Saturday, December 13, 2014

Another attack on the ACA - House of Representatives v. Burwell

Another Baseless Attack on Health Law -
The Times has an editorial today denouncing the House of Representatives suit against the Obama administration for measures it has taken to enforce the Affordable Care Act which the GOP majority has voted 51 times to repeal.  As we know from the four Justices who would have voided the entire law the courts - once you get to the top - may be an ally of those who would like to destroy the most important social welfare measure since Medicare.  The Times piece is good - but I thought I would add my own say,  It appears below.  - gwc

A judicial hammer and anvil?
by George W. Conk

We have one national government - the United States of America but its powers are divided. All legislative power is in the Congress whose powers are divided.  The Executive is charge with the duty to take care that the laws are faithfully executed.  And the President shares in the legislative function via the veto power.  The judicial power rests in the Supreme Court and such inferior courts as the Congress via legislation may create.  The judicial power is limited to a specified set of issues, the most important of which are interstate disputes, “cases in law and equity”and to “to controversies to which the United States shall be a party”. Nowhere does Article III extend the judicial power to disputes among the branches of government.  Accordingly such disputes have not been presented to the courts.

But now the House of Representatives as one half of the legislative branch has departed from that tradition.  It has filed an action styled United States House of Representatives v. Secretaries Burwell, Lew and the administrative agencies they lead - the Departments of Health and Human Services and The Treasury.  Continuing the House majority’s assault on the Patient Protection and Affordable Care Act (ACA), the suit seeks a declaration of unconstitutionality and injunction against two key measures: first, the Executive’s grant of tax credits and refunds to insurers mandated by the ACA.  The measure is designed to compensate for “cost sharing reductions” mandated as a condition of being permitted to offer insurance policies through the ACA health insurance marketplace exchange.  Congress has refused to make a specific appropriation.  The House argues that the IRS regulation which pays these obligations from permanent amounts to a “legislative change to the ACA”.  Second the House attacks the executive action permitting employers who must provide health insurance to all full time employees to  escape ACA sanction if they achieve 95% coverage.

These Executive actions, the complaint asserts, “usurp Article 1 legislative authority”  and are unconstitutional. The House seeks an injunction against the executive.  In each count the complaint recites that “the House has been injured, and will continue to be injured, by defendants’ unconstitutional actions”.  It is a concept of injury that has never been asserted or recognized.  Though Congress has on a couple of occasions (most recently in Don’t Ask Don’t Tell) litigated to defend a statute, it has never sought to have a court define the often obscure line between legislative and executive action.  With good cause.

There are many ways to view the House’s action - e.g as one that lacks standing (has it suffered a particularized injury in fact as required in Lujan v. Defenders of Wildlife (1992)?  Or does it pose a non-justiciable political question. In the redistricting case Baker v. Carr (1962) the Supreme Court embraced one person one vote.   It began by asking is “the matter textually committed to a coordinate political department” and are there  available “judicially discoverable and manageable standards for resolving” the issue.  One could plausibly embrace the view that courts can develop doctrines to determine the difference between legislation and the interpretation necessary to “faithfully execute” the laws.

But our experience in recent years trying to maintain judicial independence in New Jersey encourages caution.  So does the auctioning of the judiciary as partisan cash flows into judicial elections around the country.  As respect for Congress has fallen we grow more concerned about preserving the autonomy which is critical to judicial legitimacy.
If the courts were to adopt a strict construction of the grants of power in Articles I and II it would require courts to examine the nature of each exercise of federal power and then to prohibit the wrong branch from exercising it.

Separation-of-powers doctrine would become a  judicial hammer and anvil for invalidating a wide range of congressional or executive action that could be found to stray over the no man’s land of ambiguity in terms such as legislate, interpret, and enforce.  This might be appealing to judges who do not like the administrative state or who believe that Congress meddles too much in executive affairs.  But it would be a revolution in the law of separation of powers in the United States.  The federal courts should decline the invitation tendered by the House of Representatives.
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