House of Representatives v. Burwell is Not Justiciable

Constitutional Law, Spring 2015

Posted by: Michael Brandon, Taylor Burgoon,  Andrea Burnett, Matt Bury, Brenna Carpenter, Kaitlyn Carr, & Ryan Cho

February 27, 2015


On November 21, 2014 the U.S. House of Representatives, as a body, brought suit in the United States District Court for the District of Columbia against several federal agencies and their officials for allegedly overstepping their constitutional boundaries. The complaint contained two main allegations. First, that these executive branch agencies and officials used federal funds, without getting the necessary appropriations from Congress, to subsidize health insurance for people securing insurance through federal, as opposed to state, health care exchanges. This was not authorized by the Affordable Care Act, and most importantly, the executive branch does not have the constitutional power to use federal funds unless the Legislature enacts a law appropriating those funds. The second claim against the defendants was for amending provisions of the Affordable Care Act. Amending legislation is a specific power that the Constitution, Article I, Section 7, grants to the Legislature. Overall, the House of Representatives wants the court to declare these acts unconstitutional and enjoin the defendants from using any more funding without the proper legislative appropriations.

Under Article III, Section 2 of the Constitution, courts are only given power to hear and decide on issues from a case or controversy that arise under the Constitution. In the United States we have an adversarial system, which means the courts give judgments when there is a dispute between two adverse parties. Before a court can hear a case it must decide if it is justiciable. Justiciable means that (1) it is a case or controversy, not an advisory opinion, (2) that the party litigating has standing, (3) that the litigation is not asking the court to decide a political question, and (4) that the issue is not premature or moot.

Specifically for this litigation, it must be determined (1) whether the Plaintiffs have standing, and (2) whether the case is asking the court to decide a political question. We have concluded that there is standing because the House has suffered an actual injury that is connected to the defendants’ actions and can likely be redressed by a court ruling in the House’s favor. However, we have concluded that the litigation is not justiciable because the case presents a nonjusticiable political question.


To determine whether or not a case has standing the courts use a three-part element test; each element must be met in order for there to be standing. First, the plaintiff must have suffered an injury-in-fact. The plaintiff has to show that a legally protected interest was violated and that the injury is actual and concrete, as opposed to hypothetical or speculative. Second, there must be a causal connection between the defendant’s actions and the alleged injury. Third, it must be likely, not merely speculative, that a favorable ruling by the court would redress the injury. The party that is invoking the federal jurisdiction, in this case the House, has the burden to prove each of these elements.

The standing doctrine was created to ensure that parties can only sue if there is a source of law that gives them a cause of action. People cannot merely sue because they are angry or dissatisfied. The plaintiff’s complaint must fall within the zone of interests protected by the law invoked (Allen v. Wright). In this case, the Constitution provides the basis for a cause of action. The Constitution’s primary function is to lay out the powers and restrictions to each of the three branches of government. Article 1 enumerates the powers and limitations of Congress. The power to appropriate federal funds and the power to amend legislation are vested in Congress, not the executive branch. Thus, the House of Representative’s complaint that executive officials have acted outside of their constitutional limits and infringed on legislative power falls within the zone of interests protected by the Constitution.



The complaint demonstrates an injury-in-fact to the House of Representatives as a legislative body. In order to qualify as an injury-in-fact, the injury must satisfy both Article III of the Constitution and meet certain prudential concerns the court has voluntarily adopted. The injury-in-fact requirement is not particularly strict, as expressed by the Supreme Court in Association of Data Processing Services Organizations v. Camp. The expectations are flexible and injuries-in-fact can include a broad range of types of harm.

However, there are a few stipulations. First, the injury must be personal; the injury must have been suffered by the plaintiff themselves, not by a third party. Second, the injury must be particular to the plaintiff and not so widely experienced by the American public that the political, rather than judicial, process would be a better way to seek relief. Third, the injury must also be concrete, not abstract or hypothetical.

