It’s (Probably Not) Complicated: The House Lacks Standing in Nagarwala

A commentator has observed that “[t]he Supreme Court’s and lower federal courts’ jurisprudence on legislative standing is complicated.” Bradford C. Mank, Does a House of Congress Have Standing Over Appropriations?: The House of Representatives Challenges the Affordable Care Act, 19 U. Pa. J. Const. L. 141, 143 (2016). Generally speaking, this is true. A series of Supreme Court decisions over the past two decades have produced mixed and often inconclusive results, which tell us something about the views of individual justices but provide little in the way of definitive answers from the Court as a whole.

We know, for example, that there are two current justices at the most liberal/permissive end of the spectrum on legislative standing. Justice Breyer would have held that individual federal legislators had standing to challenge the constitutionality of the Line Item Veto Act (he was joined in this view only by the now-retired Justice Stevens). See Raines v. Byrd, 521 U.S. 811, 838 (1997) (Breyer, J., dissenting). In subsequent cases that presented the question whether state or federal legislative bodies had institutional standing, Justice Breyer supported legislative standing in each case. See Va. House of Delegates v. Bethune-Hill, No. 18-281 (June 17, 2019) (Virginia house of delegates); Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. __ (2015) (both houses of Arizona legislature); United States v. Windsor, 570 U.S. 744 (2013) (U.S. House of Representatives); Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999) (U.S. House).

Justice Alito has also staked out what Professor Mank calls a “novel” and “broad” approach to legislative standing. See 19 U. Pa. J. Const. L. at 183, 189. In Windsor, although a majority of the Court found it unnecessary to  resolve the question of congressional standing, Justice Alito opined that “in the narrow category of cases in which a court strikes down an Act of Congress and the Executive declines to defend the Act, Congress both has standing to defend the undefended statute and is a proper party to do so.” Similarly, in this term’s Bethune-Hill decision, Alito (writing for himself, the chief justice, and Justices Breyer and Kavanaugh) would have found that the Virginia house of delegates had standing to defend the constitutionality of a redistricting plan passed by the Virginia general assembly. The Bethune-Hill majority, however, held that the Virginia house, “as a single chamber of a bicameral legislature,” lacked standing to assert an injury (invalidation of the redistricting plan) which had been suffered by the legislature as a whole.

Which brings us to the pending motion of the U.S. House of Representatives to intervene in United States v. Nagarwala, No. 19-1015 (6th Cir.). Nagarwala involves a criminal prosecution of individuals in Michigan for practicing female genital mutilation in violation of a federal statute, 18 U.S.C. § 116(a). The district court dismissed these charges on the ground that the statute exceeded Congress’s enumerated powers. The Justice Department initially filed a notice of appeal, but subsequently informed Congress pursuant to 28 U.S.C. § 530D(a)(i)(B)(ii) that it lacked a reasonable basis to defend the constitutionality of the law and therefore would not pursue an appeal. The House, through the Bipartisan Legal Advisory Group (BLAG), moved to intervene in the case to defend the constitutionality of the statute. Unlike other issues of legislative standing that may present themselves in the coming months, this one is fairly straightforward.  Continue reading “It’s (Probably Not) Complicated: The House Lacks Standing in Nagarwala”

BLAG’s Authority to Represent the House in Court

 

See Update Here

On February 11, 2019, the new General Counsel of the House, Douglas N. Letter, filed an amicus brief in U.S. Dept of Commerce v. State of New York, the case that challenges the Trump administration’s decision to add a citizenship question to the 2020 census. A federal district court ruled that the addition of the question violated the Administrative Procedure Act, and the Solicitor General sought a writ of certiorari before judgment from the Supreme Court. Letter’s brief argues that the district court’s decision is correct and urges the Court, should it decide to hear the case, to do so promptly in order to avoid disruption or delay in the census. (The Court has now agreed to hear the case on an expedited basis, with argument scheduled for late April).

I have nothing to say, at least at the moment, about the merits of this dispute, but I do have an observation about the caption of the brief, which is styled “Brief of Amicus Curiae United States House of Representatives in Support of Respondents.” This caption took me by surprise because during my time in the House General Counsel’s Office amicus briefs reflecting House institutional positions were filed in the name of the Bipartisan Legal Advisory Group (BLAG), rather than in the name of the House itself (unless the House actually voted on the matter, which rarely if ever happened).

