- The Washington Times - Thursday, May 28, 2015

A federal judge resisted the administration’s quest Thursday to kill the House GOP’s lawsuit over Obamacare, lending weight to Speaker John A. Boehner’s effort to have the courts step in to referee the simmering separation of powers feud between Congress and President Obama.

U.S. District Judge Rosemary M. Collyer, presiding in Washington, pushed back against the Justice Department’s argument that the courts don’t have a role to play in refereeing the fight.

“You don’t really believe that, do you?” she told administration attorney Joel McElvain.

The exchange set the tone for a hearing in which the judge frequently interrupted the lawyer, and even joked toward the end that she had been too hard on him.

The case represents yet another area where Mr. Obama’s agenda has landed in the courts, joining environmental policies and immigration, where the president is also seeing resistance from the federal bench.

In the Obamacare case, filed in November, the House GOP is challenging Mr. Obama’s decision to twice delay the Affordable Care Act’s insurance mandate on employers and to continue reimbursing insurers who have reduced co-pays and deductibles for qualified Obamacare enrollees as a condition of participating in the state-based health care exchanges.

The lawsuit says Congress never authorized that spending, and indeed zeroed out funding for it, so Mr. Obama was breaking the law and violating Congress‘ constitutional power of the purse by continuing to disburse the funds.

Jonathan Turley, a George Washington University law professor retained by Mr. Boehner, said the House was forced to sue the administration after it “opened a credit card on the Treasury” to pay insurers.

He said if the White House can ignore Congress‘ budget and spend money how it wants, it would change the balance of powers between the branches, and he said the courts must step in and referee.

“What emerges from that is a different system, and a dangerous one,” he told the court, at one point holding up his pocket copy of the Constitution to drive home the point.

Mr. McElvain said if Mr. Boehner and his fellow Republicans don’t like Mr. Obama’s interpretation of the Affordable Care Act, they should pass a law that expressly forbids the administration from spending the money or find some other political remedy rather than running to the courts.

The lawyer also said even if the courts do rule they have the power to intervene, the House lawsuit isn’t a strong case, as the administration holds the authority to implement laws after Congress passes them.

“That role is reserved to the executive branch, not to the legislature,” he said.

Judge Collyer said she had a lot to consider in the days ahead, insisting she hadn’t made up her mind on whether the House had legal standing to pursue the lawsuit on its merits.

The second and, arguably, more prominent part of the lawsuit — that Mr. Obama unlawfully delayed the employer mandate requiring large firms to provide health insurance or pay fines — didn’t come up at all Thursday.

Instead, the judge focused on the White House’s decision to withdraw its appropriations request to Congress for Obamacare’s cost-sharing program.

Mr. McElvain said the administration realized it didn’t need one because the spending was mandatory — forcing the court to wonder if Mr. Obama reinterpreted the law after he was rebuffed by Congress.

It was one of several awkward exchanges between Mr. McElvain and Judge Collyer, who at one point stopped to note the lawyer was shaking his head vigorously.

“You can disagree with me, but I’m the judge,” she quipped.


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