An­other anti-ACA law­suit brews for Obama to fight

Modern Healthcare - - THE WEEK AHEAD - —Lisa Schencker

The Obama ad­min­is­tra­tion this week hopes to block yet an­other law­suit that could dis­rupt the Af­ford­able Care Act, ar­gu­ing that the plain­tiffs lack stand­ing to sue.

Ad­min­is­tra­tion lawyers will try Thurs­day to per­suade U.S. Dis­trict Judge Rose­mary Col­lyer in Wash­ing­ton, a Ge­orge W. Bush nom­i­nee, to toss a law­suit filed by House Repub­li­cans in Novem­ber. The suit chal­lenges Pres­i­dent Barack Obama’s de­ci­sion, with­out con­gres­sional ap­proval, to de­lay penal­ties on cer­tain em­ploy­ers who have not pro­vided cov­er­age for their work­ers.

In what could pose a big­ger threat to the law, the plain­tiffs also al­lege the ad­min­is­tra­tion is il­le­gally us­ing U.S. Trea­sury money meant for other pur­poses to fi­nance cost-shar­ing sub­si­dies for low-in­come ex­change plan mem­bers. Those sub­si­dies are pro­jected to to­tal about $175 bil­lion over 10 years. Congress never ap­pro­pri­ated the money.

The ad­min­is­tra­tion says the fed­eral courts do not have ju­ris­dic­tion to “ref­eree” in­sti­tu­tional dis­putes be­tween fed­eral gov­ern­ment branches. But the plain­tiffs claim the ad­min­is­tra­tion usurped fun­da­men­tal House re­spon­si­bil­i­ties. “The House can­not use its power of the purse to check the Ex­ec­u­tive if the Ex­ec­u­tive is free to dole out public funds with­out any con­gres­sional ap­pro­pri­a­tion,” House Repub­li­cans ar­gue.

Ker­mit Roo­sevelt, a Uni­ver­sity of Penn­syl­va­nia con­sti­tu­tional law ex­pert, said the plain­tiffs will have dif­fi­culty prov­ing they have stand­ing. The Supreme Court has said mem­bers of Congress “don’t have the author­ity to chal­lenge a law be­cause they don’t like it ... un­less it’s harm­ing them in some con­crete, spe­cial way,” he said.


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