It turns out that I had somehow overlooked a small but potentially important change to House rules which took place in 2015 at the outset of the 114th Congress. House Rule II(8), which provides the authority for the House Office of General Counsel, was amended to include the following subparagraph (b):

There is established a Bipartisan Legal Advisory Group composed of the Speaker and the majority and minority leaderships. Unless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.

Continue reading “BLAG’s Authority to Represent the House in Court”

Court Rejects Justice Department Plan to Avoid the Merits of House’s Obamacare Lawsuit

Yesterday Judge Collyer rejected the Justice Department’s motion to certify for interlocutory appeal her ruling that the House has standing to pursue its claim that the Obama administration has illegally spent billions of dollars in “cost-sharing” payments to insurance companies under the Affordable Care Act. The Justice Department had candidly admitted that it wanted an immediate appeal in part to avoid the “potential political ramifications” of an adverse judgment on the merits, which it seems to fully expect. See DOJ Reply Brief at 7.

The court, however, apparently did not think that saving the administration from the political embarrassment of a loss on the merits was a valid reason for certification. Instead, it emphasized that allowing an immediate appeal was unnecessary because the merits of the case can be resolved quickly. The “facts are not in dispute,” the court notes, and “[d]ispositive motions can be briefed and decided in a matter of months—likely before an interlocutory appeal could even be decided.”

The judge set an aggressive briefing schedule that will be complete by January 18. As much as the administration would like to avoid the question of where it got the legal authority to spend billions of taxpayer dollars, it better start thinking of its defense.

Congressional Standing to Protect the Power of the Purse

Do you remember how last summer I suggested the House’s odds of prevailing (in particular, with respect to standing) in a potential Obamacare lawsuit were in the vicinity of the proverbial snowball’s chance in hell? You don’t? Good, because that turns out to be not exactly correct.

To be fair (to myself), I was discussing a somewhat different lawsuit than the one the House ended up bringing. As originally explained by Speaker Boehner, the purpose of the suit was “to compel the president to follow his oath of office and faithfully execute the laws of our country.” Specifically, it was understood that the proposed lawsuit would “focus on the Obama administration’s implementation of the Affordable Care Act, particularly the failure to implement the employer mandate in accordance with the January 1, 2014 effective date set forth in the law.”

The House ultimately ended up bringing suit against the Secretaries of HHS and Treasury for disregarding the employer mandate deadline specified in the ACA and for reducing the statutory percentage of employees who are required to be offered insurance under that mandate. These are essentially the claims we anticipated before the suit was filed (although the House wisely decided to bring them against cabinet officials rather than the president).

In addition to these employer mandate claims, however, the House alleged that the defendants had illegally spent billions of dollars in “cost-sharing” payments to insurance companies under the ACA. Such payments were made pursuant to section 1402 of the ACA in order to compensate insurance companies for reducing the out-of-pocket cost of insurance for lower income beneficiaries.

According to the House’s complaint, payments under section 1402 must be funded through the normal annual appropriations process. Although the administration initially recognized this by submitting an FY 2014 appropriations request for these payments, it changed its position after Congress refused to appropriate the funds. Beginning in January 2014, the administration drew and spent money from permanent appropriations to make the section 1402 payments. The House maintains that this was illegal and unconstitutional because there was no permanent appropriation that covered these payments.

Continue reading “Congressional Standing to Protect the Power of the Purse”

Congressional Standing to Sue: A Response to Grove and Devins on the History of Congressional Litigation

William and Mary law professors Tara Leigh Grove and Neal Devins have written this article arguing for “a limited congressional power to represent itself in court.” Specifically, they argue that while the House or Senate may enforce subpoenas (including subpoenas directed to the executive branch) in court, neither house may intervene in federal litigation to defend the constitutionality of federal statutes where the executive branch refuses to do so.

Professor Jack Beermann responds to Grove and Devins here. He disagrees with one of their conclusions, noting “there is no constitutional provision that can fairly be interpreted to prohibit Congress or one House of Congress from defending the constitutionality of a duly enacted federal statute.” Moreover, although Beermann agrees with Grove and Devins that the House or Senate may litigate in support of the investigatory power, he largely disagrees with their reasoning on this point also.

