Obamacare is not out of the courts yet, though the Supreme Court's
King v. Burwell decision last month will whittle some of the
more than a dozen pending cases down by at least a few. At the moment, the most threatening case—at least in terms of potential to do damage—is pending now before the federal District of Columbia district court. In this challenge, House Republicans argue that the administration is spending money Congress did not appropriate for cost-sharing provisions in the law that include reduced deductibles, copays and coinsurance for qualifying enrollees.
Judge Rosemary Collyer is currently deliberating over House v. Burwell and whether to grant the administration's request that the case be dismissed because the House of Representatives doesn't have standing to sue the executive branch. Republicans, and their attorney Jonathon Turley, are taking heart from another recent SCOTUS decision—the Arizona redistricting case in which the court ruled against the legislature in its challenge of an independent redistricting commission which had been established by a state ballot initiative. What heartened Obamacare opponents was that the court granted the legislature standing to sue, saying that it had received an injury by having its power to legislate—to redistrict—usurped, just as the House argues in this challenge. But there's a big, glaring problem in that argument.
Tim Jost, a law professor at Washington and Lee University in Lexington, Va., and a proponent of the ACA, agreed that the Arizona ruling is relevant to the House case, but not in the way the House thinks it is. If anything, the ruling supports the administration's position that the House does not have standing, Jost said, pointing to a seemingly significant footnote in the Arizona opinion.
That footnote says the Arizona case "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-power concerns absent here."
Jost also pointed to dissents by Justices Antonin Scalia and Clarence Thomas saying they do not believe the Arizona Legislature should have been granted standing in the case.
In the oral arguments over the administration request that the case be dismissed, Collyer seemed pretty skeptical of the administration's arguments. If Collyer uses the Arizona case to justify deciding that the House can indeed sue the administration in this case, she'll be disregarding what the Supreme Court actually said in this issue. Supplemental arguments in the case were due last week, and the parties have until July 17 for their responses. After that, Collyer will make her ruling.