There's a double whammy of potential legal hits facing Obamacare this month. The most imminent is of course the Supreme Court's decision in
King v. Burwell, the case challenging subsidies on the federal health insurance exchange. Even if the Supreme Court decides to do the non-political thing, there's another case lurking in the background that could do as much damage. That's House Speaker John Boehner's lawsuit against President Obama, the one
he filed in order to appease the problem children in his conference who wanted to impeach Obama over immigration. The
initial hearing was last month, a hearing that left many concerned because Judge Rosemary Collyer, a George W. Bush appointee, seemed less concerned with what she was supposed to be determining—whether the Congress had standing to even sue in the case, whether it was actually harmed—and was much more intent on the substance of the case. That included musing on what recourse Congress might have, even pondering impeachment. The information Collyer has requested since the hearing heightens that concern. Tim Jost, a law professor at Washington and Lee University and a prominent supporter of Obamacare, is
just one analyst who fears the worst.
During oral arguments last month, the judge seemed skeptical, at points, of the administration's claims that the House hadn't suffered any injury from its actions. After the arguments, she also requested to receive by June 15 documents related to funding decisions. That request, along with her remarks during oral arguments, have led some to speculate that Collyer may grant the House standing and hear the case.
Jost said it's “troubling” that Collyer seems to be examining the merits of the case before the standing issue is resolved. Collyer was nominated by President George W. Bush.
The case is challenging two of the administration's decisions on Obamacare. The first was the decision to delay the employer mandate for employers with more than 50 workers (a provision that is among the many things the House Republicans have voted to repeal). The second is the more potentially problematic, if Collyer gives the House standing. It's over the administration's decision to transfer money to insurance companies who provide coverage to new customers from a government cost-sharing program to offer discounted deductibles and co-payments. The Republican Congress did not fund that program. Because the law directs the government to pay the insurance companies, they have. Boehner's suit says that they didn't have authorization to do that because Congress didn't appropriate that money.
Jost, along with the government, argues "that cost-sharing reductions are closely related to premium tax credits offered under the law, and the tax credits are covered by a permanent appropriation." It's not clear that Collyer, the judge, agrees even though she's not supposed to be ruling on that. She's only supposed to be deciding if she wants to inject the judiciary into a fight between the legislative and executive branches, a fight that should have been settled legislatively.