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.”
What We're Following See More »
"Saudi Arabia said Saturday that Jamal Khashoggi, the dissident Saudi journalist who disappeared more than two weeks ago, had died after an argument and fistfight with unidentified men inside the Saudi Consulate in Istanbul. Eighteen men have been arrested and are being investigated in the case, Saudi state-run media reported without identifying any of them. State media also reported that Maj. Gen. Ahmed al-Assiri, the deputy director of Saudi intelligence, and other high-ranking intelligence officials had been dismissed."
"Special counsel Robert Mueller’s investigation is scrutinizing how a collection of activists and pundits intersected with WikiLeaks, the website that U.S. officials say was the primary conduit for publishing materials stolen by Russia, according to people familiar with the matter. Mr. Mueller’s team has recently questioned witnesses about the activities of longtime Trump confidante Roger Stone, including his contacts with WikiLeaks, and has obtained telephone records, according to the people familiar with the matter."
"Special Counsel Robert Mueller is expected to issue findings on core aspects of his Russia probe soon after the November midterm elections ... Specifically, Mueller is close to rendering judgment on two of the most explosive aspects of his inquiry: whether there were clear incidents of collusion between Russia and Donald Trump’s 2016 campaign, and whether the president took any actions that constitute obstruction of justice." Mueller has faced pressure to wrap up the investigation from Deputy Attorney General Rod Rosenstein, said an official, who would receive the results of the investigation and have "some discretion in deciding what is relayed to Congress and what is publicly released," if he remains at his post.
"The Justice Department on Friday charged a Russian woman for her alleged role in a conspiracy to interfere with the 2018 U.S. election, marking the first criminal case prosecutors have brought against a foreign national for interfering in the upcoming midterms. Elena Khusyaynova, 44, was charged with conspiracy to defraud the United States. Prosecutors said she managed the finances of 'Project Lakhta,' a foreign influence operation they said was designed 'to sow discord in the U.S. political system' by pushing arguments and misinformation online about a host of divisive political issues, including immigration, the Confederate flag, gun control and the National Football League national-anthem protests."