In a fascinating recent opinion, the D.C. District Court ruled that a lawsuit filed by the U.S. House of Representatives against the Secretaries of Health and Human Services and the Treasury can proceed. Judge Rosemary Collyer was not persuaded by the arguments of the Obama Administration that the House does not have standing to sue the Executive branch. The decision is not a decision on the merits, but it presents a very unique constitutional theory. The claim by the House is that the Administration is funding programs under the auspices of the Affordable Care Act without an appropriation of funds by Congress.
Lyle Denniston, of SCOTUSblog, perhaps captured the Administration’s arguments and the court’s decision best:
The government had urged the judge to dismiss the entire lawsuit, claiming that the House cannot meet one of the basic requirements for a right to sue in federal court — that is, that it would suffer a legal injury from what the government has done. The House suffers no harm, the government argued, when the government chooses how to implement a law that Congress has enacted.
The judge, however, said the entire House of Representatives faces the potential loss of its specific authority to appropriate funds for government programs, if the government, in fact, has spent money without Congress’s prior approval. “Neither the president nor his officers,” the judge wrote, “can authorize appropriations; the assent of the House of Representatives is required before any public monies are spent. Congress’s power of the purse is the ultimate check on the otherwise unbounded power of the Executive.”
She added: “Disregard of that reservation [of power to the House] works a grievous harm on the House, which is deprived of its rightful and necessary place under our Constitution. The House has standing to redress that injury in federal court.”
Judge Collyer calls this the Non-Appropriation Theory, and because no case like this has ever been considered by a court before, the Judge will likely be given some professional deference for her originality.
the docket 