Notice & Comment

Did the Court Get it Right in House v. Burwell? By Nicholas Bagley

I have a new piece at the New England Journal of Medicine siding with the district court on the merits of the appropriations dispute between the House of Representatives and the Obama administration. Here’s a taste:2

The problem with the administration’s argument is that, by statute, a law “may be construed to make an appropriation out of the Treasury . . . only if the law specifically states that an appropriation is made.” This rule ensures that Congress maintains firm control over its spending power. It’s not enough that a statute says that money “shall” be paid; Congress must also specifically appropriate the money. The executive branch’s creative effort to infer an appropriation from the ACA runs afoul of that statutory command.

In addition, the Obama administration overstates the matter when it argues that the law cannot sensibly be read as appropriating money for premium subsidies but not cost-sharing reductions. In fact, Congress often commits to paying money without enacting a permanent appropriation. When it does so, it appropriates the necessary funds on an annual basis. That’s why, in 2013, the administration submitted a budget request asking Congress to include cost-sharing payments in an annual appropriations measure. In normal times, that kind of budget request wouldn’t have been controversial: Congress has a long-standing practice of honoring its obligations.

But these are not normal times. When a hostile Congress balked at the budget request, the Obama administration must have thought that it had little choice but to stretch an existing appropriation to cover the cost-sharing payments. In so stretching, however, the administration appears to have broken the law. And the administration’s well-meaning attempt to put the ACA on a sound financial footing may embolden the next president to disregard the Appropriation Clause’s limitations.

I dive into the argument in greater length in this draft essay, which will come out soon at the University of Pennsylvania Law Review.

For the record, I still don’t think the House of Representatives has standing to sue the administration. If it did, the federal courts would be called upon to resolve every appropriations dispute between one house of Congress and the sitting president. Such lawsuits would become commonplace: indeed, the House is so emboldened by its victory that it’s already toying with the idea of bringing other, similar ACA-related lawsuits.

Yet appropriations disputes have never in our history been resolved in the courts. There’s no good reason to start now, whether or not the Obama administration has broken the law.



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