I think Beermann has by far the better of this argument, and it is tempting to let the matter rest there. But I think it worthwhile to correct at least one part of their thesis that Beermann accepts largely without challenge. Grove and Devins contend that the history of congressional involvement in litigation supports the distinction they draw between the investigatory power and other types of cases, including the defense of the constitutionality of federal law.  They say:

Historical practice supports our argument for a limited congressional power to represent itself in court. From 1789 until modern times, the House and the Senate asserted the power to conduct investigations and to litigate any disputes related to those investigations. By contrast, Congress historically delegated control over all other federal litigation to the executive. That was true even when the executive declined to defend a federal law. Although members of Congress occasionally participated as amici in such cases, neither Congress nor its components asserted the power to intervene on behalf of federal laws. This historical pattern remained unchanged until 1983, when the Supreme Court—with virtually no explanation—permitted intervention by the House and Senate counsel in INS v. Chadha.

This description, however, is misleading. To understand why, it is helpful to focus on Congress’s overall practices with regard to litigation in the pre-Watergate era. During the 1970s, particularly during Watergate itself, Congress became (somewhat) more litigious, reflecting factors such as (1) the increasing litigiousness of society itself, (2) an increasing tendency to see congressional-executive disputes as essentially legal in nature and (3) the development of institutional legal offices in both Houses. The intervention of the House and Senate counsel in the 1983 Chadha case must be seen against that background.

Continue reading “Congressional Standing to Sue: A Response to Grove and Devins on the History of Congressional Litigation”

Some Preliminary Thoughts on the House Rules Hearing

Last Wednesday, July 16, 2014, the House Rules Committee held a five-hour hearing to consider a draft resolution “providing for authority to initiate litigation for actions by the President inconsistent with his duties under the Constitution of the United States.” It has been decided, although it is unclear whether this decision has yet been formalized in any way, that the potential litigation will focus on the Obama administration’s implementation of the Affordable Care Act, particularly the failure to implement the employer mandate in accordance with the January 1, 2014 effective date set forth in the law.

Notwithstanding some media reports that focused on trivialities (see, for example, Dana Milbank’s snarky and unfair coverage of the hearing as “an amateur hour—or an amateur five hours”), there was a good deal of serious discussion and more agreement than might have been expected on some important points. One point in particular stands out: every witness and member who spoke to the issue seemed to agree that there has been a serious erosion of congressional power in recent decades and that Congress has failed to act in self defense when faced with presidents who seek to aggrandize their power at the expense of the legislative branch.

Not surprisingly, this was most evident from the majority members of the Committee, who repeatedly expressed concern about the increasing power of the executive branch, and the majority’s star witness, Professor Jonathan Turley, who testified that the rise of an “uber-presidency” is causing our constitutional system to change in a “dangerous and destabilizing way.” Turley said the executive branch has “bled away” a lot of congressional authority and argued that the House must “take a stand” to re-establish some degree of constitutional balance.

But these concerns were not limited to the Republican side. For example, when Turley said that the Framers expected that the House would stand up for its institutional prerogatives, Representative Louise Slaughter, the Ranking Member, nodded in agreement. Although Slaughter indicated in no uncertain terms that she would not be supporting the resolution, she also said there were “genuine issues of executive overreach” by “modern presidents,” a category from which she did not exempt the incumbent.

The minority witnesses also acknowledged the problem. Simon Lazarus of the Constitutional Accountability Center recognized the relative decline of Congress with respect to the other two branches as a development that “definitely has occurred” and is “regrettable.” Professor Walter Dellinger, who like Lazarus was called by the minority in opposition to the resolution, also acknowledged that there has in fact been an erosion of congressional power in recent years. At Dellinger’s words, Slaughter and Representative Jim McGovern both nodded in vigorous agreement, with McGovern expostulating “yes, yes” or something to that effect.

There was also a good deal of agreement on the difficulty that the House would face in trying to establish standing to bring such a lawsuit. Although Professor Elizabeth Foley gamely made the case that the courts ought to recognize the House’s standing under the circumstances presented, no one (with the possible exception of Foley herself) appeared to think this was a likely outcome. Turley, for example, acknowledged that the President “has the advantage on standing.” Lazarus suggested that while there was some possibility the courts might recognize the House’s standing, everyone would agree it would be an “uphill climb.” Meanwhile, Slaughter and Dellinger had a field day citing statements by conservatives hostile to legislative standing in general and to this lawsuit in particular. Slaughter, for example, quoted Andrew McCarthy’s description of the lawsuit as “feckless” and his warning that the House’s theory of standing would lead to “vexatious congressional lawsuits.” The Republican members of the committee didn’t so much take issue with these views as argue that they have no other viable options to contain the expansion of executive power.

