UNITED STATES HOUSE OF REPRESENTATIVES v. BURWELL et al

Filing 41

MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 9/9/2015. (lcrmc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
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UNITED STATES HOUSE OF
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REPRESENTATIVES,
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Plaintiff,
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v.
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Civil Action No. 14-1967 (RMC)
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SYLVIA MATTHEWS BURWELL in
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her official capacity as Secretary of the )
United States Department of Health and )
Human Services, et al.,
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Defendants.
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_________________________________
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MEMORANDUM OPINION
Article I of the United States Constitution established the Congress, which
comprises a House of Representatives and a Senate. U.S. Const. art. I, § 1. Only these two
bodies, acting together, can pass laws—including the laws necessary to spend public money. In
this respect, Article I is very clear: “No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law . . . .” U.S. Const. art. I, § 9, cl. 7.
Through this lawsuit, the House of Representatives complains that Sylvia
Burwell, the Secretary of Health and Human Services, Jacob Lew, the Secretary of the Treasury,
and their respective departments (collectively the Secretaries) have spent billions of
unappropriated dollars to support the Patient Protection and Affordable Care Act. The House
further alleges that Secretary Lew and Treasury have, under the guise of implementing
regulations, effectively amended the Affordable Care Act’s employer mandate by delaying its
effect and narrowing its scope.

1

The Secretaries move to dismiss, arguing that the House lacks standing to sue.
They argue that only the Executive has authority to implement the laws, and urge this Court to
stay out of a quintessentially political fight in which the House is already well armed. The
House opposes, adamant that it has been injured in several concrete ways, none of which can be
ameliorated through the usual political processes.
The only issue before the Court is whether the House can sue the Secretaries; the
merits of this lawsuit await another day. Although no precedent dictates the outcome, the case
implicates the constitutionality of another Branch’s actions and thus merits an “especially
rigorous” standing analysis. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S.
Ct. 2652, 2665 n.12 (2015). The House sues, as an institutional plaintiff, to preserve its power of
the purse and to maintain constitutional equilibrium between the Executive and the Legislature.
If its non-appropriation claims have merit, which the Secretaries deny, the House has been
injured in a concrete and particular way that is traceable to the Secretaries and remediable in
court. The Court concludes that the House has standing to pursue those constitutional claims.
In contrast, the House’s claims that Secretary Lew improperly amended the
Affordable Care Act concern only the implementation of a statute, not adherence to any specific
constitutional requirement. The House does not have standing to pursue those claims. The
Secretaries’ motion to dismiss will be denied as to the former and granted as to the latter.
I. FACTS
Some background is necessary on the appropriations process under our
Constitution, the workings of the statute at issue, and how this case came about. The facts
alleged in the House’s complaint must be taken as true in this procedural posture. Baird v.
Gotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir. 2015).

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A. Constitutional Overview
Congress passes all federal laws in this country. U.S. Const. art. I, § 1 (“All
legislative Powers herein granted shall be vested in a Congress of the United States[.]”). That
includes both laws that authorize the expenditure of public monies and laws that ultimately
appropriate those monies. Authorization and appropriation by Congress are nonnegotiable
prerequisites to government spending: “No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law . . . .” U.S. Const. art. I, § 9, cl. 7; see also United
States v. MacCollom, 426 U.S. 317, 321 (1976) (“The established rule is that the expenditure of
public funds is proper only when authorized by Congress, not that public funds may be expended
unless prohibited by Congress.”). The distinction between authorizing legislation and
appropriating legislation is relevant here and bears some discussion.
Authorizing legislation establishes or continues the operation of a federal program
or agency, either indefinitely or for a specific period. GAO Glossary at 15. 1 Such an
authorization may be part of an agency or program’s organic legislation, or it may be entirely
separate. Id. No money can be appropriated until an agency or program is authorized, although
authorization may sometimes be inferred from an appropriation itself. Id.

1

The Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344,
§ 801(a), 88 Stat. 297, 327 (1974) gives the Government Accountability Office (GAO) specific
duties in the budgetary arena. See generally 31 U.S.C. § 1112(c). One of those duties is to help
“establish, maintain, and publish standard terms and classifications for fiscal, budget, and
program information of the Government, including information on fiscal policy, receipts,
expenditures, programs, projects, activities, and functions.” Id. § 1112(c)(1). The most recent
publication in fulfilment of that duty is GAO-05-734SP, A Glossary of Terms Used in the
Federal Budget Process (2005) (GAO Glossary). “Although GAO decisions are not binding,
[courts] ‘give special weight to [GAO's] opinions’ due to its ‘accumulated experience and
expertise in the field of government appropriations.’” Nevada v. Dep’t of Energy, 400 F.3d 9, 16
(D.C. Cir. 2005) (quoting United Auto., Aerospace & Agric. Implement Workers v. Donovan,
746 F.2d 855, 861 (D.C. Cir. 1984)).
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Appropriation legislation “provides legal authority for federal agencies to incur
obligations and to make payments out of the Treasury for specified purposes.” Id. at 13.
Appropriations legislation has “the limited and specific purpose of providing funds for
authorized programs.” Andrus v. Sierra Club, 442 U.S. 347, 361 (1979) (quoting TVA v. Hill,
437 U.S. 153, 190 (1978)). An appropriation must be expressly stated; it cannot be inferred or
implied. 31 U.S.C. § 1301(d). It is well understood that the “a direction to pay without a
designation of the source of funds is not an appropriation.” U.S. Government Accounting
Office, GAO-04-261SP, Principles of Federal Appropriations Law (Vol. I) 2-17 (3d ed. 2004)
(GAO Principles). The inverse is also true: the designation of a source, without a specific
direction to pay, is not an appropriation. Id. Both are required. See Nevada, 400 F.3d at 13-14.
An appropriation act, “like any other statute, [must be] passed by both Houses of Congress and
either signed by the President or enacted over a presidential veto.” GAO Principles at 2-45
(citing Friends of the Earth v. Armstrong, 485 F.2d 1, 9 (10th Cir. 1973); Envirocare of Utah
Inc. v. United States, 44 Fed. Cl. 474, 482 (1999)).
Appropriations come in many forms. A “permanent” or “continuing”
appropriation, once enacted, makes funds available indefinitely for their specified purpose; no
further action is needed from Congress. Nevada, 400 F.3d at 13; GAO Principles at 2-14. 2 A
“current appropriation,” by contrast, allows an agency to obligate funds only in the year or years
for which they are appropriated. GAO Principles at 2-14. Current appropriations often give a
particular agency, program or function its spending cap and thus constrain what that agency,
program, or function may do in the relevant year(s). Most current appropriations are adopted on

2

Examples of permanent appropriations include the Judgment Fund (31 U.S.C. § 1304(a)) and
the payment of interest on the national debt (31 U.S.C. § 1305(2)).
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an annual basis and must be re-authorized in each fiscal year. Such appropriations are an
integral part of our constitutional checks and balances, insofar as they tie the Executive Branch
to the Legislative Branch via purse string.
B. Statutory Overview
The 111th Congress enacted the Patient Protection and Affordable Care Act, Pub.
L. No. 111-148, 124 Stat. 119 (2010) (ACA), “to increase the number of Americans covered by
health insurance and decrease the cost of health care.” Nat’l Fed’n of Indep. Bus. v. Sebelius,
132 S. Ct. 2566, 2580 (2012); see also King v. Burwell, 135 S. Ct. 2480, 2485 (2015) (“The
[ACA] adopts a series of interlocking reforms designed to expand coverage in the individual
health insurance market.”). No party disputes here whether the ACA was validly adopted by
both houses of Congress and signed into law by the President. 3
1. Subsidies under Sections 1401 and 1402 of the Affordable Care Act
The ACA provides monetary subsidies in several forms; two are relevant here.
First, in order to assist certain individuals with the cost of insurance on the newly-established
exchanges, Congress enacted a “premium tax credit” under the Internal Revenue Code for
coverage of statutory beneficiaries with household incomes from 100% to 400% of the federal
poverty level. See 26 U.S.C. § 36B; 42 U.S.C. §§ 18081, 18082; King, 135 S. Ct. at 2487.
These premium tax credits were enacted in Section 1401 of the ACA, and the Court will
therefore refer to this subsidy as the “Section 1401 Premium Tax Credit.”
Second, Section 1402 of the ACA requires insurers to reduce the cost of insurance

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The bill, H.R. 3590, 111th Cong. (2d Sess. 2009) (H.R. 3590), was amended and retitled after
consideration and debate in the Senate. It passed the Senate by a vote of 60-39 on December 24,
2009. On March 21, 2010, the House agreed to the Senate amendments by a vote of 219-212.
On March 23, 2010, President Obama signed H.R. 3590 into law.
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to certain, eligible statutory beneficiaries. See 42 U.S.C. § 18071(a)(2). Specifically, these
“cost-sharing” provisions require insurance companies that offer qualified health plans through
the ACA to reduce the out-of-pocket cost of insurance coverage for policyholders who qualify.
See generally id. § 18071. 4 The federal government then offsets the added costs to insurance
companies by reimbursing them with funds from the Treasury. See 42 U.S.C. § 18071(c)(3)
(“An issuer of a qualified health plan making reductions under this subsection shall notify the
Secretary of such reductions and the Secretary shall make periodic and timely payments to the
issuer equal to the value of the reductions.”). The Court will refer to this subsidy as the “Section
1402 Cost-Sharing Offset.”
Eligibility determinations for either subsidy can be made in advance, as can
payments. See 42 U.S.C. § 18082(a)(1) (requiring the Secretaries of Health and Human Services
(HHS) and Treasury to consult and establish a program to make advance determinations “with
respect to the income eligibility of individuals . . . for the premium tax credit allowable under
section 36B of title 26 and the cost-sharing reductions under section 18071”). The Section 1401
Premium Tax Credits are paid directly to insurance companies, who then “reduce the premium
charged the insured for any period by the amount of the advance payment.” Id. §
18082(c)(2)(B)(i). Treasury pays Section 1402 Cost-Sharing Offsets to the insurers “at such
time and in such amount as the Secretary [of HHS] specifies.” Id. § 18082(c)(3).
The House alleges that there is a marked, and constitutionally significant,