The House’s injury satisfies these stipulations and thus constitutes an injury-in-fact. The House’s injury is personal. The House is alleging that it itself has suffered an injury and is not bringing the lawsuit on behalf of a third party. The executive branch is exceeding its authority granted by Article I of the Constitution by substituting its own actions for laws enacted by Congress. Executive branch officials have paid insurance companies to carry out a program supported by the Affordable Care Act (ACA), despite the fact that Congress has not appropriated any funds toward the program. The executive branch has also issued a regulation that effectively amends the ACA. The House argues that these actions have injured it as a body by usurping the legislative powers granted to it by Article I of the Constitution. This demonstrates that the injury is not only personal, it is particular to the House of Representatives as a congressional body and not a harm widely diffused among the American public.

Finally, the injury is actual and concrete, not abstract or hypothetical. Addressing the case of Allen v. Wright, Justice O’Connor wrote that while the injury must be “distinct and palpable,” in essence “the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” In addressing how the injury should not be abstract or hypothetical, O’Connor asked, “Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable?”

The House’s injury satisfies these inquiries. In direct violation of the separation of powers, on which “the whole American fabric has been erected” (Marbury v. Madison), the executive branch has assumed for itself powers the Constitution vests in Congress alone. This undermines the legislative branch’s authority and disrupts the balanced relationship between the different branches of the federal government intended by the drafters of the Constitution. While this injury could arguably be called abstract, it has very concrete, distinct, and palpable repercussions on the House of Representatives’ ability to enact laws that are then carried out by the executive branch. Such an injury is not too abstract to be judicially cognizable.

In the past, courts have held that individual legislators do not have standing to sue over their political powers because the plaintiffs could not allege direct personal injury. For example, in Goldwater v. Carter, individual senators tried suing the Executive, President Carter, for nullifying a treaty without the Senate’s approval, thus violating the Constitution. Similarly, in Raines v. Byrd, six members of Congress who had voted against the Line Item Veto Act, which Congress subsequently approved, tried to sue the executive branch. The Supreme Court found that they did not have standing because there was no direct personal injury and their alleged loss of power as members of Congress was too abstract.

The plaintiffs in Goldwater and Raines were individual members of Congress, not the consensual voice of their respective houses. This contrasts Committee on the Judiciary, U.S. House of Representatives v. Miers, where a federal district court held that a committee authorized by the House had standing to ask the court to enforce a subpoena with which members of the executive branch had refused to comply. The court found that the House had suffered an injury-in-fact due to “the institutional diminution of its subpoena power.” Like in Miers, the present lawsuit has been authorized and supported by the House of Representatives, not merely the expression of political frustration by a handful of individual members of Congress. Also like in Miers, the House has suffered a diminution of its powers as a result of the executive branch’s disregard for the separation of powers. Accordingly, the House’s injury satisfies the constitutional and prudential requirements of qualifying as an injury-in-fact, and it is similar to institutional injuries that have been found to be judicially cognizable in the past. Thus, the House has suffered an injury-in-fact.


The second element necessary to confer legal standing is a causal connection between the allegedly unlawful conduct and the injury suffered. This causal link must be such that the harm is fairly traceable to the defendant’s conduct, and may not be merely speculative, abstract, or too attenuated (Allen v. Wright). This requirement is closely related to the third element of standing, that the injury is likely to be redressed by a favorable decision. Together, these two factors are determinant of the “nexus” requirement for standing. Neither the causal link between injury and conduct, nor the court’s ability to redress the complaint may be speculative in order for there to be grounds for legal standing.

The House of Representatives is alleging that it suffered an injury-in-fact when the executive branch usurped its legislative powers by expending funds not appropriated by Congress and when it unilaterally amended the ACA employer mandate and deadline provisions. The causation element is met here because, but for the executive branch taking these actions, the House’s constitutional powers would not have been infringed upon. In addition, the cause of this infringement is neither speculative nor attenuated, which can be seen by looking directly to the Constitution. Article I, Section 1 states that, “[a]ll Legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” In addition, Article I, Section 7, clause 2 states, “[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes law, be presented to the President of the United States . . .” Furthermore, Article I, Section 9, clause 7 states, “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . .” In summary, Article I vests legislative power solely in Congress. Included in this is the power to appropriate public funds. Here, the House’s powers vested by the Constitution are clearly being infringed on and disregarded through the executive branch’s funding, and unilateral amending, of the ACA without congressional approval. Thus, there is an established causal connection between the executive branch’s conduct and the House’s injury.


