The House Is Suing Obama Over an Obamacare Change It Likes

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.”