Category: Oversight of the Executive

Posted on

Things to do in Dirksen when You’re Dead

If nothing concentrates the mind like the prospect of being hanged, there should be quite a few members of Congress, particularly but not exclusively Democrats, who are having a moment of clarity about the lamentable state of the legislative branch in our constitutional system. These are not new concerns. As I pointed out two years ago, following an otherwise partisan and contentious hearing before the House Rules Committee, “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.”

There are, of course, institutional and structural reasons why it is hard for Congress to push back against executive overreach. Congressional Democrats may have agreed in theory about the dangers of an “uber presidency” (as Professor Jonathan Turley puts it), but for the last 8 years they have had little or no interest in doing anything about it. Congressional Republicans, on the other hand, have advanced various proposals for restoring legislative authority, but they have lacked either the ability or the will to put them into effect.

Contrary to popular belief, this is not the result simply of moral failings on the part of our elected representatives. Since at least the end of the Second World War, Congress has been at a substantial disadvantage in advancing its institutional prerogatives vis a vis the executive. Modern presidents “sit atop a vast executive branch and are able to take a wide variety of actions unilaterally.” Bradley & Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 440 (2012). Congress, on the other hand, as a plural body has a serious collective action problem in attempting to respond: “each individual member has relatively little incentive to expend resources trying to increase or defend congressional power, since he or she will not be able to capture most of the gains.” Id. Moreover, the “modern party system further reduces the incentives of individual members of Congress to act systematically in constraining executive power or resisting executive aggrandizement.” Id. at 443. Because “individual members of Congress tend overwhelmingly to act in accord with the preferences of their party,” the president’s co-partisans rarely will cooperate in any effort to constrain his power. Id.

These problems are exacerbated by an imbalance of resources between the two branches. One example, near and dear to the heart of this blog, relates to executive branch’s advantage in the sheer number of lawyers dedicated to advancing its institutional interests. This is perhaps both a cause and a symptom of the legislature’s disadvantage: “The fact that Congress lacks an institutional counterpart to the Office of Legal Counsel (which, among other things, monitors congressional inroads on executive authority) is an illustration of the executive’s greater institutional focus.” Bradley & Morrison, 126 Harv. L. Rev. at 443.

A noted OLC veteran once summarized Congress’s problem thusly:

In any controversy between the political branches over a separation-of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch. All Presidents have a high interest in expanding the powers of their office, since the more power the President can wield, the more effectively he can implement his political agenda; whereas individual Senators may have little interest in opposing Presidential encroachment on legislative prerogatives, especially when the encroacher is a President who is the leader of their own party.

NLRB v. Noel Canning, 134 S.Ct. 2550, 2606 (2014) (Scalia, J., concurring) (citing Bradley & Morrison).

These observations suggest that expectations for renewed assertions of congressional authority should be low. Congressional Democrats may find a new urgency in aggressive assertion of such authority, but congressional Republicans are just as likely to go in the opposite direction, seeing it to be in their political interest to cooperate with the incoming administration. They may continue in theory to support many of the ideas that have been put forward (establishing and enforcing limits on agency authority, strengthening its exercise of the power of the purse, conducting more robust oversight of the executive branch, and enforcing congressional subpoenas and demands for information), but in practice these goals will be secondary to the political expediency of supporting the new president.

Yet, as Bradley and Morrison note, the weakness and passivity of Congress is historically contingent.  126 Harv. L. Rev. at 446. The “obstacles to effective congressional checks on executive power—including members’ tendency to think more in terms of party than branch, and the President’s greater ability to appeal to the national electorate—are not fixed features of our constitutional order.” Id. at 447. Perhaps the unique qualities of the president-elect, including but not limited to his historically unprecedented disapproval ratings, will change congressional behavior.

Some observers suggest reasons for optimism. George Will writes: “For constitutional conservatives, the challenge is exactly what it would have been had Clinton won: to strengthen the rule of law by restoring institutional equilibrium. This requires a Republican Congress to claw back from a Republican executive the legislative powers that Congress has ceded to the administrative state, and to overreaching executives like Obama, whose executive unilateralism the president-elect admires.” Ben Domenech says of the president-elect, “his attitude and character are so abrasive to the sentiments of the American elites that it almost has to result in a reassertion of the powers of the other branches of government, particularly the Congress.”

