The battle over the Affordable Care Act (ACA) is heating up again with two recent high-profile decisions. In the first case, the U.S. House of Representatives as an institution sued the executive branch over actions taken by the executive during the implementation of the ACA. This case is unique because it addresses the broader question of whether the legislative branch has the authority to sue the executive branch over how the executive implements statutes. In U.S. House of Representatives v. Burwell, the U.S. House of Representatives sued the Obama Administration over the implementation of the ACA. Among the claims, the House of Representatives alleged that the U.S. Department of Health and Human Services (HHS) used un-appropriated dollars to pay the cost-sharing offsets to insurance companies provided for under ? 1402 of the ACA. The House of Representatives claimed that granting this authority to HHS harmed Congress, who it claimed has the authority under the Constitution to appropriate funds. Furthermore, the suit alleged that the U.S. Department of Treasury abused its discretion bydisregarding statutorily-imposed deadlines when, aEURoeunder the guise of implementing regulations, [the Obama Administration] effectively amended the Affordable Care ActaEUR(TM)s employer mandate by delaying its effect and narrowing its scope.aEUR? n a ruling on a motion to dismiss, the district court permitted the causes of action alleging a constitutional violation, i.e., the allegations relating to the use of non-appropriated funds, to proceed. However, the court dismissed the House of RepresentativeaEUR(TM)s remaining claims, noting:

The only issue before the Court is whether the House can sue the Secretaries; the merits of this lawsuit await another day. Although no precedent dictates the outcome, the case implicates the constitutionality of another BranchaEUR(TM)s actions and thus merits an aEURoeespecially rigorousaEUR? standing analysis. . . . The House sues, as an institutional plaintiff, to preserve its power of the purse and to maintain constitutional equilibrium between the Executive and the Legislature. If its non-appropriation claims have merit, which the Secretaries deny, the House has been injured in a concrete and particular way that is traceable to the Secretaries and remediable in court. The Court concludes that the House has standing to pursue those constitutional claims. In contrast, the HouseaEUR(TM)s claims that Secretary Lew improperly amended the Affordable Care Act concern only the implementation of a statute, not adherence to any specific constitutional requirement. The House does not have standing to pursue those claims.

In the second case, Dordt College; Cornerstone University v. Burwell, et al.,, two religious not-for-profit organizations, Dordt College and Cornerstone, sued over the accommodation [in the ACA] put in place to grant them exemptions based on their religious beliefs to the statuteaEUR(TM)s mandatory contraception coverage requirement. To obtain the exemption, which would protect the organizations from facing monetary penalties if they failed to provide their employees with the contraceptive coverage required by the ACA, the organizations were forced to participated in a self-certifying process created by the U.S. Department of Health and Human Services (HHS). Under this process, each organization had to submit to HHS a certification that they are a religious not-for-profit organization and that they haveaEURoe religious objections to providing coverage for some or all of the contraceptives required by the [ACA].aEUR? The Court of Appeals ruled aEURoethat by coercing Dordt and Cornerstone to participate in the contraceptive mandate and accommodation process under threat of severe monetary penalty, the government has substantially burdened Dordt and CornerstoneaEUR(TM)s exercise of religion.aEUR? The decision in Dordt College appears to be at odds with an earlier decision of the United States Court of Appeals for the Tenth Circuit, Little Sisters v. Burwell. In Little Sister, the Court of Appeals ruled that the religious beliefs accommodation to the ACAaEUR(TM)s contraceptive requirement did not substantially burden the not-for-profitaEUR(TM)s exercise of religion. Given the ramification of the two apparently conflicting decisions, this split between the circuits on this important issue shouldincrease the chances that the U.S. Supreme Court will grant certiorari and decide the issue.