U.S. House of Representatives v. Burwell

• Decision Date: 09 September 2015
• Docket Number: Civil Action No. 14–1967 (RMC)
• Citation: 130 F.Supp.3d 53
• Court: U.S. District Court — District of Columbia
• Parties: United States House of Representatives, Plaintiff, v. Sylvia Matthews Burwell in her official capacity as Secretary of the United States Department of Health and Human Services, et al., Defendants.

130 F.Supp.3d 53

United States House of Representatives, Plaintiff,

v.Sylvia Matthews Burwell in her official capacity as Secretary of the United States Department of Health and Human Services, et al., Defendants.

Civil Action No. 14–1967 (RMC)

United States District Court, District of Columbia.

Signed September 9, 2015

Eleni Maria Roumel, Isaac Benjamin Rosenberg, Kerry William Kircher, Kimberly Ann Hamm, Todd Barry Tatelman, William Bullock Pittard, IV, U.S. House of Representatives, Jonathan Robert Turley, George Washington University Law School, Washington, DC, for Plaintiff.

Joel L. McElvain, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

Article I of the United States Constitution established the Congress, which comprises a House of Representatives and a Senate. U.S. Const. art. I, § 1. Only these two bodies, acting together, can pass laws—including the laws necessary to spend public money. In this respect, Article I is very clear: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law...." U.S. Const. art. I, § 9, cl. 7.

Through this lawsuit, the House of Representatives complains that Sylvia Burwell, the Secretary of Health and Human Services, Jacob Lew, the Secretary of the Treasury, and their respective departments (collectively the Secretaries) have spent billions of unappropriated dollars to support the Patient Protection and Affordable Care Act. The House further alleges that Secretary Lew and Treasury have, under the guise of implementing regulations, effectively amended the Affordable Care Act's employer mandate by delaying its effect and narrowing its scope.

The Secretaries move to dismiss, arguing that the House lacks standing to sue. They argue that only the Executive has authority to implement the laws, and urge this Court to stay out of a quintessentially political fight in which the House is already well armed. The House opposes, adamant that it has been injured in several concrete ways, none of which can be ameliorated through the usual political processes.

The only issue before the Court is whether the House can sue the Secretaries; the merits of this lawsuit await another day. Although no precedent dictates the outcome, the case implicates the constitutionality of another Branch's actions and thus merits an "especially rigorous" standing analysis. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, –––U.S. ––––, 135 S.Ct. 2652, 2665 n. 12, 192 L.Ed.2d 704 (2015). The House sues, as an institutional plaintiff, to preserve its power of the purse and to maintain constitutional equilibrium between the Executive and the Legislature. If its non-appropriation claims have merit, which the Secretaries deny, the House has been injured in a concrete and particular way that is traceable to the Secretaries and remediable in court. The Court concludes that the House has standing to pursue those constitutional claims.

In contrast, the House's claims that Secretary Lew improperly amended the Affordable Care Act concern only the implementation of a statute, not adherence to any specific constitutional requirement. The House does not have standing to pursue those claims. The Secretaries' motion to dismiss will be denied as to the former and granted as to the latter.

I. FACTS

Some background is necessary on the appropriations process under our Constitution, the workings of the statute at issue, and how this case came about. The facts alleged in the House's complaint must be taken as true in this procedural posture. Baird v. Gotbaum, 792 F.3d 166, 169 n. 2 (D.C.Cir.2015).

A. Constitutional Overview

Congress passes all federal laws in this country. U.S. Const. art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States[.]"). That includes both laws that authorize the expenditure of public monies and laws that ultimately appropriate those monies. Authorization and appropriation by Congress are nonnegotiable prerequisites to government spending: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law...." U.S. Const. art. I, § 9, cl. 7 ; see alsoUnited States v. MacCollom, 426 U.S. 317, 321, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976) ("The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress."). The distinction between authorizing legislation and appropriating legislation is relevant here and bears some discussion.

Authorizing legislation establishes or continues the operation of a federal program or agency, either indefinitely or for a specific period. GAO Glossary at 15.¹ Such an authorization may be part of an agency or program's organic legislation, or it may be entirely separate. Id. No money can be appropriated until an agency or program is authorized, although authorization may sometimes be inferred from an appropriation itself. Id.

Appropriation legislation "provides legal authority for federal agencies to incur obligations and to make payments out of the Treasury for specified purposes." Id. at 13. Appropriations legislation has "the limited and specific purpose of providing funds for authorized programs."