But is it true that there are no other viable options? To answer that question, we must drill down on the legal issue presented by the extension of the employer mandate. Which I will take up in my next post.

 

U.S. House of Representatives v. Obama: The Problem of Standing

There are a number of reasons why the proposed lawsuit by the House against President Obama is likely to be futile (or worse). Andrew McCarthy does an admirable job of laying many of them out here and here. Today I will address only one issue, the question of the House’s standing, from what may be a unique perspective.

This post is not about whether the House “ought” to be found to have standing as a matter of legal theory. I have no strong views on how much of modern standing doctrine can properly be derived from the Constitution’s “case or controversy” language and how much is an ahistorical judicial invention. On these questions see Professor Ramsey here and Professor Epstein here.

Nor would I argue that the House’s standing is foreclosed by controlling Supreme Court precedent. The Court has left the door open to institutional lawsuits by the House or Senate under certain circumstances and I assume that it could, if it wished, open that door wide enough to allow the House’s suit here. As discussed below, the reasoning of Raines v. Byrd, 521 U.S. 811 (1997), cuts against the standing theory offered by David Rivkin and Professor Foley in support of the House’s suit, but that is not my primary point.

The main point of this post is to explain why, IMHO, the courts will not in fact recognize the House’s standing to bring suit “to compel the president to follow his oath of office and faithfully execute the laws of our country,” as the Speaker’s June 25 memo puts it. Whether this result is best explained by a coherent theory of standing, sound constitutional policy, or naked judicial self-interest, I leave to the reader to decide.

Continue reading “U.S. House of Representatives v. Obama: The Problem of Standing”

Common Cause’s Impossible Dream: Act II

Not surprisingly, the D.C. Circuit has affirmed the district court’s dismissal of Common Cause’s challenge to the constitutionality of the filibuster. Like the court below, the appellate panel found the plaintiffs lacked standing to sue, but its rationale was somewhat different. The district court’s decision was rooted in the absence of a cognizable injury and the court’s lack of power to remedy the harm allegedly caused by the filibuster rules (namely Congress’s failure to enact two pieces of legislation, the Dream Act and the Disclose Act, that would have benefitted the plaintiffs). It also concluded that the suit was barred by the political question doctrine.

The D.C. Circuit, on the other hand, “focus[ed] on whom Common Cause chose to sue—or, more to the point, not to sue.” The Senate, of course, is responsible for enacting and enforcing its own rules, yet Common Cause did not name the Senate or any senator as a defendant. Instead, it sued the Vice President and three Senate officers.

This was a transparent ploy to circumvent the Speech or Debate Clause, which would certainly have required the dismissal of any suit against the Senate or particular senators. As the court points out, what defeated the Dream and Disclose Acts was “legislative action, activity typically considered at the heart of the Speech or Debate Clause.” There was, however, no need to decide whether the Clause barred suit against the Vice President and Senate officers because these were simply the wrong defendants.

The court was unimpressed by Common Cause’s reliance on Powell v. McCormack, 395 U.S. 486 (1969), in which a member of the House was able to challenge his expulsion by suing the Sergeant at Arms to recover back salary. As we have discussed before, the Sergeant at Arms was responsible for paying Powell’s salary and thus could be said to have caused this very specific injury to the plaintiff. But nothing in the Supreme Court’s decision suggests that congressional officers can be used generally as stand-ins whenever someone wants to challenge an allegedly illegal House or Senate action.

In contrast to the situation in Powell, the court notes “Common Cause does not identify anything the defendants did (or refrained from doing) to cause its alleged injuries.” The only remotely plausible link is the Vice President’s role as presiding officer of the Senate, but any ruling by the presiding officer is subject to appeal to the full chamber. Thus, even if the Vice President had been presiding at the time of the votes Common Cause complains of (which he was not), and even if he had ruled on a relevant issue (which he did not), it would still be the Senate, not the Vice President, that caused the alleged injury.

Accordingly, Common Cause’s failure to sue the Senate or any senator leaves it “Hoist with [its] own petar,” as the court puts it, quoting Hamlet (act 3, scene 4, if you were wondering).

To appeal or not to appeal, that is the question. Perhaps Common Cause’s quixotic quest (to mix metaphors) will yet have a third act. Or perhaps it will decide it is nobler in the mind to suffer the slings and arrows of outrageous fortune. Only time will tell.

