For the last five years, Republicans in Congress have adopted a rather simple and old-fashioned strategy for going after Obamacare: Throw everything against the wall and see what sticks.
They’ve tried to repeal it; defund it; shut down the government to block it; pray that the Supreme Court would overturn it (twice); persuade Democrats to help them undermine it; and most recently, sue President Obama over how the government chose to implement it.
On Thursday afternoon, House Republicans found out that something finally stuck. A federal judge decided in their favor and ruled that the Obama administration was spending money on insurance subsidies that Congress never specifically appropriated. Like several of the GOP’s previous maneuvers, this victory is tentative and may be temporary: Judge Rosemary Collyer, a George W. Bush appointee on the U.S. District Court in D.C. stayed her own ruling so the government could appeal, and a higher court might reverse the decision or find that the House of Representatives had no standing to sue the president in the first place.
Yet this latest legal threat to the Affordable Care Act seems to validate the GOP’s try-anything approach. When House Republicans first came up with the idea to take the president to court nearly two years ago, they planned to sue the administration over a completely different part of Obamacare. Then-Speaker John Boehner was, as usual, facing pressure from conservatives who were frustrated at Obama’s liberal use of executive authority and their inability to derail the hated health-care law. So he and his leadership team hatched a plan to file a lawsuit accusing the president and his administration of exceeding their authority by unilaterally delaying the implementation of the employer mandate in Obamacare. The requirement that businesses with more than 50 employees provide insurance to their workers had long been a big target for Republicans and one of the more contentious policies in the law. It was the middle of the mid-term congressional campaigns, and Republicans suspected the administration was delaying the mandate to put off the political pain of compliance until after the election.
“The president changed the health-care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it,” Boehner said in a statement at the time. “That’s not the way our system of government was designed to work. No president should have the power to make laws on his or her own.” The irony was that House Republicans had repeatedly assailed the employer mandate as a jobs killer, and yet here they were suing to force the administration to implement it faster.
The first step for Boehner was to engineer passage of a resolution formally authorizing the House to sue the president. In drafting that resolution, the speaker’s legal team left themselves some wiggle room. Instead of specifically focusing on the employer mandate, the resolution authorized the House to initiate litigation over the implementation of “any provision” of the Affordable Care Act. That would become important later.
It’s not easy for anyone to sue the president or his administration, and as House GOP leaders would soon find out, it is particularly difficult for one chamber of Congress to bring a lawsuit against the executive branch. Courts have traditionally deferred to the president in legal conflicts with Congress and have been reluctant to serve as a referee for political disputes that are ordinarily hashed out through the give-and-take of legislative negotiation. Because Democrats controlled the Senate at the time, House Republicans appeared to be at a disadvantage since only one half of Congress would be claiming injury as a result of the administration’s actions.
Further complicating matters, the House GOP struggled to find a lawyer who would actually take the case to court. The first two firms the House hired quit, supposedly under pressure from Democratic clients who did not want to be associated with such a partisan case. Boehner’s office considered forgoing outside counsel entirely or combining the Obamacare suit with a legal challenge to the president’s executive action on immigration. Finally, they found a lawyer who would commit to the case, Jonathan Turley, and in late November 2014, the House sued the administration.
When the House filed its suit in federal district court, the administration’s delay in implementation of the employer mandate was not the only challenge it brought. The complaint also cited a much more technical matter—the government’s funding of subsidies to insurance companies that reduce the cost of co-payments, deductibles, and other costs for low-income people. As The New York Times has reported, staffers for the House Energy and Commerce Committee discovered that there was no explicit congressional appropriation for the $130 billion or so over 10 years that the government was sending to insurers as reimbursements. The administration argued that language in the Affordable Care Act meant for the program to be funded permanently, while the lawsuit countered that it was subject to annual appropriations by Congress. Since the Republican-controlled Congress had never explicitly appropriated the money, they argued, the Obama administration was violating the Constitution by spending money without approval from legislators.
The government first tried to block the House from even bringing the case by arguing that a chamber of Congress lacked the standing to sue over what was essentially a political dispute. Last September, Judge Collyer issued a two-part ruling. She threw out the GOP’s challenge to the employer mandate—the original source of complaint from Republicans—but she allowed the subsidy claim to go forward, deciding that it was a constitutional question over the separation of powers. And in a 38-page ruling on Thursday, she found in the House’s favor: An appropriation from Congress, she wrote, “cannot be inferred”—it must be made explicitly.
Unlike the two previous challenges to Obamacare that the Supreme Court has rejected, the House lawsuit would not destroy the law completely, although it could wreak havoc by raising the cost of health-care plans. It would also require Congress to find an alternative source of money to use in reimbursing insurers—an unlikely scenario while Republicans are in charge. Collyer’s ruling won’t be in effect while the administration appeals, and the White House is confident it will receive a friendlier hearing before the D.C. Circuit Court of Appeals, where Democratic appointees have a majority.
For now, however, Republicans are rejoicing. Boehner, since deposed, hailed the decision as “a victory for the American people, and for House Republicans.” His successor, Paul Ryan, echoed the sentiment and credited Boehner for the win. This ruling may not be what Republicans initially envisioned, but that matters little now. When it comes to attacking Obamacare, the GOP motto is: whatever works.