September 10, 2015

SOME THOUGHTS ON JUDGE COLLYER’S OPINION ON THE HOUSE LAWSUIT: As I reported yesterday, federal district judge Rosemary Collyer defied the predictions of numerous pundits by ruling that the House of Representatives’ lawsuit against the Obama Administration–challenging various rules implementing Obamacare–may move forward to the merits. Now that I’ve had some time to digest Judge Collyer’s opinion, I will offer a few observations.

First, as someone who has been deeply involved in this issue, I do believe Judge Collyer’s opinion is good news. While it has always been the case that this lawsuit will take years to fully resolve–possibly even until after President Obama leaves office–those who criticize the lawsuit for this ineluctable reality misunderstand what the lawsuit is about. It is not about President Obama, as an individual, but about the constitutional obligation of the President to “faithfully execute” the laws, and his related obligation not to spend money that Congress has not appropriated. Pursuing litigation to clarify the importance of these constitutional obligations is important, regardless of when such clarification comes.

A judicial determination that a President lacks power to unilaterally rewrite unambiguous laws or appropriate money is important as a matter of constitutional principle, and will prevent future presidents from behaving in similarly unconstitutional ways.

Second, while Judge Collyer fully embraces the notion that Congress, as an institution, has standing to vindicate an injury to its constitutional prerogatives, she oddly (and in my opinion, inconsistently) concludes that the House’s claims relating to President Obama’s abuse of Congress’s appropriations power may move forward, but not its claims relating to his abuse of Congress’s legislative power. This is an artificial and unsustainable bifurcation.

Specifically, Judge Collyer concludes that “[d]espite its formulation as a constitutional claim, the Employer-Mandate Theory is fundamentally a statutory argument” that is no more than a complaint that the “Executive Branch is misinterpreting a statute . . . .” Because the employer-mandate claim is “merely” a claim that the President has “misinterpreted” a statute, Collyer asserts that “other litigants” are “free to sue” over such mere misinterpretation.

But this overlooks the fact that all federal courts–including the Seventh and Eleventh Circuits– that have considered such private-party lawsuits challenging the Administrations “mere” misinterpretation of the Obamacare employer mandate have been unable to pursue such claims, due to their own lack of standing. More importantly, if the House’s appropriations claim is sufficient to establish standing because, in Judge Collyer’s words, of Congress’s “unique role in the appropriations process prescribed by the Constitution,” then its employer-mandate claim should also be sufficient because of Congress’s “unique role” in the legislative process, and the President’s unique constitutional duty to take care that the laws passed by Congress are “faithfully” executed.

While I dispute Judge Collyer’s artificial bifurcation of the House’s appropriations-related claim as “constitutional” and its employer mandate-related claim as “statutory,” I give her much credit for recognizing that the legislative branch is not an institutional orphan, incapable of vindicating its constitutional prerogatives. To hold otherwise would be to allow the President to eviscerate the separation of powers.

Third, I also give Judge Collyer credit for rejecting the specious argument that the House lawsuit was a “political question” that is not justiciable by courts. The political question doctrine is invoked only in those rare situations when there are no ascertainable standards by which the judiciary can resolve an issue, which appears to have been textually committed by the Constitution’s text to the sole discretion of one of the two political branches (Congress or the Executive).

The PQD doctrine is not invoked merely because a constitutional question has important political ramifications–most constitutional questions do (think gay marriage, abortion, or any lawsuit challenging the constitutionality of any presidential act).  As Judge Collyer noted, the House’s constitutional claims against the President present “pure questions of constitutional interpretation” for which there are ample, “familiar judicial techniques [] available to construe the meaning . . . .” She correctly noted that, since Marbury v. Madison (1803), the federal courts have been both willing and able to “say what the law is,” even in separation of powers’ disputes among Congress and President.

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