We will have to wait at least a bit longer—and perhaps indefinitely—to learn whether a striking ruling that members of Congress have standing to sue the executive branch over the funding of Affordable Care Act (ACA) subsidies will withstand the test of appellate review.

We previously told you about U.S. District Court Judge for the District of Columbia Rosemary M. Collyer’s standing ruling, which cited the U.S. Supreme Court opinion in Arizona Legislature v. Arizona Independent Redistricting Commission (AIRC), 135 S. Ct. 2652 (2015), and conducted an “especially rigorous” standing analysis. Judge Collyer previously found that the U.S. House of Representatives had standing to sue the executive branch over the funding of ACA subsidies.^[1]

Earlier this year, she then ruled on the merits of the case, finding the subsidies illegal because the section of the law containing them was not added to a pre-existing list of items permanently appropriated by Congress. Because the public monies were therefore spent without Congressional appropriation, they were unconstitutional, she ruled, and entered judgment in favor of the House.

The May 2016 district court opinion enjoined use of the unappropriated monies to fund reimbursements due insurers under the ACA, but Judge Collyer stayed that injunction pending appeal by either or both parties. The Obama administration appealed both the merits of the case and the standing ruling, but focused its opening brief mostly on standing, rather than on the statutory interpretation question.

Before its answering brief was due, the House moved to hold the case in abeyance until after the upcoming presidential inauguration, as the House was in discussions with the President-elect’s transition team about resolution of the appeal. The current administration opposed the motion, but the D.C. Circuit’s three-judge panel entered an order holding the case in abeyance until at least February 21, 2017, as the House had asked. By that date, the parties must file motions to govern further proceedings in the appeal.

Given the President-elect’s statements on the campaign trail and since the election, a post-inauguration change in executive branch policy on the ACA could make moot the appeal, and would likely narrow the issues for review. Those eager for more on the question of standing for political institutions will have to wait until at least February 2017—and possibly far longer—if the fiery legal questions posed by the ACA subsidies appeal tend to cool under the new administration.

Notes:

^[1] The executive branch’s motion for certification of that ruling for interlocutory appeal was denied by Judge Collyer shortly thereafter.