4

“Reduced cost-sharing for individuals enrolling in qualified health plans” is described in some
detail in the statute. See generally 42 U.S.C. § 18071. Basically, the ACA mandates lower copay expenses for beneficiaries. Once the Secretary of HHS notifies the insurer that an enrolled
beneficiary is eligible for reduced cost-sharing, the insurer “shall reduce the cost-sharing under
the plan” on a sliding scale dependent on the individual’s household income. 42 U.S.C. §§
18071(a)(2), 18071(c).
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difference in the way these two subsidies are funded. See Compl. ¶ 29 (citing 31 U.S.C. § 1324).
Essentially, the House contends that Section 1401 Premium Tax Credits are funded by a
permanent appropriation in the Internal Revenue Code, whereas Section 1402 Cost-Sharing
Offsets must be funded and re-funded by annual, current appropriations. Id. The House alleges
further that “Congress has not, and never has, appropriated any funds (whether through
temporary appropriations or permanent appropriations) to make any Section 1402 Offset
Program payments to Insurers.” Id. ¶ 28.
2. The Affordable Care Act’s Employer Mandate
Apart from its monetary subsidies, the ACA provides incentives for employers to
offer health insurance coverage to their employees. Under the title “Shared Responsibility for
Employers Regarding Health Coverage,” Section 1513 of the ACA adds a new chapter to the
Internal Revenue Code that subjects every non-conforming employer to an “assessable
payment,” i.e., a tax. See 26 U.S.C. § 4980H(a). Cf. id. § 4980H(d)(7) (“For denial of deduction
for the tax imposed by this section . . . .”) (emphasis added); Independent Business, 132 S. Ct. at
2580, 2601 (concluding that the “[s]hared responsibility payment” in the ACA’s individual
mandate, 26 U.S.C. § 5000A(b)(1), could “reasonably be read as a tax”). The substance of
Section 1513 is only relevant here insofar as it requires any “applicable large employer” to “offer
its full-time employees (and their dependents) the opportunity to enroll in minimum essential
coverage under an eligible employer-sponsored plan” or else to pay the tax. 26 U.S.C. §
4980H(a)-(b). Section 1513 concludes: “The amendments made by this section shall apply to
months beginning after December 31, 2013.” Id. § 4980H(d).
C. Budgetary Requests and Appropriation Acts
The House alleges that the “Administration repeatedly has acknowledged that it

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requires temporary appropriations to fund Section 1402,” namely through the budget request
process since the ACA’s enactment. Compl. ¶ 31. After the May 28, 2015 hearing on the
pending motion, the Court ordered supplemental briefing on these budget requests. See 6/1/2015
Minute Order. The parties filed a joint stipulation of facts in response, see Dkt. 30 (Stipulation). 5
The stipulated facts are clear, even if the parties dispute their relevance. See Stipulation at 1-2. 6
On April 10, 2013, the Office of Management and Budget submitted its Fiscal
Year 2014 Budget of the U.S. Government. Budget [Dkt. 30-1]. The Appendix to that budget
contained “more detailed financial information on individual programs and appropriation
accounts than any of the other budget documents.” App. to Budget [Dkt. 30-2] at 3. The
Appendix included, among other things, “explanations of the work to be performed and the funds
needed.” Id. In the April 2013 Appendix, the Administration requested the following:
For carrying out, except as otherwise provided, sections 1402
[Reduced Cost-Sharing] and 1412 of the Patient Protection and
Affordable Care Act (Public Law 111-148), such sums as
necessary. For carrying out, except as otherwise provided, such
sections in the first quarter of fiscal year 2015 (including upward
adjustments to prior year payments), $1,420,000,000.
Id. at 453.
On the same day, HHS separately submitted to the relevant appropriations
committees a Justification of Estimates for Appropriations Committees. Justification [Dkt. 30-

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The Court also ordered supplemental briefing on those facts. See Pl.’s Supplemental Mem.
[Dkt. 33] (Pl. Supp. Mem.); Defs.’ Supplemental Mem. [Dkt. 34] (Defs. Supp. Mem.); Pl.’s
Supplemental Reply [Dkt. 35] (Pl. Supp. Reply); Defs.’ Supplemental Reply [Dkt. 37] (Defs.’
Supp. Reply).
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The dispute over relevance caused the parties to submit separate compilations of documents in
support of their ‘joint’ stipulation. While the House selectively excerpted the relevant pages, the
Secretaries filed and delivered a four-volume compendium of the documents in their entirety.
Compare Dkts. 30-1 to 30-14 with Dkts. 30-15 to 30-28. Because neither party disputes the
authenticity of the other’s exhibits, the Court will freely cite to both.
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3]. In that document, HHS explained:
The FY 2014 request for Reduced Cost Sharing for Individuals
Enrolled in Qualified Health Plans is $4.0 billion in the first year
of operations for Health Insurance Marketplaces, also known as
Exchanges. CMS also requests a $1.4 billion advance
appropriation for the first quarter of FY 2015 in this budget to
permit CMS to reimburse issuers who provided reduced costsharing [under Section 1402] in excess of the monthly advanced
payments received in FY 2014 through the cost-sharing reduction
reconciliation process.
Id. at 14. In its conclusion, HHS referred to the “Cost-Sharing Reductions” as one of “five
annually-appropriated accounts.” Id. In a later graphic entitled “Reduced Cost Sharing,” HHS
listed “--” under “Budget Authority” for “FY 2013 Current Law,” id. at 193. That fact indicates
that no prior appropriation applied to Section 1402. HHS compared the Section 1402 program to
“other appropriated entitlements such as Medicaid.” Id.
On May 17, 2013, the Administration submitted a number of amendments to its
budget request. Amendments [Dkt. 30-4]. The House contends that these amendments are
relevant because as they “did not withdraw or otherwise alter in any respect the Administration’s
FY 2014 request for an annual appropriation for the Section 1402 Offset Program,” Pl. Supp.
Mem. at 7 n.6. 7
On May 20, 2013, OMB issued its Sequestration Preview Report for Fiscal Year
2014, which listed “Reduced Cost Sharing” as subject to sequestration in the amount of $286

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At the hearing on the instant motion, the Secretaries erroneously stated that the FY2014 request
for Section 1402 funding had been withdrawn. See 5/28/15 Tr. at 23 (Counsel for the
Secretaries) (“There was initially a request and that request was later withdrawn because the
administration took a second look and realized that there were principles of appropriations law
that made the request unnecessary.”). Counsel for the House questioned whether that was
correct. Id. at 38. The Secretaries have since notified the court that “[t]he reference of a
withdrawal [was] to OMB’s submission of the Fiscal Year 2015 Budget, which did not request a
similar line item. Defendants’ counsel did not intend to suggest that there was a formal
withdrawal document, and apologizes for being unclear on that point.” Stipulation at 3 n.1.
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million, or 7.2% of the requested appropriation. Report [Dkt. 30-18] at 4. The House believes
that because “payments properly made under [Section 1401 of the ACA] are exempt from
sequestration,” OMB’s inclusion of Section 1402 Cost-Sharing Offsets on a list of sequestrationrequired programs was “an acknowledgement that the permanent appropriation codified at 31
U.S.C. § 1324 cannot be the funding source for such payments.” Stipulation at 7 n.2.
On July 13, 2013, the Senate Appropriations Committee adopted S. 1284, a bill
appropriating monies to HHS and other agencies. An accompanying report stated that “[t]he
Committee recommendation does not include a mandatory appropriation, requested by the
administration, for reduced cost sharing assistance . . . as provided for in sections 1402 and 1412
of the ACA.” S. Rep. No. 113-71, 113th Cong., at 123 (2013). No subsequent consideration of
funding for Section 1402 appears in the record.
On October 17, 2013, the President signed into law the first of two continuing
resolutions to keep the government running pending a consolidated appropriations act. See
Continuing Appropriations Act for 2014, Pub. L. 113-46, 127 Stat. 558 (2013); Joint Resolution,
Pub. L. 113-73, 128 Stat. 3 (2014). Neither resolution included an appropriation for the Section
1402 Cost-Sharing Offset program.
Finally on January 17, 2014, the President signed the Consolidated
Appropriations Act for 2014, Pub. L. 113-76, 128 Stat. 5 (2014). That law similarly did not
appropriate monies for the Section 1402 Cost-Sharing Offset program. 8 Indeed, the Secretaries
have conceded that “[t]here was no 2014 statute appropriating new money” for the Section 1402

8

The Secretaries do assert that the Act “imposed dozens of explicit restrictions on particular uses
of appropriated funds,” but “did not restrict the use of any federal funds for the advance payment
of cost-sharing reductions under the ACA.” Defs. Supp. Mem. at 5. The absence of a
restriction, however, is not an appropriation. See MacCollom, 426 U.S. at 321.
10

