are required to make these benefits available in the insurance Marketplaces.[8] While the ACA explicitly requires insurers to provide these subsidies, the statute fails to specify whether the reimbursements from the federal government will come from the mandatory budget automatically or if they will be appropriated from the discretionary budget each year.[9]

Since the enactment of the ACA, both Congress and the Administration have allocated the funding from the mandatory budget alongside the Advance Premium Tax Credits (APTC), which reimburse insurers for reducing the monthly insurance payments for households between 100-400% of the FPL.[10] Because both types of subsidies are reimbursed to insurers, provide the same function of reducing costs for low and middle income households, and are located in the same part of the statute, the Administration argues they have been correctly appropriating these funds.[11] This interpretation also reflects the Supreme Court’s recent ruling on the ACA regarding APTCs, which held that the statute should be read harmoniously and consistently, and considering the context and overall purpose of the law to reduce the cost of healthcare.[12] One could argue that it would be inconsistent with the goal of the statute, if not an absurd result, to remove the cost-sharing program since it would lead to greater instability in the Marketplace. Insurers would be liable for somewhere between $5 and $9 billion and would need to increase premium rates such that more households would forego insurance and the sicker population would pay more, or it would open the floodgates to endless litigation for reimbursement from the government.[13]

However, the Republican majority in the House of Representative argues that they intended to appropriate the CSRs through the discretionary budget when they wrote the ACA.[14] Specifically, they note the contrasting language in the provision governing the APTCs, which explicitly authorizes the reimbursements to be allocated through the mandatory budget, and therefore the silence in the subsequent provision would indicate the opposite intention. Id. While this is a valid interpretation of contextual silence, it disregards the fact that the ACA included explicit language for other provisions to be appropriated through the discretionary budget at least 17 times and the silence in the CSR statute could also indicate an intentional distinction between the sources of funding. Nonetheless, the Republicans use this logic as well as several contradictory statements made by Administrators contemporaneously with the enactment of the ACA to assert the Executive Branch has misinterpreted the law. Id. While legislative and even statutory history can be strong indications of intent in the presence of an ambiguous statute, the use of administrative agency staff members’ statements cannot plausibly suggest Congressional intent, particularly when all subsequent actions followed the alternative interpretation.[15] Nonetheless, The House argues the Administration violated the Constitution by taking power away from Congress, disregarding the legislative process, and bypassing the Appropriations Clause.[16]

An even more absurd result of this litigation is the fact that the House of Representatives was granted standing to sue in the first place. Plaintiffs must suffer a concrete and discrete injury to bring suit in an Article III court.[17] The House claimed it was “injured, and will continue to be injured, by defendants’ unconstitutional actions which, among other things, usurp the House’s legislative authority.”[18] This assertion lacks merit because the legislative authority of the House of Representatives is constitutionally bound to the Senate through bicameralism and presentment,[19] and the Senate never even considered the House’s resolution let alone this interpretation of the ACA.[20] Standing also requires that the plaintiff exhaust all other remedies, yet the House never attempted to use any of its readily available and constitutionally allocated powers to resolve this grievance.[21] The failure to pass new legislation on the matter is especially pertinent since the House’s current interpretation contradicts all of their previous legislative actions, including appropriating the CSR reimbursements through the mandatory budget every year since the ACA’s enactment.[22] It is also noteworthy that the House has chosen to keep the lawsuit on hold, thereby not implementing the decision of the lower court, despite the concurring views of the new Defendant.[23]

Furthermore, in bringing this lawsuit, the House of Representatives violated the very provisions of the Constitution over which it sued the Executive. In essence, the House was taking power away from the Senate, ignoring the legislative process by failing to go through bicameralism and presentment, and effectively granting the Judiciary the power to legislate and appropriate funds through judiciary review. See id. Most absurdly, the District Court granted standing because it denied that it was engaging in statutory interpretation at all, asserting that the issue was within the Court’s jurisdiction because looking to the statute to determine its meaning was merely antecedent to the constitutional question.[24] Both the House and the Court circumvented the Constitution and precedential common law by using judicial review to resolve a purely political disagreement between the Legislative and Executive Branches.[25] In doing so, they blatantly disregarding the separation of powers, the safeguards of democracy, and multiple theories of justiciability at the expense of at least six million low – and middle-income citizens.[26]


[1] This article primarily covers the lawsuit through the 2017 inauguration prior to its current incarnation as House v. Price, reflecting the change of the Secretary of Health and Human Services. See Kimberly Leonard, GOP Moves to Delay Obamacare Lawsuit, U.S. News & World Rep. (Feb. 21, 2017), https://www.usnews.com/news/health-care-news/articles/2017-02-21/in-house-v-price-gop-moves-to-delay-obamacare-undoing.

[2] Complaint, House v. Burwell, 130 F. Supp. 3d 53 (D.D.C. 2014) (No. 14-cv-01967), 2014 WL 6492097, at *3-4.