To have legal standing, it must be likely, as opposed to merely speculative, that a positive ruling by the court would provide relief for the alleged harm. In his dissenting opinion to Allen v. Wright, Justice Stevens sheds light on how to approach standing and the remedy element:

The strength of the plaintiff’s interest in the outcome has nothing to do with whether the relief it seeks would intrude upon the prerogatives of other branches of government; the possibility that the relief might be inappropriate does not lessen the plaintiff’s stake in obtaining that relief. If a plaintiff presents a nonjusticiable issue, or seeks relief that a court may not award, then its complaint should be dismissed for those reasons, and not because the plaintiff lacks a stake in obtaining that relief and hence has no standing.

In this case, the House is requesting that the court grant it declaratory and injunctive relief. In following Justice Steven’s articulation of standing and remedy analysis, only the House’s stake and redressability need be analyzed here. The House has a definite stake in the outcome. It has suffered injury-in-fact that is fairly traceable to the executive branch’s conduct. If the court granted the declaration and injunction the House requests, the injury suffered would likely be redressed. Declaring the executive branch’s actions unlawful under the Constitution and issuing an injunction would likely induce the executive branch to discontinue its current actions, which exceed its enumerated powers and infringe on the prerogatives of the House and legislative body as a whole. Since the determination of legal standing does not rest on whether the requested relief is appropriate for the judiciary to issue, we find that there is legal standing here because all three of the necessary elements are met.


Although the facts of this case establish an infringement on the House’s constitutional authority as a result of the executive branch’s actions, the court is an improper venue to seek relief. This case is nonjusticiable under the political question doctrine.

The political question doctrine is rooted in the theory of separation of powers. In Federalist No. 49, James Madison wrote that none of the coordinate branches of government could “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” The idea is that one branch should not settle the disputes that arise between the other two branches. Here, the judiciary should not resolve this issue between the executive and the legislative branches, it should instead be resolved by the political process.

Chief Justice John Marshall recognized this boundary when he stated in his famous opinion in Marbury v. Madison that where “the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that [his] acts are only politically examinable.” Later, in the seminal case Baker v. Carr, the Supreme Court more fully defined the political question doctrine by recognizing six situations, any one of which could render an issue a non-justiciable political question:

  1. A “textually demonstrable constitutional commitment of the issue to a coordinate political department; or”
  2. A “lack of judicially discoverable and manageable standards for resolving it; or”
  3. The “impossibility for a court’s independent resolution without expressing a lack of respect for a coordinate branch of the government; or”
  4. The “impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court; or”
  5. An “unusual need for unquestioning adherence to a political decision already made; or”
  6. The “potentiality of embarrassment from multifarious pronouncements by various departments on one question.”


The Court did not, however, explicitly indicate how these factors should be applied in future cases, nor did it give a relative weight of each factor. In Vieth v. Jubelirer, the Court did explain that they “are probably listed in descending order of both importance and clarity.” Consequently, the first factor is the most important in identifying the current suit as presenting a political question.

The House’s complaint presents a nonjusticiable political question because the Constitution commits the issue of the proper execution of the laws to coordinate political departments. Article II, Section 3 of the Constitution charges the Executive to “take Care that the Laws be faithfully executed.” Historically, the question of how much discretion the executive branch has when executing the law has been left to the legislative and executive branches. While the Executive is entrusted to“faithfully execute” the laws, the Constitution also affords the legislative branch several checks on the Executive in the event that it thinks the executive has failed to uphold its constitutional duty. Article I, Section 8 empowers Congress to amend or repeal the Affordable Care Act if it is not satisfied with how the President is executing the law. Alternatively, the House Judiciary Committee in the House of Representatives can decide to proceed with impeachment. If any of the Articles of Impeachment are approved, Article I, Section 3 stipulates that the Senate will try the President for impeachment. Under Article II Section 4, the President may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” The text of the Constitution clearly commits the issue at hand to the coordinate political branches, and therefore the judiciary will refuse to hear the case on the basis that it presents a nonjusticiable political question.

