Judge Initially Skeptical of Plea to Dismiss House GOP's Obamacare Lawsuit

House Speaker John Boehner announced his intention to sue the president in July 2014. House Speaker John Boehner announced his intention to sue the president in July 2014. Susan Walsh/AP

A federal judge on Thursday challenged the Obama administration's opening efforts to dismiss the lawsuit brought by House Republicans over the Affordable Care Act.

In the first major hearing over the lawsuit, Judge Rosemary Collyer was critical of the administration's arguments to dismiss the case. The Health and Human Services Department says the House doesn't have the legal standing to challenge how the administration implements Obamacare.

The unprecedented lawsuit challenges the Obama administration's actions to fund the law's cost-sharing subsidies to insurers that help low-income enrollees without congressional appropriation and to delay the employer mandate by one year.

Collyer made a point to say she has not decided how to rule, but she was direct in challenging the administration's position and the oral arguments of Justice Department attorney Joel McElvain.

McElvain opened his argument by describing the House's objections to the Obamacare rules by calling it an "abstract dispute over the implementation" of federal law, and the House therefore had no standing.

Collyer responded by saying, "You don't really think that." She later added, "This is the problem I have with your brief—it's just not direct, you have to address their arguments." She did acknowledge more than once that she was tougher on the administration's lawyer.

The judge also had pointed questions of the House GOP's attorney, George Washington University Law Professor Jonathan Turley. Turley said that dismissing the lawsuit could limit the legislative branch's ability to combat future executive overreach. "That would mean that there's nothing we could do that would stop them," he said.

Collyer later responded in jest: "What about impeachment, is that an option?" She added, "I don't want to suggest… Don't anybody write that down."

She did not say when she will rule on the administration's request.

House Speaker John Boehner announced his intention to sue the president in July 2014, but the case's filing was postponed until November after two attorneys hired by the House dropped out, reportedly under pressure from other clients. Turley eventually took the case.

It has been followed by House threats to also sue over President Obama's executive actions on immigration, though no lawsuit has been filed yet.

The Obama administration says that the House had not been injured by the administrative actions in any specific way, that the Constitution's separation-of-powers doctrine barred the lawsuit, and that Congress had other ways of expressing its opposition to the actions—such as the power of the purse.

"The U.S. House of Representatives now asks this Court to decide a generalized, institutional dispute between the Executive Branch and one chamber of the Legislative Branch concerning the proper interpretation of federal law," HHS's lawyers wrote in their brief. "This novel tactic is unprecedented, and for good reason: The House has no standing to bring this suit."

The House countered by arguing that the administration's actions had nullified Congress's previous votes on the law and violated other constitutional powers, such as the authority to appropriate federal funding, and that various legal precedents supported their decision to bring the litigation against HHS.

It also warned of dire consequences if the court accepted the administration's argument.

"Defendants' extreme position, if accepted, would neuter Congress, enlarge the power of the Executive to dangerous levels, and seriously distort the balance of powers between the political branches," the House's attorneys wrote. "Such a concentration of unchecked power in one branch is precisely what the Framers sought to avoid in designing our tripartite system."

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