Senator Johnson’s Obamacare Standing

 

Update: oops, I have been reminded that the Tenth Circuit in Schaffer v. Clinton, 240 F.3d 878, 885-86 (10th Cir. 2001), rejected the D.C. Circuit’s Boehner v. Anderson conclusion and held that a member of Congress lacked standing to complain of a pay increase that allegedly violated the Twenty-Seventh Amendment. Schaffer isn’t cited in DOJ’s motion to dismiss either.

 

Senator Ron Johnson (R-Wisc.) has brought a lawsuit against OPM in the U.S. District Court for the Eastern District of Wisconsin in which the senator, along with one of his aides, challenges OPM’s regulations related to congressional health insurance options available under the Affordable Care Act. Specifically, the plaintiffs argue that OPM lacked the authority to grant employer subsidies for congressional health insurance purchased on the exchanges under Section 1312 (d)(3)(D) of the ACA. They also maintain that OPM improperly shifted to Members of Congress the burden of determining which legislative employees qualify as employees of “the official office of a Member of Congress” within the meaning of Section 1312 (d)(3)(D).

Andrew McCarthy has called this lawsuit “frivolous,” saying “it is no more constitutionally proper or practical for a legislator to sue the president over a public policy dispute than for the president to violate valid laws.” But while the suit may be “frivolous” in the sense that it is not a worthwhile use of the senator’s or the court’s time, it is not legally defective simply because the senator’s motivation is to win a political or public policy dispute. If, for example, Marbury was motivated by the desire to score political points against the Jefferson administration rather than by a genuine ambition to become a justice of the peace (which may have been the case, for all I know), this would not have been grounds to reject his case. At least I don’t think so.

The legal question is simply whether Johnson and/or his aide have suffered a personal injury that can be redressed in court. This is not a case, like Raines v. Byrd, 521 U.S. 811 (1997), where individual members of Congress are attempting to vindicate an institutional injury suffered by the legislative body as a whole.

The Justice Department, representing OPM, argues that the plaintiffs lack standing because they are not claiming any personal injury. For example, they “are not contending that the challenged OPM regulations have any adverse effect on their own health coverage.” DOJ Motion to Dismiss at 7 (emphasis in original). Instead, their “suit seeks to narrow the health-coverage options and benefits made available to themselves and other Members of Congress and congressional employees.” Id. (emphasis in original). How, DOJ in essence asks, can Senator Johnson have been injured by receiving a financial benefit such as an employer subsidy?

This is a fair question, but I can’t help noticing that the Justice Department failed to cite the only case (to my knowledge) to answer this question in a virtually identical context. In Boehner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994), a group of members and congressional candidates, led by the future Speaker of the House, challenged certain congressional pay increases as contrary to the Twenty-Seventh Amendment. As in the Johnson lawsuit, the defendants argued that Boehner lacked standing to sue because his complaint was really a generalized about the conduct of government. Besides, the Secretary of the Senate (one of the defendants) added sensibly, “an increase in pay is not an injury.”

Boehner, however, argued that in his case it was an injury because his constituents would think less of him for receiving a financial benefit to which he was not legally entitled. This argument, essentially identical to Johnson’s, was accepted by the D.C. Circuit, which stated: “We do not think it the office of a court to insist that getting additional monetary compensation is a good when the recipient, a congressman, says that in his political position it is a bad.”

We will see if the federal court in Wisconsin follows this line of reasoning. If it does not, Senator Johnson still may be able to prevail on standing with regard to the “official office” designation issue. Here Johnson contends that OPM has unlawfully punted the responsibility for determining who works for an “official office” within the statutory meaning. This places a burden on the individual member to make this determination, without any guidance from OPM, and results in identically situated staffers being treated differently.

DOJ’s arguments against standing on this issue strike me as less than impressive. The primary argument is that the necessity of determining which employees work for an “official office” results from the ACA itself, not from OPM. That’s true, but it is OPM that has taken a legal determination that should be made by the agency and made it into an arbitrary choice to be made by members.

DOJ also argues that Johnson does not really have to undertake the burden of making this decision because he has the option of delegating it to the Senate’s administrative office. But that’s just another way of making the decision. Johnson knows what determination the Senate administrative office will make. If that is the legally correct determination, then OPM should have made that determination in the first place. Instead, OPM is essentially giving members the option to decide whether or not they want to follow the law. Since following the law will impose a cost on a member (particularly in comparison to another member who may decide not to follow it), that does seem to place an individual burden on each member.