The Origin of House of Representatives v. Burwell

joshblackman.com ^ | 9/23/2016 | Josh Blackman

[Elderberry]

In House of Representatives v. Burwell, the House challenged the legality of subsidies the Obama administration paid to insurers. Judge Rosemary Collyer ruled that the House as an institution had standing, and that the payments were made without an appropriation. Currently, the case is on appeal to the D.C. Circuit. While the litigation has had an unexpected success in the courts, its origin was rocky. As I discuss in Chapter 23 of Unraveled, one of the most difficult aspects the case was finding an attorney to take it–or more precisely, an attorney whose law firm would allow him keep the case.

In 2014, David Rivkin of the Baker Hostetler law firm and Florida International University Law Professor Elizabeth Price Foley wrote a series of articles, sketching a theory of why the House of Representatives would have standing to challenge the President’s implementation of the Affordable Care Act. At the time, their writings focused on the White House’s delay of the employer mandate. Behind the scenes, Rivkin, Foley, and their colleagues at Baker were advising the House of Representatives on how to take legal action.

With their counsel, on June 25, 2014, Speaker John Boehner circulated a memorandum to the House GOP caucus. The Ohioan wrote that “for the integrity of our laws and the sake of our country’s future, the House must act now” to stop the president’s illegal executive actions. In July, Boehner would bring legislation to the floor to authorize the House General Counsel “to file suit in the coming weeks in an effort to compel the president to follow his oath of office and faithfully execute the laws of our country.” On July 30, the House voted along straight party lines – 225 to 201 – to authorize the litigation. (One Republican voted nay.) House Resolution 676 was framed very broadly: the lawsuit could “seek any appropriate relief regarding the failure” of all executive-branch officials – including the president himself – “to act in a manner consistent with that official’s duties under the Constitution and laws of the United States with respect to implementation” of the ACA.

After the House authorized the suit, David Rivkin and Baker Hostetler signed a contract to litigate the case, which was capped at $350,000. The reaction from Democrats was swift. The White House called the suit “unfortunate.” Minority Leader Nancy Pelosi criticized the case as a waste of “time and taxpayer dollars.” Representative Louise M. Slaughter (D-NY) called the suit a “sorry spectacle of legislative malpractice” and “political theater.” Even many conservatives critiqued the decision. Talk Radio Host Mark Levin, who served in the Reagan administration, called the litigation a “foolish move.”

Soon, the law firm was ridiculed on late night television. Jimmy Fallon aired a fake infomercial for Baker Hostetler on the Tonight Show. The parody featured an ambulance-chasing lawyer pitching his firm. “At Baker Hostetler, we specialize in one thing,” the actor said, “suing the president. For instance, have you ever been forced to pass Obamacare, even though you didn’t like it? We can help you waste thousands of dollars in taxpayer money to fight for what you sort of believe in.”

The New York Times reported that Rivkin was “under pressure after facing criticism” from his colleagues “that he had taken on an overly partisan lawsuit.” Partners at his firm, the Times wrote, “feared the case against Mr. Obama could drive off potential clients and hurt Baker Hostetler’s credibility.” I learned from an attorney involved in the matter that when the contract was initially signed, a conflict check was performed, and the firm “backed the case.” However, within a week after the contract was announced, partners at the firm started to receive urgent calls from general counsels of clients in the health care industry. Baker Hostetler represents many hospital management firms and insurance companies, particularly at its office in Columbus, Ohio. All of the calls from the general counsels had the “identical” message: they were under pressure, and could not continue to associate with Baker Hostetler if it litigated the House’s lawsuit.

The attorney I spoke with said it was “suspicious” that they all gave the “same” message very shortly after the contract was announced. There was a concern – confirmed by at least one general counsel – that the Obama administration was quietly pushing health care companies to drop Baker Hostetler. After these calls came in, Rivkin’s colleagues told him, “you can’t do this.” The contract with the House prohibited partners at Rivkin’s firm from any “lobbying or advocacy” concerning the ACA. Many of Rivkin’s colleagues lobbied for health care reform. Although the House was willing to amend the contract to strike this provision, all of the parties agreed that this would be a valid basis to cancel the representation.

This withdrawal was particularly bittersweet for Rivkin. In 2010, he was the first attorney to represent Florida in its constitutional challenge to Obamacare. However, after Pam Bondi was elected as Attorney General of Florida, she opted to replace Rivkin with SCOTUS-superstar Paul Clement. Bondi wanted to hire someone who would argue at the Supreme Court, though she admitted it was an agonizing decision to switch horses in the middle of the race. In 2013, Rivkin told me that he understood the decision and took it graciously. It was a “typical Washington thing,” he said. In 2014, after he had to withdraw from the House’s case, Rivkin was angry at this political hardball that was completely beyond his control.

This is also not the first time the House Republicans have been in this sort of predicament. In 2011, the Obama administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act. The House of Representatives hired Paul Clement, then of the King & Spalding law firm, to take the case and litigate it all the way to the Supreme Court. Under pressure, Clement’s firm asked him to drop the case. Rather than quitting, Clement announced that he would resign from King & Spalding “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.”

[Elderberry]

Excerpted due to very long length. Much more at link.

[Thank You Rush]

Thanks for this. I bookmarked it to go back and read it when I can concentrate better on it. I had no idea this case was going on. They’ve kept us preoccupied with all their other shenanigans which is the idea, I guess. I just can’t believe all the **** we’ve had to put up with from this administration.

[NotQuiteCricket]

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[ptsal]

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