An immediate appeal in House v. Burwell?

by Nicholas Bagley — Tuesday, Sept. 22, 2015

The Obama administration has filed a motion in House v. Burwell asking the district court for permission to take an immediate appeal of its decision allowing the case to proceed. Among other things, the administration argues that allowing the House to sue over an alleged violation of the Appropriations Clause is “a momentous step” that threatens to insert the federal courts into disputes that the political branches hahttp:// historically worked out for themselves.

In its brief, the administration expands on an argument I made when the district court issued its decision: that it opens the door to suits over all sorts of alleged infringements of Congress’s constitutional authorities. As the government explains in its filing:

[I]t is difficult to see how the logic of this Court’s ruling could be cabined in a principled manner to cover only alleged violations of the Appropriations Clause. … [N]umerous constitutional provisions make specified action by one or both Houses of Congress a precondition to particular actions by the Executive or by others. For example, the House, Senate, or Congress could rely on this Court’s reasoning to ask the Judiciary to adjudicate

a claim that the President has appointed a judge or other federal officer without the advice and consent of the Senate, in violation of Article II, Section 2, Clause 2;

a claim that the President has made a treaty without the “Advice and Consent of the Senate” required under Article II, Section 2, Clause 2;

a claim that the President has usurped Congress’s authority to declare war under Article I, Section 8, Clause 11 (or any of Congress’s other Article I authorities);

a claim that one House of Congress had adjourned for more than three days without the consent of the other, in violation of Article I, Section 5, Clause 4;

a claim that a federal officer had accepted a “present, Emolument, Office, or Title “from a foreign power without the consent of Congress in violation of Article I, Section 9, Clause 8;

a claim that a State had imposed a duty on imports or exports without the consent of Congress, in violation of Article I, Section 10, Clause 2; or

a claim that a State had entered into a compact with another State without the consent of Congress, in violation of Article I, Section 10, Clause 3.

Yet disputes under these provisions of the Constitution have never been resolved in suits by Congress or one of its Houses.

I’ve been noodling over the district court’s standing decision for more than a week now, and I think the administration has this exactly right. If a violation of the Appropriations Clause is enough to ground standing, then it’s very hard—maybe impossible—to see why violations of these other clauses of the Constitution shouldn’t also ground standing.

Yet none of these provisions has ever been litigated at Congress’s behest—much lest at the behest of one house of Congress. That’s not because Congress and the president have always seen eye to eye about whether executive action transgresses constitutional bounds. Instead, it’s because no one thought these were the sorts of disputes you could resolve in court.

The court’s unprecedented decision thus has the potential to reshape durable conventions governing the separation of powers. If the D.C. Circuit or the Supreme Court wants to open the floodgates to congressional lawsuits, let it be on their heads. For now, the responsible course of action is to allow an immediate appeal.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Nicholas Bagley

Nicholas Bagley is a Professor of Law at the University of Michigan Law School.

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