We will see. If Congress is going to act, it must do so quickly. After all, the president-elect (probably) doesn’t even know what the OLC is yet.

In the meantime, they will soon be erecting the scaffolding on Capitol Hill. For the inauguration, of course.

 

Posted on

An Urgent Need to Combat Executive Privilege after COGR v. Lynch

In the Federalist Society Review, Chris Armstrong, the Deputy Chief Oversight Counsel for Chairman Hatch at the Senate Finance Committee, has written an article entitled “A Costly Victory for Congress: Executive Privilege after Committee on Oversight and Government Reform v. Lynch.” (Actually, he wrote this in June, but I am a little behind on everything, as you may have noticed).

Although the House committee mostly “won” this case at the district court level because Judge Amy Berman Jackson ordered DOJ to turn over many of the Fast and Furious related documents the committee was seeking, Armstrong points out the the court’s reasoning actually “lay[s] out a vision of an expansive deliberative process privilege that—if it stands—may diminish Congress’s powers to investigate the Executive Branch.” Specifically, by allowing the assertion of a constitutional privilege against Congress for any records that would reveal aspects of the executive branch’s deliberations with respect to policies or decisions it makes, the court opened the door to a privilege that “can be invoked against producing nearly any record the President chooses.”

Armstrong is right to be concerned about the implications of the district court’s ruling. As I pointed out earlier this year, Congress can expect that agencies will seize upon Judge Jackson’s opinion to resist congressional oversight. Armstrong suggests this is already happening, noting a recent “marked increase” in deliberative process claims “across agencies and to a wide range of congressional committees conducting active investigations.” He further expresses the concern that “we may be entering an era in which fewer disputes are resolved through good faith negotiation and the federal judiciary becomes the primary venue for settling these disputes,” a result that “may not bode well for Congress.”

This would indeed be an unfortunate development. However, as I wrote in my post on this topic, Congress can avoid this result by taking action to limit the types of subpoena enforcement cases that come before the judiciary. Essentially, such cases should be limited to situations where the president has not invoked executive privilege, thereby leaving the courts without any constitutional dispute to resolve (there still could be non-constitutional issues such as the committee’s jurisdiction and the relevance of the information sought).

So how should congressional committees go about enforcing their subpoenas when the president invokes executive privilege? A number of ideas have been floated, including using the appropriations process to restrict funding for agencies that refuse to comply with congressional subpoenas. The Select Committee on Benghazi, for example, recommends that “House and Senate rules should be amended to provide for mandatory reductions in appropriations to the salaries of federal officials held in contempt of Congress.” (see section IV, p. 66 of the Select Committee report). Other ideas include reinvigorating inherent contempt (in which the legislative body itself punishes the recalcitrant official), amending the criminal contempt statute to provide for appointment of a special counsel to prosecute contempt by executive officials (another recommendation of the Select Committee), and impeachment.

Whatever mechanism(s) Congress (and/or the House and Senate individually) settle on, the time to act is now. With the two leading presidential contenders not exactly known for their commitment to transparency, there can be no doubt that the next administration will see a continuation, if not an escalation, of these problems.

Neither is there any reason to wait on the outcome of the appellate process in COGR v. Lynch. The briefing schedule is rather leisurely: appellant’s brief is due October 6, appellee’s brief is due December 20, and any reply brief is not due until January 17, 2017. By the time briefing is complete, it seems likely that the case may be overtaken by events, and I would guess that the D.C. Circuit will never reach the merits of the case. In any event, Congress cannot afford to leave its institutional prerogatives in the hands of the courts.

 

Posted on

The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?

The Court’s Decision

Judge Amy Berman Jackson recently issued her decision in the subpoena enforcement action brought by the House Committee on Oversight and Government Reform (COGR) against the Attorney General. The case arose out of an October 11, 2011 subpoena from COGR to then-Attorney General Holder seeking documents in the “Fast and Furious” investigation. Holder refused to produce certain responsive documents on the ground that they were protected by the deliberative process privilege.