Cost-Sharing Offset program. 5/28/15 Tr. at 27.
D. Background of this Case
The House alleges that the Secretaries, despite Congress’s refusal to fund the
Section 1402 Cost-Sharing Offsets through a current appropriation, nonetheless drew and spent
public monies on that program beginning in January 2014. Compl. ¶ 35. The House also alleges
that Secretary Lew has effectively “legislate[d] changes” to Section 1513, both by delaying the
employer mandate beyond December 31, 2013 and by altering the percentage of employees that
must be offered coverage. Id. ¶¶ 45, 46. These changes to the mandate are said by the House to
have “usurp[ed] its Article I legislative authority.” Id. ¶ 50.
To right these perceived wrongs, the House took legal action. On July 30, 2014,
it adopted House Resolution 676, which authorized the Speaker of the House to file suit in
federal court against the head of an Executive department or agency for “failure . . . to act in a
manner consistent with that official’s duties under the Constitution and laws of the United States
with respect to implementation of any provision of the Patient Protection and Affordable Care
Act.” H.R. Res. 676, 113th Cong. (2014). Section 3(a) of the same Resolution authorized the
House’s Office of General Counsel, assisted by outside counsel, to represent the House in court.
Id. After this suit commenced, the 113th Congress ended and the 114th Congress began. The
new House adopted House Resolution 5 on January 6, 2015, which provided in part that the
114th House of Representatives could succeed the 113th House of Representatives as plaintiff in
this lawsuit. H.R. Res. 5, § 3(f)(2)(A), 114th Cong. (2015).
The Secretaries moved to dismiss the case on January 26, 2015. See Mot. to
Dismiss [Dkt. 20] (Mot.); Mem. in Support [Dkt. 20-1] (Mem.). The House opposes. Mem. in
Opp’n [Dkt. 22] (Opp’n). The Secretaries have filed a reply. Reply to Opp’n to Mot. [Dkt. 26]

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(Reply). Oral argument was held on May 28, 2015. The motion is thus ripe for resolution. 9
II. LEGAL STANDARDS
The Court will analyze the pending motion under the following legal standards.
A.

Motion to Dismiss
The Secretaries move to dismiss the complaint under the Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to
state a claim upon which relief can be granted.
1. Rule 12(b)(1)
Pursuant to Rule 12(b)(1), a defendant can move to dismiss a complaint, or any
portion thereof, for lack of subject matter jurisdiction in federal court. Fed. R. Civ. P. 12(b)(1).
No action by the parties can confer subject matter jurisdiction on a federal court, because subject
matter jurisdiction is both a statutory requirement and an Article III requirement. Akinseye v.
District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter
jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr v. United
States, 529 F.3d 1112, 1115 (D.C. Cir. 2008); see Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994) (noting that federal courts have limited jurisdiction and that “[i]t is to
be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction”) (internal citations omitted). When
reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a court must construe
the complaint liberally, giving the plaintiff the benefit of all inferences that can be derived from
the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). Nevertheless, “the
9

The States of West Virginia, Oklahoma, Arizona, Louisiana, South Carolina, and Texas also
sought leave to file an Amicus Curiae Brief. Motion [Dkt. 24]. The Court will grant the motion
by separate order.
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court need not accept factual inferences drawn by plaintiffs if those inferences are not supported
by facts alleged in the complaint, nor must the Court accept plaintiffs’ legal
conclusions.” Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006).
A court may consider materials outside the pleadings to determine its jurisdiction.
Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005); Coal. for Underground
Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003). That includes materials necessary to
determine whether the plaintiff has standing. See Natural Resources Defense Council v. Pena,
147 F.3d 1012, 1024 (D.C. Cir. 1998). A court has “broad discretion to consider relevant and
competent evidence” to resolve factual issues raised by a Rule 12(b)(1) motion. Finca Santa
Elena, Inc. v. U.S. Army Corps of Engineers, 873 F. Supp. 2d 363, 368 (D.D.C. 2012) (citing 5B
Charles Wright & Arthur Miller, Federal Practice & Procedure, Civil § 1350 (3d ed. 2004)); see
also Macharia v. United States, 238 F. Supp. 2d 13, 20 (D.D.C. 2002), aff’d, 334 F.3d 61 (2003)
(in reviewing a factual challenge to the truthfulness of the allegations in a complaint, a court may
examine testimony and affidavits). In such instances, consideration of documents outside the
pleadings does not convert the motion to dismiss into one for summary judgment. Al-Owhali v.
Ashcroft, 279 F. Supp. 2d 13, 21 (D.D.C. 2003).
2. Rule 12(b)(6)
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6)
challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6). A complaint must
be sufficient “to give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
omitted). Although a complaint does not need detailed factual allegations, a plaintiff=s obligation
to provide the grounds of his entitlement to relief “requires more than labels and conclusions,

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and a formulaic recitation of the elements of a cause of action will not do.” Id. A court must
treat the complaint=s factual allegations as true, “even if doubtful in fact,” id., but a court need
not accept as true legal conclusions set forth in a complaint, see Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is “plausible on its face.” Twombly, 550 U.S. at
570. A complaint must allege sufficient facts that would allow the court “to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged
in the complaint, documents attached to the complaint as exhibits or incorporated by reference,
and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508
F.3d 1052, 1059 (D.C. Cir. 2007).
B. Standing and Subject Matter Jurisdiction
Standing is part and parcel of Article III’s limitation on the judicial power of the
United States, which extends only to cases or controversies. U.S. Const. art. III, § 2; Arizona,
135 S. Ct. at 2663. The strictures of Article III standing are by now “familiar.” United States v.
Windsor, 133 S. Ct. 2675, 2685 (2013). Standing requires (1) the plaintiff to have suffered an
injury in fact that is both (a) concrete and particularized and (b) actual or imminent, as opposed
to conjectural or hypothetical; (2) the injury to be traceable to the defendant’s actions; and (3) the
injury to be redressable by a favorable decision of the court. See id. at 2685-86 (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 559-62 (1992)).
A federal court must assure itself of both constitutional and statutory subject
matter jurisdiction. The former obtains if the case is one “arising under the Constitution, the
Laws of the United States, and Treaties made, or which shall be made, under their Authority.”

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U.S. Const. art. III, § 2. The relevant statute, 28 U.S.C. § 1331, likewise confers jurisdiction
upon lower courts to hear “all civil actions arising under the Constitution, laws, or treaties of the
United States.” As the Supreme Court held in Powell v. McCormack, federal courts have
constitutional and statutory “arising under” jurisdiction whenever a plaintiff’s claim “will be
sustained if the Constitution is given one construction and will be defeated if it is given another.”
395 U.S. 486, 514-16 (1969) (citing Bell v. Hood, 327 U.S. 678, 685 (1946); King Cnty. v.
Seattle Sch. Dist. No. 1, 263 U.S. 361, 363-64 (1923)) (internal alterations omitted).
C. Justiciability
“[T]here is a significant difference between determining whether a federal court
has ‘jurisdiction of the subject matter’ and determining whether a cause over which a court has
subject matter jurisdiction is ‘justiciable.’” Powell, 395 U.S. 486 at 512 (citing Baker v. Carr,
369 U.S. 186, 198 (1962)). Jurisdiction governs a court’s authority to hear a case; justiciability
pertains to the advisability of hearing the case. Windsor, 133 S. Ct. at 2685.
Justiciability counsels the avoidance of political cases or controversies. “The
term ‘political’ has been used to distinguish questions which are essentially for decision by the
political branches from those which are essentially for adjudication by the judicial branch.”
Powell v. McCormack, 395 F.2d 577, 591 (D.C. Cir. 1968), rev’d in part, Powell, 395 U.S. 486.
Hence the “political question” doctrine. That self-imposed limitation “bars our jurisdiction only
when the Constitution textually commits ‘the issue’ to be adjudicated in the case ‘to a coordinate
political department,’ or when there is ‘a lack of judicially discoverable and manageable
standards for resolving it.’” Hourani v. Mirtchev, Nos. 13-7088, 13-7089, 2015 WL 4590324, at
*5 (D.C. Cir. July 31, 2015) (quoting Nixon v. United States, 506 U.S. 224, 228 (1993); Baker,
396 U.S. at 217).

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The Court must be cautious not to “elide[] the distinction” between the
“jurisdictional requirements of Article III and the prudential limits on its exercise.” Windsor,
133 S. Ct. at 3685. In the middle of their arguments concerning why the House has no
“actionable injury,” and thus no standing to sue, the Secretaries inject a separation-of-powers
argument. Mem. at 16-18. That confuses jurisdiction with justiciability, however, which are
separate principles. The first is a legal question, while the second assumes the legal answer yet
cautions prudence. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12 (2004). The
Court will not consider separation of powers in the standing analysis. See Powell, 395 U.S. 486,
512 (“[T]he doctrine of separation of powers is more properly considered in determining whether
the case is ‘justiciable.’”). 10
III. ANALYSIS
Under these long-established principles of law, and accepting the facts as alleged
in the Complaint, the Court must decide whether it can hear this case (jurisdiction) and whether
it should hear this case (justiciability).
A. Standing
There is no authority that answers the questions posed by the Secretaries’ motion.
A survey of the precedent relied on by the parties is a worthwhile starting point, however, as it
provides the guiding principles to be applied.
10

The Supreme Court has opined that “the law of Art. III standing is built on a single idea—the
idea of separation of powers.” Allen v. Wright, 468 U.S. 737, 752 (1984). But Allen’s reference
to “separation of powers” concerned the role prescribed for the Judiciary in Article III, i.e., to
hear only cases or controversies. Allen did not address the separation between the Executive and
Legislature Branches, which is at the heart of the argument advanced by the Secretaries. See
Mem. at 16 (“The House seeks to upset this finely wrought balance by attempting to control the
implementation of federal law, outside the Article I procedures for the enactment of legislation
by bringing a suit premised on its disagreement with the Executive Branch’s interpretation of
that law.”).
16

