The Affordable Care Act is heading back to the courts yet again this week, as the House Republican lawsuit challenging the Obama administration’s executive changes to the law will get a hearing Thursday at a federal district court in Washington.
The largely unprecedented lawsuit, which has since been followed by threats of more House litigation against President Obama’s executive actions on immigration, has had a bumpy road. House Speaker John Boehner went through two attorneys before finally finding a third that stuck, with reports that the first two dropped out after pressure from their other clients.
But now it is getting a day in court. Judge Rosemary Collyer of the U.S. District Court for the District of Columbia will hear arguments on the administration’s motion to dismiss the lawsuit, which alleges that the House doesn’t have legal standing to sue at all.
The weirdest thing about the whole case, though, is: the House actually agrees with one of the administrative changes—at least the underlying policy.
Republicans are suing over two specific administrative actions taken by the Health and Human Services Department: Paying cost-sharing subsidies to insurers that help people with the lowest incomes without the funding being appropriated by Congress and unilaterally delaying the employer mandate’s penalties for one year.
But the House has voted more than once to postpone the employer mandate for a year, sometimes on its own, sometimes in tandem with the individual mandate. So the GOP isn’t arguing that it opposes the delay, just that the way it was done was illegal.
“We are focusing specifically on executive actions relating to the Affordable Care Act, but don’t lose sight of the critical importance of these issues at the core of our representative democracy,” Rep. Peter Roskam, chairman of a Ways and Means subpanel said at a hearing last week. “The question before us is not whether the administration is implementing the health care law. It’s whether the administration is undermining the rule of law. And the answer is yes.”
“It’s not about health care,” Pennsylvania Republican Rep. Mike Kelly added more succinctly. “It’s about the health care of our Constitution.”
That’s the tightrope that congressional Republicans have been walking since July 2013, when the administration first announced it would delay the mandate. Just a few days after HHS said the mandate wouldn’t apply in 2014 as planned, Rep. Tim Griffin of Arkansas introduced a bill to do the same thing. The House passed the bill, but the Democratic-led Senate never took it up.
“The White House may believe it can unilaterally delay implementation of Obamacare’s employer mandate, but only Congress can change the law,” Griffin said in a statement then.
And that’s been the conservative position ever since.
Boehner noted in a November op-ed explaining the lawsuit that the House had “passed legislation to address this problem.” But, he wrote, “there must be accountability” for the administration allegedly circumventing the Constitution. His allies reiterated that position last week.
“There have been numerous instances when the administration has made what many members of Congress consider to be good changes to the law, but not within the statutory authority,” Grace-Marie Turner, founder of the conservative Galen Institute health-care think tank, told members at the oversight hearing. She cited the employer-mandate delay specifically.
“We can agree that the policy result “¦ that the burden on employers should be limited, but the law doesn’t give the administration that kind of flexibility without Congress, correct?” North Carolina Republican George Holding asked one of other witnesses at the hearing. (The witness affirmed that interpretation).
The administration argues that the delay is within its discretion when implementing the law and, moreover, the House doesn’t have legal standing to challenge the change, anyway. It asserts that congressional Republicans are barred by the Constitution’s separation of powers from suing and that they have other non-litigious means, such as the power of the purse, to counteract HHS.
The Justice Department’s lawyers, who are representing HHS, haven’t raised the point about the House approving the same policy in its briefs, but a “senior administration official” made sure to note the irony to CNN shortly after Boehner announced the forthcoming lawsuit in July.
“If legislation is needed, I’m not sure I agree that it is, but if legislation is needed and the political process can’t provide it, then I think that’s a failure of the political process,” Robert Weiner, a former Obama administration attorney, said when asked about the bills that the House had passed that align with the administrative changes but nonetheless earned veto threats from the White House. “But I don’t think it means we should go to litigation.”