On June 19, 2012, the day before COGR was to vote on a resolution holding him in contempt, Holder asked President Obama to assert executive privilege with regard to the disputed documents. The next day Deputy Attorney General Cole informed COGR that Obama had done so. COGR and the House then proceeded to find Holder in contempt, and COGR was authorized to bring a civil enforcement action in federal court.

Continue reading “The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?”

Posted on

Immigration: Another Question of Administrative Law Versus Constitutional Faithfulness

Professor Christopher Schroeder asks the following question at Balkinization:

Under our constitutional separation of powers, does the President have the authority to defer the deportation of the undocumented parents of children who are lawfully present in the United States, to permit these persons to apply for work authorization and also to expand the Deferred Action for Childhood Arrivals first announced in 2012? Or is the President violating the Constitution by refusing to execute the immigration laws?

Schroeder contends that “[w]hatever answer you give to the first question, the answer to the second one is a resounding NO.” He reasons that the Office of Legal Counsel prepared a “careful and thorough analysis” of the legal options available to the administration. While some may disagree with OLC’s conclusions, “this only establishes that people can have honest disagreements over how to interpret a statute.” As long as OLC has plausibly concluded that the actions were within the president’s authority, Schroeder contends that there can be no violation of the president’s duty to “take care” that the laws be “faithfully executed.”

Schroeder is right to distinguish between the administrative law question of whether the administration’s new nonenforcement policy will survive judicial review and the constitutional question of whether the law is being faithfully executed. As Schroeder points out, the former is a “garden variety administrative law question” of the sort courts address every day. If the courts should rule against the administration, “then the action will be consigned to the pile of agency actions that have been overturned by courts over the years as exceeding their authorities under the relevant statutes.” But, he goes on, “[t]o my knowledge, in none of these prior decisions has a court ever even contemplated the question of a constitutional violation by the President.”

I made a similar point several months ago with regard to the House’s decision to sue the Obama administration over the Affordable Care Act:

[T]he question the House wants answered is not the question the courts will answer, even if a justiciable case were to be brought by a plaintiff with standing. They will not issue a decision on whether the Secretary, much less the President, has “faithfully executed the laws.” They will decide (at most) whether a particular administrative regulatory action complies with the law. Indeed, they may not even decide that, but merely conclude that the action is of the kind where the court should defer to the agency’s judgment as to whether or not it complies with the law.

Schroeder is also probably correct that the courts are unlikely to strike down the new nonenforcement policy. I say this based not so much on the legal merits of that policy, which I have not studied, but on the generally deferential nature of judicial review with regard to agency action in general and administrative nonenforcement in particular. See CRS Report to Congress, “The Take Care Clause and Executive Discretion in the Enforcement of Law” 8 (Sept. 4, 2014) (“Where Congress has legislated broadly, ambiguously, or in a nonobligatory manner, courts are unlikely to command or halt action by either the President or his officials.”); id. at 15-17 & n. 104 (“It should be noted that the dismissal of a challenge to an administrative nonenforcement decision under the APA is not necessarily recognition by the court that the agency was acting within its authority.”).

Schroeder seems clearly wrong, however, in suggesting that the president’s constitutional responsibilities under the Take Care Clause are met merely because his lawyers advance a plausible or successful defense of the legality of his nonenforcement policy. The Take Care Clause requires the laws be faithfully executed. As Schroeder acknowledges, this means the laws must be executed “honestly.” Johnson’s dictionary provides another pertinent definition of “faithfully” as “with strict adherence to duty.” Continue reading “Immigration: Another Question of Administrative Law Versus Constitutional Faithfulness”

Posted on

SSCI’s Approach to Releasing its Classified Report Weakens the Senate’s Prerogatives

Section 8(a) of S. Res. 400 provides that SSCI “may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure.” Chairman Feinstein clearly wants to publicly release SSCI’s report on the CIA detention and interrogation program and she believes that disclosure would be in the public interest. Yet she has not asked SSCI to take a vote under Section 8(a). She has not acknowledged any obligation on SSCI’s part to make a determination under Section 8(a) and she has not explained SSCI’s failure to use its authority under Section 8(b) to release classified information. Indeed, she has acted as if Section 8 does not exist, and no one in the media has bothered to ask her why.