1. Precedent
The House draws heavily from Coleman v. Miller, in which the Kansas legislature
had considered a proposed amendment to the U.S. Constitution known as the Child Labor
Amendment. 307 U.S. 433, 435 (1939). When the resolution came to a vote, 20 state senators
voted for it and 20 voted against it. Id. at 436. The Lieutenant Governor of Kansas, presiding
over the Kansas Senate, cast the deciding vote in favor of the amendment. Id. The 20 opposing
senators sought a writ of mandamus to prohibit ratification of the amendment, on the ground that
the Lieutenant Governor had no right to cast the deciding vote. Id. After the writ was denied by
the Kansas Supreme Court, an appeal was taken to the U.S. Supreme Court. 11
Coleman recognized that the 20 senator-plaintiffs had “a plain, direct and
adequate interest in maintaining the effectiveness of their votes.” Id. at 438. That interest was
“to have their votes given effect.” Id. Because their votes “would have been sufficient to defeat
ratification,” but ratification nevertheless passed, the senators’ votes had “been overridden and
virtually held for naught.” Id.
Importantly, the Kansas senator-plaintiffs were not complaining about the State
Executive’s adherence to a law that had been properly passed. Instead, the Executive (in the
person of the Lieutenant Governor) was said to have interfered with the legislative process so
that the senator-plaintiffs’ legislative acts were frustrated. The senator-plaintiffs, despite their
equal vote with senator-proponents, were unable to prevent the amendment’s ratification. They
were not complaining about the manner of implementation or interpretation of any law by the
Governor. The same is true of the corollary principle recognized in Coleman: that the senator-

11

The federal question implicated was Article V’s requirements for amending the Constitution.
Id. at 437-38 (citing U.S. Const. art. V).
17

plaintiffs would have suffered an equally grave injury had a bill they voted for with the requisite
votes not been enacted. That injury, too, resides in the disruption of the legislative process and
not in the implementation or interpretation of a law that has passed.
The Secretaries rely chiefly on Raines v. Byrd, in which Senator Robert C. Byrd
and other Members of Congress challenged the Line-Item Veto Act, against which they had
voted but which was passed by majority vote and signed by former President Clinton. 521 U.S.
811 (1997). See Pub. L. 104-130, 110 Stat. 1200 (1996) (Line-Item Veto Act). Under the LineItem Veto Act, the President could “cancel” certain spending and tax benefit measures “after he
[had] signed them into law.” Raines, 521 U.S. at 814. The President’s “cancellation” of a
funding provision of an appropriation law could only be overridden by “disapproval bills” passed
by the House and Senate. Id. at 815 (citing Line-Item Veto Act § 1025). Without such dual
votes, the Executive could refuse to spend monies as directed by Congress. The Act specifically
provided that any Member of Congress could assert a constitutional violation and sue for
declaratory or injunctive relief. Raines, 521 U.S. at 815-16. Senator Byrd and his co-plaintiffs
did just that, arguing that the Line Item Veto Act “‘(a) alter[ed] the legal and practical effect of
all votes they may cast . . . [on appropriations bills]; (b) divest[ed] [them] of their constitutional
role in the repeal of legislation, and (c) alter[ed] the constitutional balance of powers . . . .’” Id.
at 816.
The Supreme Court held that the Raines plaintiffs failed to establish that “their
claimed injury is personal, particularized, concrete, and otherwise judicially cognizable.” Id. at
820. In other words, the plaintiffs had statutory authority to sue but did not have Article III
standing. Id. at 815-19. The Court read Coleman narrowly: “[O]ur holding in Coleman stands
(at most[]) for the proposition that legislators whose votes would have been sufficient to defeat

18

(or enact) a specific legislative Act have standing to sue if that legislative action goes into effect
(or does not go into effect), on the ground that their votes have been completely nullified.” Id. at
823. The Court distinguished the Raines plaintiffs on the grounds that they had “alleged no
injury to themselves as individuals,” and because “the constitutional injury they allege[d] is
wholly abstract and widely dispersed.” Id. at 829. The Court added that “their attempt to
litigate this dispute at this time and in this form is contrary to historical experience.” Id.
The Secretaries perceive a straight line between Raines and this suit: they argue
that the House has alleged only an “abstract dilution of institutional legislative power.” Mem. at
1 (quoting Raines, 521 U.S. at 826). But the plaintiff here is the House of Representatives, duly
authorized to sue as an institution, not individual members as in Raines. In fact, Raines
“attach[ed] some importance to the fact that appellees have not been authorized to represent their
respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.”
Id. at 829. That important fact clearly distinguishes this case. As discussed below, the injury
here is sufficiently concrete and particularized as to the whole House.
Our Court of Appeals has considered congressional standing in other contexts. In
United States v. AT&T, the D.C. Circuit considered whether Congress (or its committees) had
standing to sue in an official capacity to demand information from the Executive in furtherance
of Congress’s oversight role. 551 F.2d 384 (D.C. Cir. 1976). 12 The case presented a “portentous
clash between the executive and legislative branches” over congressional subpoenas to AT&T
for information related to warrantless wiretaps that the Executive Branch had refused to release
on grounds of national security. Id. at 384. The D.C. Circuit found federal subject matter
12

Although styled as a lawsuit between the United States and AT&T, the latter’s only interest
was “to determine its legal duty” vis-à-vis a congressional subpoena that the Executive had
ordered it to ignore. Id. at 388-89.
19

jurisdiction, id. at 388-89, and also found it “clear that the House as a whole has standing to
assert its investigatory power, and can designate a member to act on its behalf.” Id. at 391.
AT&T was based on solid precedent. Earlier cases had “establish[ed], at a
minimum, that the mere fact that there is a conflict between the legislative and executive
branches . . . does not preclude judicial resolution of the conflict.” Id. at 390 (citing S. Select
Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (1974)). AT&T also relied
on United States v. Nixon, 418 U.S. 683 (1974), which resolved an “analogous conflict between
the executive and judicial branches and stands for the justiciability of such a case.” AT&T, 551
F.2d at 390.
More recent decisions from this Court have followed AT&T’s lead. See Comm.
on Oversight and Gov. Reform v. Holder, 979 F. Supp. 2d 1, 4 (D.D.C. 2013) (“[T]he Court finds
that neither the Constitution nor prudential considerations require judges to stand on the
sidelines. There is federal subject matter jurisdiction over this complaint, and it alleges a cause of
action that plaintiff has standing to bring.”); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d
53, 68 (D.D.C. 2008) (“The Committee and several supporting amici are correct that AT&T[] is
on point and establishes that the Committee has standing to enforce its duly issued subpoena
through a civil suit.”); House of Representatives v. Dep’t of Commerce, 11 F. Supp. 2d 76, 85
(D.D.C. 1998) (“[T]he court finds that [the House of Representatives] has properly alleged a
judicially cognizable injury through its right to receive information by statute and through the
institutional interest in its lawful composition . . . .”). It is thus well established in this Circuit
that the House and its committees have, at least in some circumstances, standing to sue. 13

13

See also In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1299, 1307 (M.D. Fla.
1977).
20

Notably, the above-cited decisions all found that AT&T’s precedential force was
not diminished by Raines. See Miers, 558 F. Supp. 2d at 68 (“Raines and subsequent cases have
not undercut either the precedential value of AT&T[] or the force of its reasoning.”); House of
Representatives, 11 F. Supp. 2d at 89 (“The finding of an injury in this matter neither conflicts
with Raines v. Byrd nor gives rise to a doctrine of legislative standing.”); see also Holder, 979 F.
Supp. 2d at 14 (“[Raines] does not stand for the proposition that Congress can never assert its
institutional interests in court. Instead, it expressly leaves that possibility open[.] So the Raines
decision does not compel the dismissal of this case, brought by a duly authorized House
Committee.”). This Court agrees that AT&T survives Raines.
The most recent opinion on legislative standing is Arizona State Legislature v.
Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015). 14 In that case, the
Arizona Legislature filed suit challenging Proposition 106, a statewide citizen’s initiative that
had committed redistricting authority to an independent commission. Id. at 2661. The Arizona
Legislature argued that it had “primary responsibility,” id. at 2663, for redistricting under the
Elections Clause, U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding
Elections for Senators and Representatives, shall be prescribed in each State by the Legislature
thereof . . . .”). The Supreme Court agreed that Proposition 106 “strip[ped] the Legislature of its
alleged prerogative to initiate redistricting,” and that the Legislature, therefore, had alleged an
adequate injury in fact. Arizona, 135 S. Ct. at 2663. 15

14

The House submitted this case as new authority on June 30, 2015. Notice [Dkt. 32]. The
Secretaries lodged a response to that filing, Dkt. 36, which the House has since moved to strike,
Dkt. 38. The Secretaries oppose the motion to strike, Dkt. 39, and the House has filed a reply in
support thereof, Dkt. 40. The Court denies the motion to strike.
15