[3] H.R. Res. 676, 113th Cong. (2014) (enacted).

[4] See Timothy Jost, House seeks pause in cost-sharing reduction litigation (updated), Health Aff. (Nov. 22, 2016), http://healthaffairs.org/blog/2016/11/22/house-seeks-pause-in-cost-sharing-reduction-litigation/.

[5] Id.

[6] See Brief for Appellants at 14, House v. Burwell, No. 16-5202 (D.C. Cir. Oct. 24, 2016).

[7] See Linda J. Blumberg & Matthew Buettgens, The Implications of a Finding for the Plaintiffs in House v. Burwell, Urb. Inst., 1 (Jan. 2016), http://www.urban.org/sites/default/files/alfresco/publication-pdfs/2000590-The-Implications-of-a-Finding-for-the-Plaintiffs-in-House-v-Burwell.pdf.

[8] CSRs are not available for households below 100% of the Federal Poverty Level because the statute anticipated that all states would expand Medicaid to cover those individuals, but some states chose not to do so after the Supreme Court concluded this provision would be coercive for the states. See NFIB v. Sebelius, 132 S.Ct. 2566 (2012).

[9] See Complaint, supra note 1.

[10] See Brief for Appellants, supra note 5.

[11] Id.

[12] See King v. Burwell, 135 S.Ct. 2480 (2015).

[13] See Timothy Jost, The House and the ACA – A Lawsuit Over Cost-Sharing Reductions, New England J. of Med. (Jan. 2016), http://www.nejm.org/doi/full/10.1056/NEJMp1513600?af=R&rss=currentIssue&#t=article; see also Kimberly Leonard, GOP Moves to Delay Obamacare Lawsuit, U.S. News & World Report (Feb. 21, 2017), https://www.usnews.com/news/health-care-news/articles/2017-02-21/in-house-v-price-gop-moves-to-delay-obamacare-undoing.

[14] See Complaint, supra note 1, at *3.

[15] See Harris Meyer, House Republicans seek delay in case to end ACA cost-sharing subsidies, Mod. Healthcare (Nov. 21, 2016), http://www.modernhealthcare.com/article/20161121/NEWS/161129982.

[16] Id., at *2. (citing U.S. Const. art. I, §§ 1, 7, and 9) (specifically arguing that the House has a unique role in the Appropriations Process because the Constitution specifies that appropriations bills must start in the House of Representatives).

[17] See U.S. Const. art. III, § 2, cl. 1.

[18] Complaint, supra note 1, at *18.

[19] U.S. Const. art. I, § 7.

[20] H.R. Rep. No. 113-561 pt. 1, at 23 (2014).

[21] See Daren Bakst, 5 Ways Congress Can Push Back on Obama’s Executive Action on Immigration, Daily Signal (Nov. 24, 2014), http://dailysignal.com/2014/11/24/5-ways-congress-can-push-back-obamas-executive-actions-immigration/ (addressing other ways the legislature can interfere with the Executive Branch, including refusing to conduct hearings on Presidential appointments, or even shutting down the government).

[22] See H.R. Rep. No. 113-561 pt. 1, at 21 (2014).

[23] See Paul Waldman, Commentary: Republicans suddenly realize destroying the health-care system might be a bad idea, Chi. Trib. (Feb. 22, 2017), http://www.chicagotribune.com/news/opinion/commentary/ct-republicans-destroy-health-care-obamacare-20170222-story.html.

[24] See Memorandum Opinion at *76-77, House v. Burwell, 130 F. Supp. 3d 53 (D.D.C. 2014), modified, No. 14-1967 (RMC), 2016 WL 2750934, (D.D.C. May 12, 2016), appeal docketed, No. 16-5202; House v. Burwell, No. 14-1967 (RMC), 2016 WL 2750934, at *1 (D.D.C. May 12, 2016), appeal docketed, No. 16-5202.

[25] Simon Lazarus, The Obama Administration’s Lawful Decision to Fund Affordable Care Act Cost-Sharing Subsidies, Am. Const. Soc’y for L. & Pol’y (July 18, 2016), http://www.acslaw.org/acsblog/the-obama-administration%E2%80%99s-lawful-decision-to-fund-affordable-care-act-cost-sharing; see also Paul Waldman, Commentary: Republicans suddenly realize destroying the health-care system might be a bad idea, Chi. Trib. (Feb. 22, 2017), http://www.chicagotribune.com/news/opinion/commentary/ct-republicans-destroy-health-care-obamacare-20170222-story.html.

[26] See id.; see also Kimberly Leonard, GOP Moves to Delay Obamacare Lawsuit, U.S. News & World Rep. (Feb. 21, 2017), https://www.usnews.com/news/health-care-news/articles/2017-02-21/in-house-v-price-gop-moves-to-delay-obamacare-undoing.