The effect of this approach is to make public release of the SSCI report turn entirely on whether the report is declassified, and therefore cedes decision-making power to the President and the executive branch. Thus, when Feinstein announced in April that SSCI had voted to “declassify” its report on the CIA detention and interrogation program, I pointed out that the committee doesn’t have the authority to “declassify” anything. In reality, all the committee could do was ask the executive branch to conduct a declassification review and hope for favorable results.

Shortly after my post, Professor Lederman was able to get this helpful clarification from SSCI staff: Continue reading “SSCI’s Approach to Releasing its Classified Report Weakens the Senate’s Prerogatives”

Posted on

A Closer Look at the Senate’s Procedures for Releasing Classified Information under S. Res. 400

As discussed in my last post, there is (or should be) no serious controversy regarding the Senate’s authority to release classified information unilaterally pursuant to Section 8 of S. Res. 400. Yet the full Senate has apparently never taken a vote to release information under Section 8, perhaps in part because of that section’s elaborate procedural requirements.

At the outset, SSCI must make a determination, by a formal vote, “that the public interest would be served by such disclosure.” Senator Ribbicoff observed that this provision, embodied in Section 8(a), “establishes the basic rule that the committee may disclose information where disclosure is in the public interest.” CRS Legislative History of S. Res. 400 at 88.

Under Section 8(b), however, SSCI must take additional steps where the disclosure involves “any information which has been classified under established security procedures, which has been submitted to it by the Executive branch, and which the Executive branch requests be kept secret.” Such information may only be released pursuant to the process further described in Section 8(b).

The first step in this process is for SSCI to notify and consult with the Senate Majority and Minority Leaders regarding the vote to disclose classified information. The rule specifies that this consultation must take place prior to providing formal notice to the President. The purpose of this step, which was not added to Section 8 until 2004 (by S. Res. 445), is presumably to afford the Senate leadership with an opportunity to resolve the situation before formal notice to the President is given.

Once the President is notified, a five-day clock starts ticking. After five days have expired, SSCI may publicly disclose the information that was the subject of the vote, unless the President properly objects within this period. To do so, he must, “personally” and “in writing,” notify SSCI of his objection to disclosure, provide his reasons therefor, and certify “that the threat to the national interest of the United States posed by such disclosure is of such gravity that it outweighs any public interest in the disclosure.”

Continue reading “A Closer Look at the Senate’s Procedures for Releasing Classified Information under S. Res. 400”

Posted on

Does the Obama Administration Challenge the Senate’s Authority to Release Classified Information under S. Res. 400?

On Friday, August 1, the executive branch returned to SSCI the redacted executive summary of the committee’s study on the CIA detention and interrogation program. Chairman Feinstein announced that there had been “significant redactions” made and that the public release of the report would be held until the committee had time to “understand the basis for these redactions and determine their justification.” Thus, she has chosen not to release the redacted version of the report although SSCI is now legally free to do so (without prejudice to its right to seek release of an unredacted or less redacted version at a later time).

Assuming that Feinstein and her colleagues decide to challenge some or all of the redactions, they have a clear mechanism for doing so in Section 8 of S. Res. 400. As we have discussed before, this provision allows SSCI to vote for public disclosure of classified material the executive branch wishes be kept secret. Unless the President objects within five days, the committee may release the information. If the President does object, the matter may be elevated to the Senate for final decision.

A blog post by Professor Marty Lederman, however, raises the surprising possibility that the Obama administration may not recognize or accept the legitimacy of this mechanism. Lederman cites two FOIA filings by the Obama Justice Department that say SSCI can only publicly release material after declassification review by the executive branch. If these statements were taken literally, they conflict (or arguably conflict) with the Senate’s authority under Section 8.