On the merits, a divided Court sustained Proposition 106. Id. at 2671-77.
21

Arizona carefully distinguished Raines, emphasizing its narrow holding “that six
individual Members of Congress lacked standing to challenge the Line Item Veto Act.” Id. at
2664 (emphasis in original). The Arizona Court reiterated that there was “some importance to
the fact that [the Raines plaintiffs] not been authorized to represent their respective Houses of
Congress.” Id. In contrast, the Arizona Legislature was “an institutional plaintiff asserting an
institutional injury.” Id.
To be sure, the Arizona Court went out of its way not to decide the question
presented in this case: “The case before us does not touch or concern the question whether
Congress has standing to bring a suit against the President. There is no federal analogue to
Arizona’s initiative power, and a suit between Congress and the President would raise
separation-of-powers concerns absent here.” Id. at 2665 n.12. That obiter dictum raises cautions
only as to justiciability, not jurisdiction.
In sum, no case has decided whether this institutional plaintiff has standing on
facts such as these. Without the benefit of fully-applicable precedent, the Court proceeds to
address the merits of the Secretaries’ motion.
2. Plaintiff’s Standing In This Case
The instant Complaint presents two theories of legal harm. First, the House
alleges that the Executive has spent billions of dollars without a valid appropriation, in direct
contravention of Article I, § 9, cl. 7. See Compl. ¶¶ 25-41, 51-90 (Counts I-V) (the NonAppropriation Theory). Counts I and II allege constitutional violations. Count III alleges a
violation of 31 U.S.C. § 1324 (the appropriation for Section 1401 Premium Tax Credits) and
Count IV alleges a violation of “the entire statutory scheme [of] the ACA.” Count V asserts a
cause of action under the APA, alleging that the Secretaries’ expenditures violate both the

22

Constitution and federal statutory law.
Second, the House alleges that Secretary Lew has not abided by the employer
mandate as it was enacted in the ACA, thereby ‘nullifying’ the law. See Compl. ¶¶ 42-50, 98108 (Counts VI-VIII) (the Employer-Mandate Theory). 16 All three counts are couched as
constitutional violations, citing only Article I, § 1 (vesting legislative power in Congress) and
Article I, § 7, cl. 2 (prescribing the lawmaking process). The gist of this theory is that Secretary
Lew stepped into congressional shoes by effectively amending a congressionally-adopted law
through regulation. But as discussed below, the heart of the alleged violation remains statutory,
not constitutional: the House alleges not that Secretary Lew has disobeyed the Constitution, but
that he disobeyed the ACA as enacted.
Distilled to their essences, the Non-Appropriation Theory alleges that the
Executive was unfaithful to the Constitution, while the Employer-Mandate Theory alleges that
the Executive was unfaithful to a statute, the ACA. That is a critical distinction, inasmuch as the
Court finds that the House has standing to assert the first but not the second.
a. The Non-Appropriation Theory (Counts I-V)
The Secretaries argue that the House lacks standing to sue and stop expenditures
for which no annual appropriation was enacted. The House rejoins that it has standing to sue on
several grounds, not least of which is that it has been “divested utterly and completely of its most
defining constitutional function.” Opp’n at 25. The Court agrees: the constitutional trespass
alleged in this case would inflict a concrete, particular harm upon the House for which it has
standing to seek redress in this Court.
16

Although the House refers to these as the “Nullification Counts,” Opp’n at 2, the Court will
avoid that terminology so as not to confuse the theory with whether vote nullification is a
cognizable injury under the Non-Appropriation Theory.
23

i. Nature of the Theory
The persistent refrain in the Secretaries’ memorandum is that the House has no
standing to “maintain an action against the Executive Branch concerning its implementation of a
statute.” Mem. at 1 (emphasis added). The Secretaries use the word “implement,” or a
derivative thereof, no fewer than forty times in their twenty-six page memorandum. See
generally id. They also cast this case as “concerning the proper interpretation of federal law,”
id. at 2 (emphasis added), and about “the execution of federal law,” id. at 3 (emphasis added).
Properly understood, however, the Non-Appropriation Theory is not about the
implementation, interpretation, or execution of any federal statute. It is a complaint that the
Executive has drawn funds from the Treasury without a congressional appropriation—not in
violation of any statute, but in violation of Article I, § 9, cl. 7 of the Constitution. 17 The NonAppropriation Theory, in other words, is not about how Section 1402 is being applied, but rather
how it is funded.
This clarification renders most of the Secretaries’ precedent inapposite. They
argue, for example, that our “Constitution does not contemplate an active role for Congress in
the supervision of officers charged with the execution of the laws it enacts,” Mem. at 12 (quoting
Bowsher v. Synar, 478 U.S. 714, 722 (1986)), and that Congress does not “have standing
anytime a President allegedly acts in excess of statutory authority,” Mem. at 14-15 (quoting
Campbell v. Clinton, 203 F.3d 19, 22 (D.C. Cir. 2000)). But again, the Non-Appropriation
Theory is not about executing congressionally-enacted laws or staying within their bounds. Nor
17

The nature of this particular constitutional violation is that it will almost always violate an
appropriations statute as well. In this case, it would conceivably violate the appropriations
legislation by which Congress funded the Section 1401 Premium Tax Credits and not, the House
argues, the Section 1402 Cost-Sharing Offsets. But it is only the allegedly unconstitutional
nature of the Executive’s actions that causes a particular enough harm to convey standing.
24

is it “a generalized grievance about the conduct of government.” Mem. at 25 n.12 (quoting
United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1382 (D.C. Cir. 1984)). It
alleges a specific, constitutional violation that is wholly irrespective of the ACA’s
implementation.
ii. Injury in Fact
Once the nature of the Non-Appropriation Theory is appreciated, it becomes clear
that the House has suffered a concrete, particularized injury that gives it standing to sue. 18 The
Congress (of which the House and Senate are equal) is the only body empowered by the
Constitution to adopt laws directing monies to be spent from the U.S. Treasury. See Dep’t of the
Navy v. FLRA, 665 F.3d 1339, 1348 (D.C. Cir. 2012) (“Congress’s control over federal
expenditures is ‘absolute.’”) (quoting Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 185
(D.C. Cir. 1992)); Nevada v. Dep’t of Energy, 400 F.3d at 13 (“[T]he Appropriations Clause of
the U.S. Constitution ‘vests Congress with exclusive power over the federal purse’”) (quoting
Rochester, 960 F.2d at 185); Hart’s Adm’r v. United States, 16 Ct. Cl. 459, 484 (1880)
(“[A]bsolute control of the moneys of the United States is in Congress, and Congress is
responsible for its exercise of this great power only to the people.”), aff’d sub nom. Hart v.
United States, 118 U.S. 62 (1886). Yet this constitutional structure would collapse, and the role
of the House would be meaningless, if the Executive could circumvent the appropriations
process and spend funds however it pleases. If such actions are taken, in contravention of the
specific proscription in Article I, § 9, cl. 7, the House as an institution has standing to sue. None
of the Secretaries’ four arguments, Mem. at 9-23, persuades the Court otherwise. 19
18

The Secretaries have mounted no argument as to the traceability or redressability of that
injury, and thus concede that those elements of standing are satisfied. See generally Mem.
19

The Secretaries stake a fifth argument, that “[t]he separation of powers forecloses the House’s
25

(a) Vindication of the rule of law generally
The Secretaries first argue that “vindication of the rule of law” is too generalized
a grievance to be entertained by an Article III court. Mem. at 9-11. Their argument depends on,
and cites almost exclusively, Raines v. Byrd. But this is not a case about “abstract dilution of
institutional legislative power” as addressed in Raines, 521 U.S. at 826. The institutional injury
was “diluted” in that case because only six of the 535 members of Congress sued as plaintiffs. 20
The critical distinction here is that the House of Representatives as an institution is the plaintiff.
See Arizona, 135 S. Ct. at 2664 (“The ‘institutional injury’ at issue [in Raines], we reasoned,
scarcely zeroed in on any individual Member. . . . The Arizona Legislature, in contrast, is an
institutional plaintiff asserting an institutional injury.”). 21
The difference between institutional and individual plaintiffs also explains (and
renders irrelevant) the Raines dichotomy between the “loss of political power” and the “loss of
a[] private right.” 521 U.S. at 821. In Raines, the Supreme Court reasoned that the plaintiffs’

claim of standing,” Mem. at 16-19, which the Court will not consider in its standing analysis. As
described above, separation-of-powers concerns are properly accounted for in a justiciability
analysis, not a jurisdictional analysis.
20

The Court takes judicial notice that the 105th Congress comprised 435 Representatives and
100 Senators. See http://history.house.gov/Congressional-Overview/Profiles/105th/ (last visited
on Sep. 8, 2015).
21

It is of course true that the House is but one chamber of Congress, and the Senate is not a
plaintiff in this suit. That distinguishes the case from Arizona, where the entire state legislature
sued. 135 S. Ct. at 2658-59. Yet the House remains an institution claiming an institutional
injury. The only question is whether that injury “zeroe[s] in on” the House, or is too “widely
disbursed” between it and the Senate. Id. at 2665. In Raines, six of 535 congressional members
was not enough. Id. In Arizona, the entire legislature was enough. Id. In this case, one of two
separate appropriating institutions—half of Congress—is the plaintiff. The Court finds that the
injury, although arguably suffered by the House and Senate alike, is sufficiently concentrated on
the House to give it independent standing to sue. An injury in fact must be inflicted particularly,
but not exclusively, on the plaintiff.
26

injury was not “concrete” in part because none of them had a personal stake at issue. See
Kucinich v. Bush, 236 F. Supp. 2d 1, 7 (D.D.C. 2002) (“Raines teaches us that generalized
injuries that affect all members of Congress in the same broad and undifferentiated manner are
not sufficiently ‘personal’ or ‘particularized,’ but rather are institutional, and too widely
dispersed to confer standing.”) (emphasis in original). But when the institution itself files suit, it
can obtain a remedy for the “institutional” injury that the Raines Court found “too widely
dispersed” when asserted by only a few members. Id.; cf. Arizona, 135 S. Ct. at 2664. As this
Court has held, Raines “does not stand for the proposition that Congress can never assert its
institutional interests in court,” but instead “expressly leaves that possibility open.” Holder, 979
F. Supp. 2d at 14.
The Secretaries also cite Nevada Commission on Ethics v. Carrigan, 131 S. Ct.
1343, 2350 (2011) (“The legislative power thus committed is not personal to the legislator but
belongs to the people; the legislator has no personal right to it.”). See Mem. at 11. But the
Secretaries’ ensuing sentence does not follow: “A legislative plaintiff, then, does not hold any
legally protected interest in the proper application of the law that would be distinct from the
interest held by every member of the public at large.” Id. An individual legislator holds political
power in trust for the people; she may gain and lose that power at their whim. The legislature’s
role is not so fleeting; the House remains the House, and it can sue to vindicate certain
institutional interests, such as its distinct role in the appropriations process.
It is similarly misleading to say that the House’s interest is “not as a prerogative
of personal power,” Mem. at 11 (quoting Raines, 521 U.S. at 821), or that “legislative power thus
committed is not personal to the legislator but belongs to the people,” Mem. at 11 (quoting
Nevada Comm’n, 131 S. Ct. at 2350). The cases quoted are readily distinguishable, because the