Andrus v. Sierra Club, 442 U.S. 347, 361, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979) (quoting TVA v. Hill, 437 U.S. 153, 190, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) ). An appropriation must be expressly stated; it cannot be inferred or implied. 31 U.S.C. § 1301(d). It is well understood that the "a direction to pay without a designation of the source of funds is not an appropriation." U.S. Government Accounting Office, GAO–04–261SP, Principles of Federal Appropriations Law (Vol.I) 2–17 (3d ed. 2004) (GAO Principles ). The inverse is also true: the designation of a source, without a specific direction to pay, is not an appropriation. Id. Both are required. SeeNevada, 400 F.3d at 13–14. An appropriation act, "like any other statute, [must be] passed by both Houses of Congress and either signed by the President or enacted over a presidential veto." GAO Principles at 2–45 (citing Friends of the Earth v. Armstrong, 485 F.2d 1, 9 (10th Cir.1973) ; Envirocare of Utah Inc. v. United States, 44 Fed.Cl. 474, 482 (1999) ).

Appropriations come in many forms. A "permanent" or "continuing" appropriation, once enacted, makes funds available indefinitely for their specified purpose; no further action is needed from Congress. Nevada, 400 F.3d at 13 ; GAO Principles at 2–14.² A "current appropriation," by contrast, allows an agency to obligate funds only in the year or years for which they are appropriated. GAO Principles at 2–14. Current appropriations often give a particular agency, program or function its spending cap and thus constrain what that agency, program, or function may do in the relevant year(s). Most current appropriations are adopted on an annual basis and must be re-authorized in each fiscal year. Such appropriations are an integral part of our constitutional checks and balances, insofar as they tie the Executive Branch to the Legislative Branch via purse string.

B. Statutory Overview

The 111th Congress enacted the Patient Protection and Affordable Care Act, Pub.L. No. 111–148, 124 Stat. 119 (2010) (ACA), "to increase the number of Americans covered by health insurance and decrease the cost of health care." Nat'l Fed'n of Indep. Bus. v. Sebelius, ––– U.S. ––––, 132 S.Ct. 2566, 2580, 183 L.Ed.2d 450 (2012) ; see alsoKing v. Burwell, –––U.S. ––––, 135 S.Ct. 2480, 2485, 192 L.Ed.2d 483 (2015) ("The [ACA] adopts a series of interlocking reforms designed to expand coverage in the individual health insurance market."). No party disputes here whether the ACA was validly adopted by both houses of Congress and signed into law by the President.³

1. Subsidies under Sections 1401 and 1402 of the Affordable Care Act

The ACA provides monetary subsidies in several forms; two are relevant here. First, in order to assist certain individuals with the cost of insurance on the newly-established exchanges, Congress enacted a "premium tax credit" under the Internal Revenue Code for coverage of statutory beneficiaries with household incomes from 100% to 400% of the federal poverty level. See 26 U.S.C. § 36B ; 42 U.S.C. §§ 18081, 18082 ; King, 135 S.Ct. at 2487. These premium tax credits were enacted in Section 1401 of the ACA, and the Court will therefore refer to this subsidy as the "Section 1401 Premium Tax Credit."

Second, Section 1402 of the ACA requires insurers to reduce the cost of insurance to certain, eligible statutory beneficiaries. See 42 U.S.C. § 18071(a)(2). Specifically, these "cost-sharing" provisions require insurance companies that offer qualified health plans through the ACA to reduce the out-of-pocket cost of insurance coverage for policyholders who qualify. See generallyid. § 18071.⁴ The federal government then offsets the added costs to insurance companies by reimbursing them with funds from the Treasury. See 42 U.S.C. § 18071(c)(3) ("An issuer of a qualified health plan making reductions under this subsection shall notify the Secretary of such reductions and the Secretary shall make periodic and timely payments to the issuer equal to the value of the reductions."). The Court will refer to this subsidy as the "Section 1402 Cost–Sharing Offset."

Eligibility determinations for either subsidy can be made in advance, as can payments. See 42 U.S.C. § 18082(a)(1) (requiring the Secretaries of Health and Human Services (HHS) and Treasury to consult and establish a program to make advance determinations "with respect to the income eligibility of individuals ... for the premium tax credit allowable under section 36B of title 26 and the cost-sharing reductions under section 18071"). The Section 1401 Premium Tax Credits are paid directly to insurance companies, who then "reduce the premium charged the insured for any...