The House Is Suing Obama Over an Obamacare Change It Likes

One of the two administrative actions in question delayed the law’s employer mandate”“which the House voted itself to do.

President Barack Obama talks with Speaker of the House, John Boehner, R-Ohio, during a meeting with the bipartisan, bicameral leadership of Congress in the Oval Office of the White House in Washington, DC, September 9, 2014. President Obama will speak to the nation September 10, about the strategy White House intends to implement to counter the jihadist Islamic state. AFP PHOTO / Jim WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)
National Journal
May 26, 2015, 4 p.m.

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.”

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