What The House ObamaCare Lawsuit And 'King v. Burwell' Have In Common

Today, the House of Representatives filed a lawsuit - /House v. Burwell /--- that asks a federal court to invalidate two actions by President Obama that it claims violate the Patient Protection and Affordable Care Act (PPACA or ACA), and encroach on powers the Constitution reserves to the legislative branch. There are important differences between this lawsuit and /King v. Burwell/ (which the Supreme Court has agreed to hear this term), mostly with regard to standing and the type of claims the plaintiffs are making. But both lawsuits claim much of the billions of dollars in taxpayer subsidies the Obama administration is issuing to private insurance companies via the PPACA's health-insurance "Exchanges" was never approved by Congress, and is therefore illegal. Overall, /King/ would block more subsidies than /House/ does, though /House/ would block some subsidies /King/ does not.

The PPACA authorizes the executive branch to make "premium assistance tax credit" payments and "cost-sharing subsidy" payments directly to insurance companies on behalf of eligible taxpayers who enroll in health coverage "through an Exchange established by the State." The Obama administration is issuing both types of subsidy in all 50 states, even though 36 states refused or otherwise failed to establish Exchanges and instead have "fallback" Exchanges established by the federal government. Since the mere availability of those subsidies triggers penalties against certain employers and individuals, the Obama administration's decision to issue those subsidies in federal-Exchange states unlawfully subjects more than 57 million employers and individuals to those taxes.

The /King /plaintiffs live in Virginia, which has a federal Exchange. They are asking the Supreme Court to put an end to roughly $9 billion in subsidies the administration is issuing this year in the 36 states with federal Exchanges. Over the next 10 years, those subsidies would total about $650 billion.

/House /claims the president cannot issue "cost-sharing subsidies" in /any/ state, because Congress never appropriated funds for those subsidies. Spending federal dollars not pursuant to a congressional appropriation is a federal crime . It would block $3 billion in subsidies this year, and $175 billion over the next 10 years. (The House also claims the president violated the law by unilaterally delaying the obligations the PPACA imposes on employers by delaying the onset of the employer mandate past the date specified in the statute.)

Thus, both /King /and /House/ would block the $2 billion ($126b/10yrs) in "cost-sharing subsidies" the administration is issuing in the 36 federal-Exchange states. But while /King /would also block the $7 billion ($523b/10yrs) in "premium-assistance tax credits" the administration is issuing in those 36 states, /House/ would block the $1 billion ($49b/10yrs) in "cost-sharing subsidies" the administration is issuing in the 14 states that established Exchanges. Put differently, /King /would knock out two legs of the PPACA's three-legged stool in 36 states. /House /would at least shorten one of those legs in all 50 states.

It bears mentioning that both /King /and /House /would make the PPACA's costs more transparent. So if you want to know whether Jonathan Gruber was right that he and other architects of the law crafted it to create and seek to maintain its "lack of transparency," look no further than their hostility to these lawsuits.

xoviat xo Can you discuss the issue of standing with respect to the house lawsuit? Michael F. Cannon, ContributorHere are the contours of that issue, as laid out by my coauthor (on Halbig, King, etc.) Jonathan Adler: http://www.washingtonpost.com/news/volokh-conspirac [...]