The White House isn’t likely to wait long to challenge Wednesday’s ruling allowing House Republicans to sue the Obama administration for spending federal funds on the Affordable Care Act‘s cost-sharing assistance.
The administration is expected to seek what’s called an interlocutory appeal, which would allow a higher court to consider the issue of whether the House has standing to sue before the lower court addresses the merits of the case.
It’s a somewhat rare legal move, but some legal experts say the case might just be unusual enough to warrant it.
“If there’s any case that warrants certification it would seem to be this one,” said Nicholas Bagley, a University of Michigan law professor and supporter of the ACA. “The question is certainly one on which reasonable minds can differ.”
On Wednesday, U.S. District Judge Rosemary Collyer decided House Republicans have standing to sue over their allegation that the administration is illegally spending money that Congress never appropriated for the law’s cost-sharing provisions. Those provisions include reduced deductibles, copays and coinsurance for many beneficiaries depending on income.
The House had to prove it was injured by the administration’s actions in order to gain standing. Collyer, who was nominated by President George W. Bush, wrote that the House cannot fulfill its constitutional role if it refuses to fund something and then the president funds it anyway.
The Obama administration had argued that the House shouldn’t have been granted standing because the fight is essentially a political one. It had also argued in court documents that, “A generalized grievance—a plaintiff’s mere interest in vindicating its views regarding the proper implementation of the law—cannot suffice” as an injury.
U.S. Justice Department spokesman Patrick Rodenbush said the Justice Department will appeal the court’s decision, but he did not immediately respond to a question Thursday about whether it will do so now or wait until the case is resolved at the District Court level.
In order to get an interlocutory appeal, Collyer would have to approve the government’s request for one, Bagley said. The court of appeals would then also have to agree to hear the question.
Under federal law, such appeals are appropriate when an order involves “a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.”
“If any case meets that standard, and it’s a high standard, it would seem to be this one,” Bagley said.
Josh Blackman, an assistant professor at South Texas College of Law, agrees that the White House’s next move will likely be to seek such an appeal. Blackman filed an amicus brief on behalf of the libertarian Cato Institute in the recent Supreme Court case over the Affordable Care Act supporting the challengers.
“In this case, the government’s best defense is standing, so they’re going to appeal as soon as they can,” Blackman said. “There’s no point in allowing this to go through the complicated constitutional question if the question of standing is not resolved.”
Many legal observers had speculated that it would be harder for the House to establish standing in the case than to actually win it.
James Blumstein, a professor at Vanderbilt Law School who’s been critical of parts of the ACA, said it makes sense that the Obama administration would want to appeal the standing decision before a final decision is reached at the District Court level.
“These should not be granted too easily,” Blumstein said. “On the other hand, you could say this is a pivotal issue.” He noted that such an appeal would slow the process.
Jonathan Adler, a law professor at Case Western University School of Law and a key influence behind the recent Supreme Court challenge to the ACA, wrote in the Washington Post Thursday that he also thinks the case is headed toward an interlocutory appeal.
“House v. Burwell presents a novel and largely unprecedented standing claim, arguably based upon novel and somewhat unprecedented assertions of executive authority in domestic policy,” Adler wrote. “As such, it would be good to get this claim ‘squared away’ sooner rather than later.”
Health law experts have differing opinions as to how large a threat the case poses to the ACA itself. Some say a win for House Republicans could make insurance unaffordable for many Americans. Others argue cost-sharing reductions are legally required regardless of whether the government reimburses insurers for them.
About 56% of Americans who receive coverage through the ACA’s insurance exchanges—about 5.6 million people—get cost-sharing assistance that lowers the amounts they pay out-of-pocket for deductibles, coinsurance and copayments, according to the CMS.