Is ‘House v. Burwell’ Health Law Case About Statute or Constitution?

BN-LS468_Obamac_G_20151215134804Last Thursday, the Obama administration suffered a legal setback, when a federal judge in Washington ruled that the administration exceeded its authority by paying out cost-sharing subsidies to health insurers under the Affordable Care Act.

The administration will doubtless appeal the case, which was brought by the Republican-led House of Representatives, but whether those appeals succeed may well depend on whether courts view the case as one of statutory interpretation, or one with constitutional implications.

In its briefs in the case, the administration tried to portray House v. Burwell as a successor case to King v. Burwell, another lawsuit surrounding Obamacare subsidy payments, which the Supreme Court decided in June 2015.

In upholding Obamacare subsidies in King v. Burwell, the Supreme Court ruled last year that courts should not interpret conflicting sections of a statute in such a way that would lead to absurd consequences.

In the current case, government attorneys write that the Affordable Care Act statute, which includes an explicit appropriation for subsidized premium payments to insurers, provides enough authority for the administration likewise to disburse a separate program of subsidies to cover discounts for low-income consumers.

The administration attorneys say ending those subsidies would be a similar absurd outcome.

In her decision against the administration, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia disagreed on both counts. Calling House v. Burwell “fundamentally different” from King v. Burwell, she framed the issue as “a failure to appropriate, not a failure in drafting.” Whereas King centered on mutually contradictory language under which “the statute could not function if interpreted literally,” in House the case revolves around the absence of language—namely, lack of a specific appropriation for the cost-sharing subsidies, as required by Article I of the Constitution. And while consequences might result if the House does not provide an explicit appropriation for the cost-sharing subsidies, “that is Congress’ prerogative; the Court cannot override it” by finding an appropriation where it is clear that none exists.

Judge Collyer’s decision last week echoes her procedural ruling last September. In ruling that the House had standing to bring its suit, she dismissed other portions of the House’s original case, relating to the administration’s unilateral delay of Obamacare’s employer mandate. She distinguished any disputes arising from the implementation or interpretation of a statute as quite different from the administration spending funds not appropriated—a constitutional injury worthy of court intervention, to protect the House’s “power of the purse” and separation of powers among the branches.

Such a distinction could prove crucial at the appellate stage. If viewed as a case of two parties differing on the interpretation of a statute, the House could lose its case on standing grounds—and the Supreme Court, having already heard multiple challenges to Obamacare, may decline to consider the case entirely. Conversely, if viewed as the executive exceeding its constitutional prerogatives, the Court of Appeals and Supreme Court may look more kindly on the House’s argument. Both for the political branches and for Obamacare, much hangs in the balance.

Mr. Jacobs is Founder and CEO of Juniper Research Group, a policy consulting firm based in Washington.

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