In the town where I grew up, there was a gentleman who was known for his gruff demeanor. One day, it was said, he was sitting at his desk when a neighbor called him. “Your house is on fire!” he said.
“Well, is it bothering you?” the old man answered, and hung up the phone.
I tell this story to my students to illustrate the constitutional law principle of “standing to sue.” “Standing” made the news last week when Judge Rosemary Collyer of the U.S. District Court for the District of Columbia ruled that the House of Representatives, as a body, has “standing” to challenge the Obama administration’s method of funding part of the Affordable Care Act. Judge Collyer did not decide that the administration has done anything wrong. All her opinion said was that the House is actually claiming to be on fire, and actually claiming that Obama set the blaze.
Why do federal courts use the “house on fire” principle? Because, under the Constitution, federal courts are courts of “limited jurisdiction.” They can’t decide issues—even really, really important ones—just because people really, really want them to. The language of Article III limits federal courts to deciding “cases or controversies,” meaning real disputes where each party has something real—not just a difference of opinion about the law—in the game.
In House of Representatives v. Burwell, the House claims that the administration’s funding of one section of the ACA violates Congress’s famous “power of the purse.” The Constitution not only grants to Congress the power to tax and spend to “pay the debts and provide for the common defense and general welfare;” it adds that only Congress can authorize these payments (Article I Section 9 cl. 7: “No money shall be drawn from the Treasury, but in consequence of appropriations made by law”).
Neither side disputes the basic rules. The administration does not claim authority to spend without Congressional approval; it argues that Congress actually did make an appropriation; the House says that Congress did no such thing. There’s no easy answer to that question, because appropriating money isn’t a matter of magic words; if Congress passing a statute directing the executive to make certain expenditures, the executive may be required to fund them out of “lump-sum” appropriations (the entire sum approved for a given cabinet department) with no need for a special line item. Collyer will get to the issue of whose statutory reading is right later; first she had to decide that the House really could sue.
The idea of “legislative standing”—that a member of a legislative body, or the legislative body itself can sue the executive when it does something the legislature doesn’t like—has bounced around the federal courts for nearly a century. The claims often fall apart on the precise question of injury. If the executive simply ignores the “no appropriation” clause, then the House has a complete remedy—impeachment of the executive official responsible (up to and including the President); such a violation could also later be prosecuted under a federal statute called the Anti-Deficiency Act. But mere misinterpretation or misapplication of the law, the argument goes, doesn’t deprive any member of the House of his or her authority, or strip the body of its ability to enact law and appropriations. The legislature can amend the statute to remove any ambiguity.
The Court once held that a group of state legislators had standing to sue their secretary of state for (they claimed) wrongly certifying the legislature as having approved a constitutional amendment. Their claim was that this action nullified their votes. (It was a hollow victory: The Court immediately dismissed the case as a “political question.”) It has also held that a group of members of Congress did not have standing to challenge a law providing the president a line-item veto; the law took power from the House, Chief Justice William Rehnquist wrote, but did not injure these members in particular: “In the vote on the Line Item Veto Act, their votes were given full effect. They simply lost that vote.”
Last term, the Court upheld standing for the Arizona Legislature in its suit against the independent commission set up by voters to draw electoral districts. The initiative would “would ‘completely nullif[y]’ any vote by the Legislature” to draw districts, the Court reasoned, thus injuring the entire body, not just some members. (Another hollow victory; the Court then held that the voters had the power to evict the legislature from redistricting.)
But for a court to intervene in state-government disputes over the Constitution is one thing; the Constitution’s Supremacy Clause suggests that any branch of state government is liable to federal jurisdiction. As far as my research shows, however, this is the first time in American history that a judge has found that one of the Houses of Congress has standing to sue the president over appropriations.
Peter Shane of Ohio State University, a separation-of-powers guru, notes the difference: “Relying on theories of legislative standing that supported past federal lawsuits by state legislators ignores the separation of powers considerations that undergird standing law.” This is a fight between the other two co-equal branches; there is no Supremacy Clause to eliminate doubt about the Court’s authority.
It’s a portentous line to cross, because, as Vanderbilt Law Professor James F. Blumstein said in an interview, “there are a lot of risks in allowing the House to have institutional standing.” Deciding this question will involve the courts in the poisonous partisan atmosphere of the capital in 2015. On the other hand, Blumstein notes, “the strongest possible case [for standing] is in the appropriations context.” It is one thing to tell the House and the President to fight it out politically, Blumstein notes, but “when the House goes to war it does it with the power of the purse.” If Congress can’t stop appropriations, then that power is negated. A claim that the executive has usurped that power may really be a claim that the House is on fire.
As originally filed by the House, the claim against the administration had two main parts. In the first, the House argued that the administration had violated the Constitution by spending non-appropriated money; in the second, it claimed the administration was misapplying the law by delaying the employer mandate and making other decisions about how to roll out the ACA program. Collyer dismissed the second set of claims because they only “concern the implementation, interpretation, or execution of federal statutory law.”
But as Shane notes, even in the claim that remains, the real issue is not whether Obama has authority to spend money without authorization; it is whether the statute, properly read, authorized the spending. “I don't think [Judge Collyer’s] distinction holds up,” he said. “This is a case about the proper interpretation of the scope of an appropriation statute.”
Blumstein says that the decision “makes me nervous because you start down a path and don’t know where it’s going. But the courts have often said that the fact that you don’t want to go too far down a path doesn’t mean you don’t start down it.”