In Nixon v. United States, the Supreme Court applied this first factor of the political question doctrine when a United States federal judge was convicted of perjury, but refused to resign from office. After the Senate voted to remove him from office, Nixon filed suit alleging that the Senate proceedings had not fulfilled the constitutional requirement for “trying” as it is described in Article 1, Section 3. In this case, the Court reasoned that the Senate has sole control over the rules and procedures for holding an impeachment trial, and so the matter was nonjusticiable because the issue was constitutionally committed to a coordinate political department. Furthermore, the Court stated that even if the question were not constitutionally committed to a coordinate branch, it posed too great a difficulty to the Court for fashioning a relief.

Based on the Court’s reasoning in Nixon, the court in the present case will find that the President’s discretion in faithfully executing the laws is textually committed to coordinate political departments. Moreover, if the court were to decide this case in favor of the House, the question of redressability remains. Although a court ordered injunction would remedy the alleged injury, the political nature of this case contributes to the possibility that the President may simply ignore the court. Therefore, Congress would have to resort to its administrative remedy of impeachment.

Interestingly, the Court in Nixon did leave the door open for the courts to possibly intervene in impeachment proceedings under more unusual circumstances. In a concurring opinion, Justice Souter wrote that, were the Senate to seriously threaten the integrity of its conviction results on the basis of “a coin-toss . . . . [then] judicial interference might well be appropriate.” Thus, perhaps in the present case the court conceivably may find that the Executive’s discretion in his implementation of the ACA has been so egregious that it warrants judicial intervention.

This result, however, appears unlikely as at least one Supreme Court Justice has already made his stance known on the issue. In the Supreme Court case of United States v. Windsor, the Court spoke on the issue of justiciability after the Justice Department refused to defend the constitutionality of the Defense of Marriage Act (DOMA). Justice Scalia wrote in his dissenting opinion that Congress should not attempt to invoke the judiciary to coerce the President to satisfactorily enforce an act of Congress:

But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . a direct confrontation with the President.

Ultimately, as noted by Obama’s assistant attorney general, Joyce Branda, “Fundamental principles of the separation of powers dictate that legislators should pursue their legislative options, rather than using the courts to vent purely political grievances.” (Obama lawyers seek dismissal of House Republicans’ Obamacare lawsuit, The Washington Times). Ultimately, this case is not ready for judicial review because the House has not taken action asserting its constitutional authority. Both the Legislature and the Executive have non-judicial methods of working out their differences. If Congress chooses not to confront the Executive, that does not make it the judiciary’s job to do so for them. Therefore, based upon these considerations, it appears likely that the courts will find the question of the President’s faithfulness in executing the ACA to be a non-justiciable political question.


The court will consider the House’s politically-charged motives for filing a complaint before deciding the case. The court knows that the House of Representatives has options outside of court, and members of the court are going to question why the House is choosing not to pursue those options. Historically, it has been uncertain whether the court will consider congressional motive when deciding cases, as there have been many cases where the Supreme Court has stated that they would not look at motive, but their analysis clearly does. Examples are Ex parte McCardle United States v. Klein , and Hammer v. Dagenhart.  These cases show that the court has considered congressional motive. Furthermore, the deciding opinions in these cases are influenced by formalism, which members of the current Court, such as Justice Kennedy and Justice Scalia, have been known to embrace. Historical background is not the only thing that should be considered. In order to predict if the court will consider congressional motive, the legal jurisprudential era in which the current court exists should be considered. The current court exists in an era of post-realist legal theories; critical legal theories that embrace the social sciences and policy arguments. A strong jurisprudential foundation in considering policy could be the gateway needed for the court to openly take into account congressional motive. The court exists in a legal theorist era where it makes sense for the court to consider congressional motive. Here are some excerpts from this legal era that show the court will consider congressional motive:

United States v. Windsor  (2013) The majority opinion stated that  “[i]n determining whether a law is motivated by an improper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration.” This shows that the Court will carefully consider the motivation behind a law if they believe it is motivated by bad faith. The Court is willing to consider motive.