I think it unlikely, however, that these statements portend any administration challenge to the Senate’s Section 8 authority. First, as far as I know, no prior administration has questioned the Senate’s authority to release classified information under Section 8 (nor the House’s similar authority under Rule X(11)(g)). The provision in question was the subject of some controversy when S. Res. 400 was proposed and adopted in 1976, but it does not appear that the executive branch seriously questioned its constitutionality or legitimacy. This CRS legislative history of S. Res. 400, for example, reflects only that then-DCI George H.W. Bush expressed some reservations about the disclosure provision, feeling that it “might conflict with the statute requiring the DCI to ‘protect intelligence sources and methods.’” (p. 18).

During the floor debate over S. Res. 400, the only constitutional objection to Section 8 was raised by Senator Abourezk, who felt it was too deferential to the executive branch classification system. He argued that the new intelligence oversight committee “will be saddled with formal procedures for declassifying information buttressed by sanctions in contrast to the President who is free to declassify in an ad hoc manner as it suits his political needs.” (CRS-96). No senator, in contrast, questioned the Senate’s constitutional authority to release classified information without executive branch permission.

If the executive branch objected to Section 8, it could have insisted on modification or repeal of this provision (and the analogous House rule, which was adopted in 1977) as a condition of providing SSCI and HPSCI with sensitive intelligence information. Instead, in 1978 President Carter issued Executive Order 12036, which “officially recognized the existence of the two oversight committees and directed that they be kept ‘fully and currently informed’ by the departments and agencies that made up the Intelligence Community.” Britt Snyder, The Agency and the Hill 59. This principle was later enacted into law by the Intelligence Oversight Act of 1980. The executive branch evidently considered the procedures established under Section 8 as an adequate protection for classified information shared with the intelligence committees and undoubtedly preferred them to prior practice in which individual committees could decide to release classified information unilaterally. See id. 200-01 (describing how the Pike Committee in the House unilaterally released classified information that the Ford Administration believed seriously compromised US SIGINT capabilities). Subsequent administrations have continued or strengthened information-sharing practices and laws without challenging (as far as I know) the right of the intelligence committees to use Section 8 or its House counterpart to release classified information.

Furthermore, the two FOIA filings Lederman cites strike me as unlikely vehicles for an Obama administration challenge to Section 8. Both appear in a FOIA case against the CIA in which the ACLU seeks access to the Senate report. The first filing is an affidavit from the director of CIA congressional affairs, who states that “SSCI would be required to submit its Report for a declassification review before it could public release the Report.” The second is a reply brief in which the Justice Department refers to a declassification review of the report as “a necessary precursor to public release.”

Neither of these filings mentions Section 8 of S. Res. 400 or alludes to the possibility of the Senate, as opposed to SSCI, releasing the report. It therefore would seem quite a stretch to suggest that these documents implicitly announce the administration’s rejection of Section 8 as a legitimate mechanism for public disclosure. For all we know, the authors of these documents were not even aware of Section 8. Or perhaps they thought SSCI had committed, formally or informally, to submitting its report for declassification review. Or perhaps they just decided to ignore Section 8 for some other reason.

If the administration really wanted to question the constitutionality of Section 8, one would expect a pronouncement on the issue from the Office of Legal Counsel (not known for being shy about asserting executive prerogatives). I am not aware of any such pronouncement, and Lederman (who served in the OLC as a political appointee in the Obama administration and as an attorney advisor in prior administrations) cites none.

So, in short, I seriously doubt that the administration would challenge the right of SSCI and the Senate to use Section 8. Lederman, with whom I consulted before posting this, assures me that he isn’t predicting this either. Moreover, as indicated in his original post, Lederman doesn’t think there would be much to such a challenge if it were made. Neither do I.

Which begs the question of why SSCI is so skittish about invoking Section 8. A subject I will turn to in a future post.

Posted on

Is a Lawsuit Really the House’s Only Remaining Option?

In response to the argument that the House needed access to the courts in order to protect the separation of powers and its constitutional prerogatives, Representative Slaughter noted “the Founding Fathers gave to the legislative branch the weapons to defend itself without running to the court.” She then proceeded to list these tools of self-defense, including the power to write new laws, repeal old laws, disapprove regulations and attach riders to appropriations bills. She also noted the specific powers invested in the Senate, such as its ability to “put nominees’ feet to the fire” during the advice and consent process. Finally, she cited the House’s constitutional authorities with respect to the executive: “we investigate, hold oversight hearings and we sometimes impeach.”

