House can sue over Oba­macare im­ple­men­ta­tion

Fed­eral judge deals blow to White House

The Washington Times Weekly - - Politics - BY TOM HOW­ELL JR.

The House has le­gal stand­ing to sue Pres­i­dent Obama over how he im­ple­mented his sig­na­ture health care law, a fed­eral judge said Wed­nes­day, deal­ing a blow to the White House and breath­ing new life into a pi­o­neer­ing law­suit that fre­quently evoked the Found­ing Fathers’ wishes.

U.S. Dis­trict Judge Rose­mary M. Col­lyer, pre­sid­ing in Washington, said Speaker John A. Boehner can pur­sue claims the ad­min­is­tra­tion in­jured Congress as an in­sti­tu­tion when it con­tin­ued to dole out cost-shar­ing pay­ments un­der the Af­ford­able Care Act even though law­mak­ers had not ap­proved them.

Judge Col­lyer said she wasn’t rul­ing yet that Mr. Obama has over­stepped his con­sti­tu­tional pow­ers but said judges can be called to ref­eree the dis­pute be­cause it in­volves Congress’ power of the purse.

“The con­sti­tu­tional tres­pass al­leged in this case would in­flict a con­crete, par­tic­u­lar harm upon the House for which it has stand­ing to seek re­dress in this court,” Judge Col­lyer wrote.

The White House vowed an im­me­di­ate ap­peal, say­ing the judge’s rul­ing was with­out prece­dent.

The case stemmed from a law­suit filed last Novem­ber that chal­lenged Mr. Obama’s moves to twice de­lay the Af­ford­able Care Act’s in­sur­ance man­date on em­ploy­ers and to re­im­burse in­sur­ers who have re­duced co-pays and de­ductibles for qual­i­fied Oba­macare en­rollees as a con­di­tion of par­tic­i­pat­ing in the state-based health care ex­changes.

Repub­li­cans said Congress never au­tho­rized the re­im­burse­ment money, and in­deed specif­i­cally re­jected an ad­min­is­tra­tion re­quest for that spend­ing, so by mov­ing ahead any­way, Mr. Obama vi­o­lated Congress’ con­sti­tu­tional power of the purse.

If the House suc­ceeds on the sub­stance of their suit and in­evitable ap­peals, it would spell trou­ble for Mr. Obama’s name­sake law. Nearly 6 mil­lion Oba­macare cus­tomers with in­comes be­tween 100 per­cent and 250 per­cent of the poverty level rely on the pay­ments, ac­cord­ing to a re­cent anal­y­sis by Avalere Health, a D.C.-based con­sul­tancy.

House Ways and Means Chair­man Paul Ryan was al­ready pre­dict­ing vic­tory Wed­nes­day, say­ing the ad­min­is­tra­tion’s de­ci­sion to forge ahead with the cost-shar­ing pro­gram was “one of the most law­less things” it has done.

“I’m con­fi­dent the House will ul­ti­mately pre­vail, be­cause no ad­min­is­tra­tion can spend money with­out con­gres­sional ap­proval,” the Wis­con­sin Repub­li­can said. “It’s time that we start re­vers­ing the pres­i­dent’s over­reach and give power back to Congress.”

Judge Col­lyer, who was ap­pointed by Pres­i­dent Ge­orge W. Bush, said the House lacked stand­ing to sue over de­lays to the man­date, be­cause a cham­ber of Congress can’t show an ac­tual in­jury from the way the pres­i­dent car­ries out the law.

But she said the House can pur­sue its law­suit over spend­ing, be­cause that in­volves fun­da­men­tal ques­tions of sep­a­ra­tion of pow­ers.

“This con­sti­tu­tional struc­ture would col­lapse, and the role of the House would be mean­ing­less, if the Ex­ec­u­tive could cir­cum­vent the ap­pro­pri­a­tions process and spend funds how­ever it pleases,” she wrote.

Mr. Boehner, who agreed to pur­sue the law­suit last year at the prod­ding of con­ser­va­tives, cheered the judge’s de­ci­sion.

“I am grate­ful to the court for rul­ing that this his­toric over­reach can be chal­lenged by the co­equal branch of gov­ern­ment with the sole power to cre­ate or change the law,” the Ohio Repub­li­can said. “The House will con­tinue our ef­fort to en­sure the sep­a­ra­tion of pow­ers in our demo­cratic sys­tem re­mains clear, as the Framers in­tended.”

But the ad­min­is­tra­tion said al­low­ing these law­suits will open the flood­gates and force pres­i­dents to de­fend against a string of po­lit­i­cally mo­ti­vated at­tacks in court. They said Congress al­ready has the power to stop the pres­i­dent by pass­ing a new law.

“The law is clear that Congress can­not try to set­tle gar­den-va­ri­ety dis­putes with the Ex­ec­u­tive Branch in the courts,” White House deputy press sec­re­tary Jen Fried­man said Wed­nes­day. “This case is just another par­ti­san at­tack — this one paid for by the taxpayers — and we be­lieve the courts will ul­ti­mately dis­miss it.”

Judge Col­lyer in­sisted her opin­ion would “open no flood­gates” since it was tai­lored to the case be­fore her.

“De­spite its po­ten­tial po­lit­i­cal ram­i­fi­ca­tions, this suit re­mains a plain dis­pute over a con­sti­tu­tional com­mand, of which the Ju­di­ciary has long been the ul­ti­mate in­ter­preter,” she said.

The ad­min­is­tra­tion ar­gues that Congress showed it wanted the re­im­burse­ment money spent when it passed the Af­ford­able Care Act in 2010, and au­tho­rized the pro­gram.

But the House ar­gued that the money has to be newly ap­proved ev­ery year — and Congress ex­plic­itly re­fused to green­light those pay­ments.

“The con­sti­tu­tional tres­pass al­leged in this case would in­flict a con­crete, par­tic­u­lar harm upon the House for which it has stand­ing to seek re­dress in this court.”

— U.S. Dis­trict Judge Rose­mary M. Col­lyer

AS­SO­CI­ATED PRESS

“I am grate­ful to the court for rul­ing that this his­toric over­reach can be chal­lenged by the co­equal branch of gov­ern­ment with the sole power to cre­ate or change the law,” said House Speaker John A. Boehner, who agreed to pur­sue the law­suit last year at the prod­ding of con­ser­va­tives.

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