27

plaintiffs were individual legislators. See Raines, 521 U.S. at 829 (“We attach some importance
to the fact that appellees have not been authorized to represent their respective Houses of
Congress in this action.”). The ‘person’ in this case is the House; to deem its prerogatives
‘personal’ to the institution does not contravene either Raines or Nevada Commission. And it is
entirely consistent with Arizona.
The Secretaries also urge that “[o]nce a bill becomes a law, a Congressman’s
interest in its enforcement is shared by, and indistinguishable from, that of any other member of
the public.” Mem. at 11 (quoting Daughtrey v. Carter, 584 F.2d 1050, 1057 (D.C. Cir. 1978)).
That much may be conceded, but it does not resolve the question of standing for the House of
Representatives in this case. Instead, it illustrates precisely why the nature of the NonAppropriation Theory is so important to grasp: the House is not suing to police implementation
of the ACA, but rather to redress an alleged violation of the Constitution. And because the
House occupies a unique role in the appropriations process prescribed by the Constitution, not
held by the ordinary citizen, perversion of that process inflicts on the House a particular injury
quite distinguishable from any suffered by the public generally. 22
(b) Interest in the implementation of federal law
The Secretaries argue that Congress has no “legally cognizable interest in the
manner in which federal law is implemented.” Mem. at 12-16. This has been addressed. The
Non-Appropriation Theory does not turn on the implementation, interpretation, or execution of
the ACA. The question presented is instead constitutional. It is therefore unavailing, even if
true, that “Congress plays no direct role in the execution of federal law and has no continuing or
22

This also puts aside the obvious distinguishing feature of Daughtrey, which considered “a
Congressman’s interest” in enforcing federal law. 584 F.2d at 1057 (emphasis added). Cf.
Raines, 521 U.S. at 829; Arizona, 135 S. Ct. at 2664.
28

distinct interest or stake in a bill once it becomes a law.” Id. at 13. The House does have a
continuing and distinct interest in the appropriation process, for that is its role in our
constitutional system and the source of virtually all of the House’s political power.
(c) Non-judicial countermeasures
The Secretaries further argue that the House is not injured by the lack of an
appropriation because it can remedy or prevent that injury through means outside this lawsuit.
Id. at 19-20. Chief among those means, they contend, is “the elimination of funding.” Id. As
the House points out, the Secretaries are “apparently oblivious to the irony” of their argument.
Opp’n at 35. Eliminating funding for Section 1402 is exactly what the House tried to do. But as
the House argues, Congress cannot fulfill its constitutional role if it specifically denies funding
and the Executive simply finds money elsewhere without consequence. Indeed, the harm alleged
in this case is particularly insidious because, if proved, it would eliminate Congress’s role via-avis the Executive. The political tug of war anticipated by the Constitution depends upon Article
I, § 9, cl. 7 having some force; otherwise the purse strings would be cut.
The Court finds equally unpersuasive the argument that Congress “could repeal or
amend the terms of the regulatory or appropriations authority that it has vested in the Executive
Branch.” Mem. at 19. 23 But the authority trespassed upon under the Non-Appropriation Theory
is not statutory; it is constitutional. It was not vested in the Executive by Congress; it was vested
in Congress by sovereign people through constitutional ratification. Neither Congress nor the
Executive has the authority to repeal or amend the terms of Article I, § 9, cl. 7.
23

The parties are obviously at odds over the meaning of the “appropriations authority” currently
in place. The House believes that no appropriation has been made for Section 1402 Cost-Sharing
Offsets, while the Secretaries maintain that such payments “are being made as part of a
mandatory payment program that Congress has fully appropriated.” Mem. at 6. That is a dispute
to be resolved at the merits, which the parties have not yet briefed.
29

(d) The ‘nullification’ theory of standing.
In an obvious effort to preempt the House’s invocation of Coleman v. Miller, the
Secretaries argue that ‘vote nullification’ is not a cognizable injury. Mem. at 20-23. The House
responds that this case “presents the same type of nullification injury the Supreme Court
recognized in Coleman.” Opp’n at 27. The Court need not reach this question, however,
because it finds that the House suffers a sufficiently concrete and particularized injury by its
displacement from the appropriations process. Whether its votes were ‘nullified’ within the
meaning of Coleman need not be addressed at this juncture.
iii. Specific Rulings
The House of Representatives as an institution would suffer a concrete,
particularized injury if the Executive were able to draw funds from the Treasury without a valid
appropriation. The House therefore has standing to sue on its Non-Appropriation Theory, to the
extent that it seeks to remedy constitutional violations. That conclusion does not end the
analysis, however.
Some of the counts under the Non-Appropriation Theory do not seek redress for
constitutional violations. Count III alleges a violation of 31 U.S.C. § 1324, which appropriates
funds for Section 1401 Premium Tax Credits but not, allegedly, the Section 1402 Cost-Sharing
Offsets. Because that question is statutory and not constitutional, it falls within the sphere of
cases to which the Secretaries’ precedent does apply: those that concern the implementation,
interpretation, or execution of federal statutory law. 24 The Court will therefore grant the
Secretaries’ motion as to Count III and dismiss it. The Court will also dismiss Count IV, which
24

As noted above, the merits of the constitutional claim will inevitably involve some statutory
analysis. The Secretaries’ primary defense will be that an appropriation has been made, which
will require reading the statute. But that is an antecedent determination to a constitutional claim.
30

similarly alleges a violation of the ACA’s “statutory scheme.” Compl. ¶ 79.
Count V alleges violations of three prongs of the Administrative Procedure Act.
The House has standing under one of them: to redress agency action that is “contrary to
constitutional right, power, privilege, or immunity,” Compl. ¶ 85 (citing 5 U.S.C. § 706(2)(B)).
The House may not proceed under the APA, however, to the extent that it challenges agency
action as “in excess of statutory jurisdiction, authority, or limitation,” Compl. ¶ 86 (citing 5
U.S.C. § 706(2)(C)) or agency action that is “not in accordance with law,” Compl. ¶ 84 (citing 5
U.S.C. § 706(2)(A)). Such violations would cause the House no particular harm, for the reasons
set forth above. Count V will not be dismissed, therefore, but merely limited in scope.
Although Counts I and II both cite constitutional provisions, only Count I will
survive the Secretaries’ motion. Count I alleges a violation of the specific, constitutional
prohibition in Article I, § 9, cl. 7 that is meant to safeguard the House’s role in the appropriations
process and keep the political branches of government in equipoise. Count II is far more
general: it cites only Article I, § 1 (vesting legislative power in Congress) and Article I, § 7, cl. 2
(prescribing the lawmaking process). Put simply, the allegation in Count II is that the House is
part of Congress, and the Secretaries are not.
That is insufficient to allege a particularized harm to the House. If the invocation
of Article I’s general grant of legislative authority to Congress were enough to turn every
instance of the Executive’s statutory non-compliance into a constitutional violation, there would
not be decades of precedent for the proposition that Congress lacks standing to affect the
implementation of federal law. See Bowsher, 478 U.S. at 722 (“The Constitution does not
contemplate an active role for Congress in the supervision of officers charged with the execution
of the laws it enacts.”); Daughtrey, 584 F.2d at 1057 (“Once a bill becomes law, a