There is no question that these are powerful tools, potentially powerful anyway, and I think I have already made clear my view that a lawsuit is a very poor option for the House to employ. Nonetheless, it is difficult to see how the House could effectively use some of these methods to address the employer mandate delay. Obviously, it cannot use the Senate’s authorities. It is also hard to see how it could rewrite the law (even assuming the Senate and the President’s cooperation) to remedy the problem. After all, the House does not object to the policy embodied in the employer mandate delay; it objects to the fact that the administration adopted the policy without congressional authorization. Indeed, one of the House’s “injuries” is that the administration opposed any congressional effort to change the law so as to authorize the action it was taking.

Most of the discussion of alternative remedies at the Rules Committee hearing revolved around the power of the purse. But no one explained exactly how the House might use the power of the purse in this situation. In the first place, the spending power is just political leverage; it works the same for policy disputes and legal disagreements. But the political leverage only works to the extent it relates to something the public really cares about; abstract institutional disputes between the branches will hardly qualify. Indeed, even when the public supports Congress’s goal, using the spending power as leverage is tricky. Congress wasn’t too successful in using the power of the purse to control the executive’s conduct of an unpopular war in the last administration, as Slaughter may recall.

Now I do like the Scalia/Ginsberg suggestion that funds for White House staff be cut off, and I wonder why the House doesn’t at least try something like that. Presumably the public wouldn’t be outraged by a reduction of the White House travel budget or the like. Maybe Congress is worried that the White House would demand a reduction in leg branch appropriations in return. In any event, using the appropriations process in this way would require majority support in both chambers, if not a supermajority sufficient to overcome a veto. And even if that existed (which it obviously does not), I am not sure how exactly it would be linked to the employer mandate delay.

So as a practical matter, I think the House is left with the unilateral authorities of investigation, oversight and impeachment. Investigation and oversight seem like appropriate responses because, as discussed in a prior post, further information about the decision-making process is needed to determine whether the House’s disagreement with the IRS is simply a garden-variety dispute over administrative law or whether it reflects a true invasion of the House’s constitutional authority

However, an ordinary committee investigation will not suffice here for at least two reasons. First, the Speaker has already made a decision to elevate this matter beyond a routine oversight issue, and he wants the House as a body to weigh in. If it were sent to a committee for investigation, it would just become one of many ongoing investigations and would quickly become bogged down in the partisan muck. Second, it is very likely that the administration would refuse to produce all (or perhaps any) information regarding the decision-making process on grounds of deliberative process, attorney-client and/or presidential communications privilege.

There is another way, though. The House has a well-established and time-honored method of obtaining important information from the executive branch. The resolution of inquiry is a privileged resolution that seeks information from the president or a department head. Although it is not uncommon for such resolutions to be introduced (CRS counts 290 from 1947 to 2011), most often in recent years by members of the minority party, the House has not adopted such a resolution since 1995.

A resolution of inquiry is not a “legal” device like a subpoena, but an assertion of the House’s role in the constitutional structure, which would seem to be what is called for under the circumstances. As CRS notes, “compliance by the executive branch with the House’s request for factual information in such a resolution is voluntary, resting largely on a sense of comity between co-equal branches of government and a recognition of the necessity for Congress to be well-informed as it legislates.”

A resolution of inquiry could be addressed to Secretary Lew, directing him to produce all documents related to the decision to delay the employer mandate. (A similar resolution could be directed to President Obama, although it is traditional that resolutions to the president “request” rather than “direct” the production of information).

Would such a resolution work? Possibly, but only if the House were united in the resolution. The question then is whether Representative Slaughter and her colleagues would support such a resolution. If they are sincere about wanting to protect the House’s institutional prerogatives, I don’t see why they would not. And if they refuse, at least the Speaker would have tried to use more traditional methods before proceeding with his lawsuit.

