Federal Judge Not Impressed With DOJ Attempts to Get Lawsuit Against Obamacare Thrown Out

Posted: May 29, 2015 8:20 AM

Since Obamacare was passed in 2010, dozens of changes have been made to the legislation by executive fiat, not through Congress. One of those changes includes the Obama administration going around Congress to issue payments from the Treasury Department directly to health insurance companies. Another change is President Obama's February 2014 action to delay the Obamacare employer mandate, which requires companies with more than 50 employees to provide health insurance under the law. By implementing the delay, the administration effectively altered the law without a vote from Congress. 

In November 2014, the House of Representatives sued over the changes coming directly from the White House. Liberal George Washington University Law Professor Jonathan Turley has been hired by the House to lead the lawsuit against the administration. The administration wants the lawsuit thrown out.

Yesterday the case was argued in front of U.S. District Judge Rosemary Collyer, who seriously questioned the administration's actions of going around Congress to fund parts of Obamacare that the legislative body rejected. She also scolded DOJ attorney Joel McElvain for failing to provide a legitimate argument about why the lawsuit should be tossed. From Reuters

U.S. District Judge Rosemary Collyer, appointed by Obama's predecessor, Republican George W. Bush, repeatedly interrupted U.S. Justice Department lawyer Joel McElvain during the hearing in the U.S. District Court for the District of Columbia.

Justice Department lawyers argue that the House lacks standing to sue, citing a section of U.S. law that means the House would have to prove it has been directly harmed.

"So it is your position that if the House of Representatives affirmatively voted not to fund something ... then that vote can be ignored by the administration, because after all, no one can sue them?" she asked.

McElvain argued that the merits of the case were not being discussed at the hearing, and that any perceived injury was "abstract."

"I'm not asking you to give me your brief. I want you to explain ... why it's not an insult to the Constitution?" Collyer said.

McElvain argued that the House could pass new legislation if it disagreed with the administration's changes, which he said were legal under "pre-existing permanent appropriation."

At another point, Collyer admonished McElvain: "You can't just shake your head and not deal with the question."

Collyer will make a decision about whether the lawsuit from the House against the administration can proceed within the next few weeks.