A federal judge on Thursday took seriously a politically ballyhooed lawsuit filed by the Republican-controlled House of Representatives challenging the Obama administration’s implementation of the health care law.
In an 80-minute hearing, U.S. District Judge Rosemary M. Collyer resisted Justice Department claims that the House lacks the legal standing necessary to sue. While noting she has “no idea” what she ultimately will decide, Collyer leveled her hardest questions at the administration.
“It is, I think, a very serious disagreement,” Collyer said, adding that “whether the House has standing is a very different question than whether the (administration’s) action is lawful.”
Appointed to the bench by President George W. Bush, Collyer repeatedly, and perhaps tellingly, hammered Justice Department attorney Joel McElvain with sharp comments like “You’re not getting my point,” “You are dodging my question” and “This is the problem with your brief. It’s just not direct.”
The attorney hired to represent the House, George Washington University Law School Professor Jonathan Turley, seemed to have an easier time during the oral argument held before an audience of 75 people. Many reporters, but apparently no House members, were in the fourth-floor courtroom.
“Of all the constitutional injuries that we can (imagine), this is the big ticket,” Turley said.
The oral argument held Thursday was the first for the House lawsuit that was filed last November, following many months of GOP threats and pledges. Potentially, it could break new ground on broader questions about when Congress can sue the executive branch.
McElvain insisted that such congressional suits could only take place under “unique, narrow” circumstances.
The House authorized the health care lawsuit on a 225-201 vote, with no Democrats supporting it.
The suit argues that the Obama administration is spending money that Congress hasn’t appropriated, and that the administration unilaterally amended the employer mandate provisions written by Congress.
The employer mandate requires businesses with 100 or more employees to provide affordable health insurance for full-time workers or face a penalty of $2,000 per employee. The health care law originally called for the penalties to begin in 2014, but the White House delayed their enforcement after complaints from business groups
Republicans argued the president lacked the authority to postpone the penalties.
The argument Thursday focused on the lawsuit’s other claim, that the administration spent unappropriated funds on insurance cost-sharing subsidies authorized by Section 1402 of the Patient Protection and Affordable Care Act. House Republicans and their supporters contend this violated the principle that Congress controls the power of the purse.
“Congress never appropriated money for the 1402 program,” Turley said, but “the administration ordered the payment of billions of dollars.”
McElvain countered that the administration legitimately relied upon a “permanent appropriation” for the funds and that, in any event, the House’s complaint is more an abstraction than the kind of concrete injury needed to bring a federal lawsuit. Collyer pressed back on the point.
“Is it really abstract?” Collyer asked. “Or how close to the bone have the (administration officials) come to the congressional authority?”
Collyer stressed throughout that her initial decision will be whether the House can bring the lawsuit, rather than on the underlying merits. Even if she sides with the House on the threshold question, the substantive case could take months or years to resolve.
“I have no idea,” Collyer said, before quickly adding, “I have lots of ideas. I just haven’t decided yet.”
A more immediately high-impact judicial decision involving the Affordable Care Act will come from the Supreme Court by June 30. The court’s nine justices are still writing their opinions in a case challenging the health care law’s tax-credit subsidies provided in states that didn’t set up their own health exchanges.