31

Congressman’s interest in its enforcement is shared by, and indistinguishable from, that of any
other member of the public.”); see also Russell v. DeJongh, 491 F.3d 130, 134-35 (3d Cir. 2007)
(“[T]he authorities appear to hold uniformly that an official’s mere disobedience or flawed
execution of a law for which a legislator voted … is not an injury in fact for standing
purposes.”). Where the dispute is over true implementation, Congress retains its traditional
checks and balances—most prominently its purse strings. But when the appropriations process is
itself circumvented, Congress finds itself deprived of its constitutional role and injured in a more
particular and concrete way. For these reasons, the Court will dismiss Count II.
The House has standing to pursue this lawsuit under its Non-Appropriation
Theory as alleged in Count I, and in Count V to the extent that it is predicated on a constitutional
violation. The Secretaries’ motion will be granted as to Counts II, III, IV, and V, in part.
b. The Employer-Mandate Theory (Counts VI-VIII)
The Employer-Mandate Theory stands on very different footing than the NonAppropriation Theory. The House alleges that Secretary Lew and Treasury have disregarded the
congressionally-adopted employer mandate in two ways. First, Secretary Lew delayed the
effective date of the mandate beyond the statutory prescription of January 1, 2014. Compl. ¶ 45.
Second, he reduced the percentage of employees or full-time equivalents (FTEs) who must be
offered insurance, thereby decreasing the burden on employers. Id. ¶ 46. Both of these
regulatory actions are said to “injure the House by, among other things, usurping its Article I
legislative authority.” Id. ¶ 50. Specifically, the House assails two parts of a Treasury Rule
preamble (Counts VI and VII) and another part of the substantive Rule (Count VIII).
Despite its formulation as a constitutional claim, the Employer-Mandate Theory
is fundamentally a statutory argument. The House cites only Article I, § 1 and Article I, § 7, cl.
2 in its Complaint. See Compl. ¶¶ 91-108 (Counts VI-VIII). Those provisions, taken together,
32

establish that Congress has sole legislative authority and that laws cannot be adopted without its
approval. The House extrapolates from this that any member of the Executive who exceeds his
statutory authority is unconstitutionally legislating.
The argument proves too much. If it were accepted, every instance of an extrastatutory action by an Executive officer might constitute a cognizable constitutional violation,
redressable by Congress through a lawsuit. Such a conclusion would contradict decades of
administrative law and precedent, in which courts have guarded against “the specter of ‘general
legislative standing’ based upon claims that the Executive Branch is misinterpreting a statute or
the Constitution.” House of Representatives, 11 F. Supp. at 89-90; cf. Windsor, 133 S. Ct. at
2689 (“The integrity of the political process would be at risk if difficult constitutional issues
were simply referred to the Court as a routine exercise.”). 25 In sum, Article I is not a talisman;
citing its most general provisions does not transform a statutory violation into a constitutional
case or controversy.
The generalized nature of the injury alleged in the Employer-Mandate Theory is
also relevant because other litigants can sue under the Administrative Procedure Act to invalidate
Treasury regulations. Cf. Blackfeet Nat’l Bank v. Rubin, 890 F. Supp. 48, 54 (D.D.C.), aff'd 67
F.3d 972 (D.C. Cir. 1995). Indeed, litigation over implementing regulations has been ubiquitous
since the ACA’s inception. E.g., King v. Burwell, 135 S. Ct. at 2488. A private plaintiff who is
aggrieved by Treasury’s actions is free to sue and convince a court that such regulations are
contrary to the ACA or otherwise improper.
The redressability element of the standing analysis also distinguishes the two
theories. If successful on the merits, which are not addressed here, the Non-Appropriation
25

As described below, today’s decision raises no such specter.
33

theory might result in an injunction against further Section 1402 Cost-Sharing Offsets until an
appropriation is made. That would cure the constitutional injury. But under the EmployerMandate Theory, the House merely asks the Court to declare unconstitutional several subsections
of the preamble to a Treasury Rule. Id. Quite conspicuously, and in contrast to the NonAppropriation Theory, the House does not seek injunctive relief with regard to the employer
mandate. Compl. at 26-27 (Prayer for Relief). But if the alleged injury resides in the delayed
enforcement of the employer mandate, declaratory relief alone would not help. Striking down
Treasury’s preamble to would not require Secretary Lew to start assessing payments. He might
instead continue delaying the employer mandate without memorializing such delay in a
regulation. 26 Thus, a ruling for the House may offer nothing but the “psychic satisfaction” of
knowing “that the Nation’s laws are faithfully enforced,” which is “not an acceptable Article III
remedy because it does not redress a cognizable Article III injury.” Steel Co. v. Citizens for
Better Env’t, 523 U.S. 83, 107 (1998).
The Employer-Mandate Theory concerns the Executive’s alleged infidelity to the
ACA. To the extent the theory is expressed as a constitutional violation—on the ground that the

26

The “assessable payment[s]” under the employer mandate are only “assessable.” Because they
are only due “upon notice and demand by the Secretary,” 26 U.S.C. § 4980H(d)(1), the Secretary
might stay assessments within his discretion and refuse to demand payment. Cf. Oil, Chemical
and Atomic Workers Int’l Union v. Occupational Safety & Health Review Comm’n, 671 F.2d
643, 649-50 (D.C. Cir. 1982) (“[The Secretary of Labor] is the exclusive prosecutor of OSHA
violations. Necessarily included within the prosecutorial power is the discretion to withdraw or
settle a citation issued to an employer, and to compromise, mitigate or settle any penalty assessed
under the Act.”) (citations omitted); id. at 650 (“We endorse so broad a reading of prosecutorial
discretion under the statute because we believe that such discretion comports with the
Congressional intent that the Secretary be charged with the basic responsibilities for
administering the Act.”). See also Ass’n of Irritated Residents v. EPA, 494 F.3d 1027, 1032-33
(D.C. Cir. 2007).
34

Secretary of the Treasury is not Congress—the theory is too general to state a concrete,
particularized harm to the House. Because the House lacks standing to pursue these claims, the
Secretaries’ motion will be granted as to Counts VI-VIII.
3. The House has Standing
The Court concludes that the House of Representatives has alleged an injury in
fact under its Non-Appropriation Theory—that is, an invasion of a legally protected interest that
is concrete and particularized. Article I could not be more clear: “No Money shall be drawn
from the Treasury, but in Consequence of Appropriations made by Law . . . .” U.S. Const. art. I,
§ 9, cl. 7. Neither the President nor his officers 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. See U.S.
Dep’t of the Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1347 (2012) (“[If not for the
Appropriations Clause,] the executive would possess an unbounded power over the public purse
of the nation; and might apply all its monied resources at his pleasure.”) (quoting 2 Joseph Story,
Commentaries on the Constitution of the United States § 1342, at 213-14 (1833)). The genius of
our Framers was to limit the Executive’s power “by a valid reservation of congressional control
over funds in the Treasury.” OPM v. Richmond, 496 U.S. 414, 425 (1990). Disregard for that
reservation 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.
B. Subject Matter Jurisdiction
Although the Secretaries do not seek dismissal for want of subject matter
jurisdiction, federal courts have “an independent obligation to determine whether subject matter
jurisdiction exists, even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94

35

(2010); Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
This case “arises under” the Constitution in both a constitutional and statutory
sense. The allegations here turn on a straightforward constitutional analysis: did the Secretaries
violate Article I, § 9, cl. 7? “It has long been held that a suit arises under the Constitution if a
petitioner's claim will be sustained if the Constitution is given one construction and will be
defeated if it is given another.” Powell, 395 U.S. at 514 (citing Bell, 327 U.S. at 685; King
County, 263 U.S. at 363-364) (alterations and quotation marks omitted). The relevant statute, 28
U.S.C. § 1331, similarly confers jurisdiction when the “case depends directly on construction of
the Constitution.” Powell, 395 U.S. at 516. The Court concludes that it has subject matter
jurisdiction over this case.
C. Cause of Action
The Secretaries argue that the House has no cause of action even if it has standing
to sue. The House rejoins that it has causes of action under the Declaratory Judgment Act; under
the Administrative Procedure Act (as to Count V only); and impliedly under the Constitution.
As to each Count for which the House has standing—Count I and part of Count V—it also has
alleged a proper cause of action. 27
1. Declaratory Judgment Act, 28 U.S.C. § 2201
The parties agree that the Declaratory Judgment Act does not itself create a cause
of action, but instead requires that there be an independent “case of actual controversy.” See 28
U.S.C. § 2201(a). Compare Mem. at 23-24 with Opp’n at 38-40. In other words, “the
availability of [declaratory] relief presupposes the existence of a judicially remediable right.”
C&E Servs., Inc. of Wash. v. D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002).
27

The Court will not address Counts II-IV or VI-VIII.
36

So, while the Secretaries make separate arguments about the House’s lack of
standing and its lack of a cause of action under the Declaratory Judgment Act, the two inevitably
collapse into one inquiry: does the House have standing? Not surprisingly, therefore, the parties
merely incorporate their standing arguments into their cause-of-action arguments. See Mem. at
24 (“[A]s explained above, the House has no direct constitutional role in the implementation of
law.”); Opp’n at 39 (“[T]he House need only demonstrate [] ‘a case of actual controversy,’ i.e.,
that it has standing, which it does, see supra Argument, Part I . . . .”).
It logically follows that the Court has already decided the question. The House
has standing under the Non-Appropriation Theory (as to Count I and Count V, in part) but not
under the Employer-Mandate Theory. The House accordingly may pursue a remedy under the
Declaratory Judgment Act coextensive with its standing under the Non-Appropriation Theory.
Apart from finding an actual controversy, the Court need only assure itself that the case is
“within its jurisdiction” and that the House has filed “an appropriate pleading.” 28 U.S.C. §
2201(a). Both elements are satisfied here, and the Secretaries do not contest either one. The
Court concludes that the House can seek relief under the Declaratory Judgment Act for those
claims that it has standing to bring, i.e., Counts I and V, in part.
2. Administrative Procedure Act, 5 U.S.C. § 701 et seq.
The House argues that Count V can proceed under § 706(2)(A) of the
Administrative Procedure Act (APA), which provides that a reviewing court shall “hold unlawful
and set aside agency action” found to be “not in accordance with law.” Alternatively, the House
invokes § 706(2)(B) of the APA, which requires the same result when agency action is “contrary
to constitutional right, power, privilege, or immunity.” The Secretaries’ only response is to
challenge the House’s qualification as “[a] person suffering legal wrong because of agency