Of course, there is no legal penalty for refusing to comply with a resolution of inquiry. But if Secretary Lew were to refuse to comply with the resolution, the House would logically proceed to use its last constitutional tool, one where it exercises judicial and not merely legislative authority, namely an investigation into whether the Secretary should be impeached.

 

Posted on

Halbig/King and the House’s Lawsuit against the President

As you have no doubt heard, two circuit courts issued divergent opinions yesterday on the same administrative law question, namely the validity of an IRS rule extending tax subsidies to health insurance purchased on the federal exchange. These decisions nicely illustrate the point I was making in my last post regarding the nature of administrative law decisions and the extent to which a decision on the merits of the employer mandate delay would or would not vindicate the House’s constitutional interests.

In Halbig v. Burwell, the D.C. Circuit held the IRS rule invalid because it conflicts with the unambiguous language of the Affordable Care Act, particularly section 36B, which authorizes tax subsidies only for insurance purchased on “an Exchange established by the State.” The government argued that the statute taken as a whole reveals Congress’s intent that subsidies be available on both the federal and state exchanges. Any other conclusion, it contended, would generate an absurd result and be inconsistent with the ACA’s purpose and legislative history. Judge Griffith, writing for himself and Judge Randolph, found that the government’s arguments were insufficient to overcome the clear statutory text.

On the other hand, in King v. Burwell, the Fourth Circuit held that the language of the ACA, taken as a whole, was ambiguous on the question of whether tax subsidies applied to the federal exchange. The court acknowledged that the plaintiffs’ position made a “certain sense” and “accords more closely” with “a literal reading of the statute,” but after reviewing all relevant statutory provisions as well as the ACA’s structure, purpose and legislative history, it concluded that “we are unable to say definitively that Congress limited the premium tax credits to individuals living in states with state-run exchanges.” Instead, the court applied Chevron deference to the statutory interpretation adopted by the IRS in its regulation, thus upholding the agency’s decision to extend tax subsidies to insurance purchased on the federal exchange.

The two courts therefore reached different conclusions, but the various judges who have weighed in on the controversy (so far) reflect more than two views. The D.C. Circuit majority thought the ACA unambiguously prohibited the IRS from extending tax subsidies to insurance bought on the federal exchange. The Fourth Circuit majority, along with Judge Edwards dissenting in Halbig, thought that the ACA did not resolve the issue one way or the other and that the IRS was therefore free to determine whether or not tax subsidies should apply on the federal exchange. However, Judge Davis, concurring in King, found that Congress did resolve the question in the ACA and that the IRS was therefore required to adopt the interpretation that it did. And none of the judges appeared to agree with Judge Friedman, the lower court judge in Halbig, who found that the ACA unambiguously supported the IRS’s position.

In his Rules Committee testimony, Professor Turley cited the tax subsidy issue in Halbig as an example of Congress addressing an issue with a “lack of ambiguity” and the administration deciding to change Congress’s policy decision through a regulation. Turley expressed the hope that by bringing such cases to the courts, the House could obtain some sort of clear demarcation of congressional versus executive authority. Certainly the results in Halbig/King so far suggest this is a forlorn hope.

Even if a majority of the Supreme Court ultimately invalidates the IRS regulation, I don’t see that such a decision would expand or protect congressional power in some fundamental way. No one disputes that Congress could have resolved the issue through the ACA; the question is simply whether it did so. Indeed, it is arguable that the Halbig/King cases will expand executive authority by applying Chevron deference to an IRS determination that may not deserve it.

Just as importantly, even Judge Griffith’s opinion does not address, at least in any kind of direct way, the House’s constitutional concern that President Obama is failing to take care that the laws be faithfully executed. The D.C. Circuit concludes that the plaintiffs have the “better of the argument” as the tax subsidy issue, but it does not suggest that IRS (much less the President) promulgated the regulation in bad faith.

In sum, if the House were to sue regarding the employer mandate delay, the best it could hope for would be a court decision holding that delay to be invalid. But as I mentioned before, courts invalidate agency regulations all the time. How would one more such ruling change the balance of power between the branches?