Raines v. Byrd (1997) The concurring opinion stated that “[d]eciding a suit to vindicate an interest outside the Government raises no specter of judicial readiness to enlist on one side of a political tug-of-war, since “the propriety of such action by a federal court has been recognized since Marbury v. Madison.” This shows that Court has no interest in hearing a politically motivated lawsuit. If the Court believes the motive to be political, the Court is likely to be reluctant to decide the case.

Valley Forge Christian College v. Americans United for Separation of Church and State, Inc (1982):  The majority stated “It tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.”  This shows that the Court is not going to look fondly on a case that is motivated by a political debate. Once again if the Court believes the case to be motivated politically, members of the Court are reluctant to become involved.

It is reasonable to conclude that the court will consider the motives behind the House of Representatives’ lawsuit against the Executive. The motivation behind the lawsuit is political. Consider the current political environment- it is not hard to see how the struggle for power between the political parties brought about this lawsuit.

War of Umbrage

House Republicans have tried an upwards of 50 times to repeal the Affordable Care, and they are scrapping for ways to be successful. When the House of Representatives voted for the bill titled; “Providing for authority to initiate litigation for actions by the President or other executive branch officials inconsistent with their duties under the Constitution of the United States,” all 225 voters in its favor were members of the Republican party, with only five members of the Republican Party aligned with members of the Democratic Party to vote against it. The Republicans had, and continue to have, a majority in the House of Representatives. The majority allowed the House Republicans to pass the bill they wanted to bring the current suit forward. When House members are more aligned with their parties than anything else, it is not hard for the House Republicans to get a desirable bill in through a simple majority. Taking into account how this issue is a power struggle between the political parties also helps to explain why the House Republicans haven’t pursued other options, such as impeachment.

If the proper forum is impeachment then why isn’t the House starting the impeachment process?  Speaker of the House, John Boehner, has publically stated on multiple occasions that the House does not plan on pursuing impeachment. The House Republicans know that even though they could pass the House of Representatives’ requirements for impeachment, it will likely fail when the process moves to the Senate. Recall from the impeachment process that after the Senate holds a trial, a two-thirds vote of the Senate is required in order to convict the President and remove him from office. Even though a Republican majority controls the Senate, it does not hold a two-thirds majority. Therefore, when we take into account the current political climate, it is a pretty safe to assume that all the Democrats in the Senate will vote to acquit the President and the Republican party will be unable to conjure up the necessary two-thirds of the Senate.

Lastly, House Republicans have not had much luck after impeaching a President. When the House impeached President Clinton, the Senate later acquitted him of all charges, and it did more harm than good for the House Republicans. During President Clinton’s impeachment his approval rating went up to an all time high of 73%, while the Republican Party’s approval rate dropped over ten points to less than 34%.  The House Republicans were aware that at the time the complaint in this case was filed that 65% of the voting population did not think Obama should be impeached and removed from office.

Thus, this lawsuit does not appear to be about the Constitution; it appears to be about political parties fighting over power. The House of Representatives does have alternative options, but they are choosing not to pursue them because it will likely be unfavorable to the House Republicans. The House Republicans are turning to the courts because the courts are a public forum that could possibly give them the result they want. It’s not because there are no other options, but because there are no other options that are as potentially favorable to the Republican party.


The court will likely dismiss the case because the complaint improperly asks the court to decide on a political question. Even though the House of Representatives has legal standing, the Constitution commits the issue to a coordinate political department. As evidenced by the self-imposed political question doctrine, courts avoid getting involved with disputes between two co-equal branches, especially when those branches have other available mechanisms to protect their interests, such as impeachment.

House of Representatives v. Burwell is Not Justiciable

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