37

action.” Reply at 17 (citing 5 U.S.C. § 702). They argue that “[t]he House does not, and could
not, contend that it has suffered ‘legal wrong’ within the meaning of the APA.” Reply at 17.
Once again, the analysis collapses back into standing. For the reasons stated above, the Court
finds that the House has standing because it has alleged a legal wrong that is traceable and
remediable. The Secretaries’ APA defense therefore fails.
The Secretaries also argue that the House cannot be a “person aggrieved” because
that term does not apply to “a governmental entity.” Reply at 18 (citing Director, Office of
Workers’ Compensation Programs v. Newport News Shipbuilding, 514 U.S. 122, 130 (1995)).
But Newport News does not say “governmental entity”; it says “an agency acting in its
governmental capacity” is not a person aggrieved under the APA. 514 U.S. at 130 (emphasis
added). That analysis does not control this case, therefore, and the Secretaries offer no precedent
for the proposition that the House cannot be a “person aggrieved.” Because there is precedent
for the House filing suit to vindicate its rights in other contexts, see AT&T, 551 F.2d at 390-91;
Miers, 558 F. Supp. 2d at 69; Holder, 979 F. Supp. 2d at 3; House of Representatives, 11 F.
Supp. 2d at 86, the Court will deny the Secretaries’ motion to dismiss Count V for want of a
cause of action under the APA.
3. The U.S. Constitution
Finally, the Court finds that the House has an implied cause of action under the
Constitution itself. The Secretaries’ argument on this score revolves mostly around “private
rights of action to enforce federal law.” Reply at 18 (quoting Alexander v. Sandoval, 532 U.S.
275, 286 (2001)). But this is not a case about private citizens deputizing themselves in an effort
to enforce federal law. Such putative plaintiffs must demonstrate an expressly-conferred cause
of action precisely because they suffer no injury in their own right. It is quite another matter

38

when the House—which bears the brunt of the constitutional injury alleged—is the institutional
plaintiff. Cf. Ariz. Legislature, 135 S. Ct. at 2664 (contrasting the individual plaintiffs in Raines
to “an institutional plaintiff asserting an institutional injury”).
The distinction makes Armstrong v. Exceptional Child Center similarly
unavailing to the Secretaries. See Reply at 18-19 (citing 135 S. Ct. 1378 (2015)). In that case,
the Supreme Court refused to find an implied cause of action in the Supremacy Clause, which “is
silent regarding who may enforce federal laws in court, and in what circumstances they may do
so.” Armstrong, 135 S. Ct. at 1383. The Supreme Court reasoned that if there were such an
implied cause of action, it would significantly curtail Congress’s “ability to guide the
implementation of federal law” by deciding at the outset who can enforce it. Id. 1384. In other
words, an army of private enforcers would be inconsistent with Congress’s “broad discretion
with regard to the enactment of laws.” Id. at 1383. But Armstrong is of no concern here,
because the House and Senate are the only two possible plaintiffs under the Non-Appropriation
Theory as recognized by this Court. Nor is it inconsistent with “the context of the Constitution
as a whole,” id., for the Framers to forbid the Executive from spending un-appropriated money
and then allow the appropriators to enforce that right in court. After all, “we presume that
justiciable constitutional rights are to be enforced through the courts.” Davis v. Passman, 442
U.S. 228, 242 (1979). The House in this case has “no effective means other than the judiciary”
to seek redress for its injury and “must be able to invoke the existing jurisdiction of the courts for
the protection of [its] justiciable constitutional rights.” Id. The Court recognizes an implied
cause of action for the House as an institution under a specific constitutional prohibition whose
violation, if proved, would particularly harm Congress.
D. Justiciability

39

That the Court has jurisdiction over this case does not end the inquiry. It must
also consider whether there is any reason it should not hear the case, i.e., whether the case is
justiciable. That, in turn, presents two questions: (1) whether the claim presented and the relief
sought are of the type which admit of judicial resolution; and (2) whether the structure of the
federal government renders the issue presented a “political question,” that is, not justiciable
because of the separation of powers among the Legislative, Executive and Judicial Branches
established by the Constitution. Powell, 395 U.S. at 516-17. 28
The first question is easily answered: the claims for which the House has standing
involve pure questions of constitutional interpretation, amenable to resolution by this Court. “It
would be difficult to say that there are no ‘manageable standards’ for adjudicating the issues
raised. Familiar judicial techniques are available to construe the meaning” of the Constitution.
Powell, 395 F.2d at 594; see also Powell, 395 U.S. at 548-49 (“[A] determination of petitioner
Powell’s right to sit would require no more than an interpretation of the Constitution. Such a
determination falls within the traditional role accorded to courts to interpret the law, and does not
involve a ‘lack of respect due [a] coordinate [branch] of government,’ nor does it involve ‘an
initial policy determination of a kind clearly for nonjudicial discretion.’”) (quoting Baker, 369
U.S. at 217). In short, centuries of precedent demonstrate the Judiciary’s ability to adjudicate the
Secretaries’ compliance with the Constitution. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch)
137 (1803).

28

In addition to their justiciability argument rooted in separation of powers, the Secretaries argue
unpersuasively that the Court should exercise its discretion under the Declaratory Judgment Act
and dismiss this case because the House “has a variety of legislative means available to counter
the Executive Branch.” Mem. at 26. As discussed above, the constitutional violation of which
the House complains has the collateral effect of disarming the most potent of those legislative
means.
40

The Secretaries pin their hopes on the second question, arguing that to allow this
suit to proceed would “upset the finely wrought balance” among the branches and that the case
presents issues not “suitable for resolution by an Article III court.” Mem. at 16, 18. 29 The
argument is not persuasive. Whatever the merits of the parties’ interpretations of the differing
appropriation legislation—an issue not to be addressed at this stage of litigation—the Complaint
makes clear that this is not a dispute over statutory semantics. To the contrary, the constitutional
violation alleged is that, despite an intentional refusal by Congress to appropriate funds for
Section 1402, the Secretaries freely ignored Article I, § 9, cl. 7 of the Constitution and sought
other sources of public money. The Complaint’s Non-Appropriation Theory presents a question
of constitutional interpretation for the Judiciary, which provides “the primary means through
which [constitutional] rights may be enforced.” Davis, 442 U.S. at 241.
The Secretaries’ separation-of-powers argument, properly addressed here, is
unavailing. It consists of two principal parts: (1) the history of non-litigiousness between the
political branches, recounted in Raines, and (2) a page-long series of quotes from Justice Scalia’s
dissent in Windsor. See Mem. at 16-18. The first part is unconvincing: the refusal by several
presidents to sue Congress over the Tenure of Office Act hardly answers the question presented
by the pending motion. See 521 U.S. at 826. The refrain by either branch from exercising one of
its options does not mean that the option was unavailable; there will never be a history of
litigation until the first lawsuit is filed. The second part is not precedential: for all of its
29

The Secretaries also cite the 19th-century history of non-litigiousness between the political
Branches, which was surveyed in Raines, 521 U.S. at 826-27. The Court has carefully
considered all of Raines and finds it distinguishable. While there is no precedent for this specific
lawsuit, the rights of the House as an institution to litigate to protect its constitutional role has
been recognized in other contexts in the 20th century and its institutional standing was most
specifically foreseen, if not decided, in Raines, 521 U.S. at 829-30 and Arizona Legislature, 135
S. Ct. at 2664-65.
41

eloquence, Justice Scalia’s opinion remains a dissent joined by only two other Justices. It does
not convince the Court to dismiss this case.
The Court concludes that prudential considerations do not counsel avoidance of
this dispute. The Court is familiar with the standards for constitutional review of Executive
actions, and the mere fact that the House of Representatives is the plaintiff does not turn this suit
into a non-justiciable “political” dispute. See Powell, 395 U.S. at 549 (“Our system of
government requires that federal courts on occasion interpret the Constitution at variance with
the construction given the document by another branch. The alleged conflict that such an
adjudication may cause cannot justify the courts’ avoiding their constitutional responsibility.”)
(collecting cases). Despite its potential political ramifications, this suit remains a plain dispute
over a constitutional command, of which the Judiciary has long been the ultimate interpreter.
See Marbury, 5 U.S. (1 Cranch) 137.
The Court is also assured that this decision will open no floodgates, as it is
inherently limited by the extraordinary facts of which it was born. The Secretaries note that this
case is a “novel tactic” by the House and “entirely without precedent.” Mem. at 2, 25. The
House agrees that this “case is the result of an historic vote by plaintiff House of
Representatives.” Opp’n at 1. The rarity of these circumstances itself militates against
dismissing the case as non-justiciable. See Windsor, 133 S. Ct. at 2689 (“The integrity of the
political process would be at risk if difficult constitutional issues were simply referred to the
Court as a routine exercise. But this case is not routine.”).
IV. CONCLUSION
The House of Representatives has standing to pursue its allegations that the
Secretaries of Health and Human Services and of the Treasury violated Article I, § 9, cl. 7 of the

42

Constitution when they spent public monies that were not appropriated by the Congress. The
Secretaries hotly dispute that any violation has occurred, maintaining that the Section 1402 “cost
sharing reduction payments are being made as part of a mandatory payment program that
Congress has fully appropriated.” Mem. at 6 (citing 42 U.S.C. § 18082). The Court stresses that
the merits have not been briefed or decided; only the question of standing has been determined.
The Secretaries’ motion to dismiss, Dkt. 20, will be granted in part and denied in
part. The following Counts of the Complaint will be dismissed: II, III, IV, V, in part, VI, VII,
and VIII. Count I remains, as does Count V (to the extent predicated on a constitutional
violation). Furthermore, the House’s motion to strike, Dkt. 38, will be denied. The parties will
be directed to meet, confer, and file a proposed schedule for briefing dispositive motions.
A memorializing Order accompanies this Opinion.

Date: September 9, 2015
/s/
ROSEMARY M. COLLYER
United States District Judge

43