Snell & Wilmer
Legal Alert
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September 14, 2015
First, Arizona Legislature v. AIRC, Now the ACA Subsidies: Standing for Political Institutions
by Sara J. Agne
Citing what some might call a quirk of the U.S. Supreme Court’s (SCOTUS) recent opinion in Arizona Legislature v. Arizona Independent Redistricting Commission (AIRC), U.S. District Court Judge for the District of Columbia Rosemary M. Collyer ruled last week that House lawmakers have standing to sue the executive branch over funding of Affordable Care Act (ACA) subsidies.
You may recall from SCOTUS’ June 29, 2015, Arizona Legislature v. AIRC, that the high court held in a sharply divided (5-4) decision that (1) the Arizona Legislature had standing to sue and (2) that the Elections Clause and 2 U.S.C. § 2a(c) permitted Arizona’s use of the AIRC to draw congressional districts. The institutional body could sue on the question of whether the voters’ initiative Proposition 106 stripped the Legislature of its claimed constitutional prerogative to engage in redistricting, SCOTUS held.
In bringing the action claiming that its injury would be remedied by an order enjoining Proposition 106’s enforcement, the Arizona Legislature showed standing—that is an actual injury, concrete and particularized, fairly traceable to the challenged Proposition and redressable by a favorable judicial ruling. SCOTUS found that Proposition 106, together with the Arizona Constitution’s ban on legislative undermining of the purpose of initiatives, would completely nullify present or future votes by the Legislature to try to redistrict.
The finding of standing may be called quirky because, ultimately, the divided SCOTUS found that—while Arizona lawmakers had standing to complain about whether redistricting authority could be delegated by the people to an independent commission—it would be perverse to interpret the Elections Clause to exclude lawmaking by the people. The lawmakers’ injury would not be redressed in the way they desired.
It will be a while before we get to learn in full what this means for the ACA. What we know now is that U.S. House lawmakers have standing to complain that they were injured by the executive branch’s channeling of funds to ACA subsidies without a proper congressional appropriation. Judge Collyer cited Arizona Legislature v. AIRC and limited her decision to standing, explaining that the merits would be determined later. Still, legal scholars expect her ruling to be immediately appealed to the D.C. Circuit Court of Appeals.
It remains to be seen whether Judge Collyer’s decision in House v. Burwell is part of a trend toward finding standing on novel sets of political facts and just how far the House might get with its separation-of-powers challenge to the ACA subsidy money it claims was spent without congressional appropriation.

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