[Josh Blackman] The origin of House of Representatives v. Burwell

Then-House Speaker John A. Boehner (R-Ohio ) in Washington on Oct. 27, 2015. ( Andrew Harrer/Bloomberg)

In House of Representatives v. Burwell, the House challenged the legality of subsidies the Obama administration paid to insurers. Judge Rosemary M. 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 U.S. Court of Appeals for the D.C. Circuit. Though the litigation has had 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 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 Hostetler were advising the House on how to take legal action.

With their counsel, on June 25, 2014, then-Speaker John A. Boehner (R) 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 nearly 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, 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 (Cslif.) criticized the case as a waste of “time and taxpayer dollars.” Rep. Louise M. Slaughter (D-N.Y.) 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 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