In a master stroke of timing, the House of Representatives has finally filed that big lawsuit against Barack Obama for his tyrannical actions in using executive orders as if he were some kind of president or something. As you recall, we thought it was dead, only, like Snake Plisskin, it turns out it had just vanished for a while, and then the House finally found a lawyer willing to take the case (who wasn’t Larry Klayman, even), because separation of powers — and now it is ON, Barry. You’ll be lucky if you can Escape From DC!
The lawsuit had originally been only about the tyranny of Barack Obama delaying the employer mandate in the Affordable Care Act by one year — that thing that the Republicans wanted so bad when they were shutting down the government last year. That’s still in there, because of course no president has ever had the power to make minor adjustments to the implementation of a healthcare law, just as long as you insist that we live in an alternate universe where George W. Bush never waived penalties for late signups in Medicare Part D. Did you know that Congress never passed a law allowing him to do that, and yet he went unsued for it, too?
Also, there’s suddenly a brand new part of the lawsuit we’d never even heard anybody yell and threaten and stomp their feet about before, at least not in a See You In Court! way. Thanks, new lawyer Jonathan Turley!
The suit also challenges what it says is President Obama’s unlawful giveaway of roughly $175 billion to insurance companies under the law. According to the Congressional Budget Office, the administration will pay that amount to the companies over the next 10 years, though the funds have not been appropriated by Congress. The lawsuit argues that it is an unlawful transfer of funds.
That issue involves subsidies known as cost-sharing reductions, which the federal government pays to insurers on behalf of people whose incomes range from the poverty threshold to two and a half times the poverty threshold ($11,670 to $29,175 a year for an individual). If the lawsuit is successful, poor people would not lose their health care, because the insurance companies would still be required to provide coverage — but without the help of the government subsidy, the companies might be forced to raise costs elsewhere.
Now, the griping about cost-sharing didn’t come entirely out of nowhere; it’s been a part of the thick catalogue of complaints about Obamacare for some time, but it hadn’t been mentioned as part of the lawsuit until the thing was filed. We’ll confess that we don’t have our green accountant’s eyeshade handy today, so here’s a Vox explainer to give you some expertise explainering:
While the Affordable Care Act authorized these cost-sharing subsidies when it was passed in 2010, the House lawsuit says it never appropriated the necessary funding to be sent over to Health and Human Services.
So while HHS appears to have the funds to make those payments, the House lawsuit seems to be arguing that nuh-uh, it can’t actually make the payments because the House never specifically appropriated them. (If any readers did bring their green eyeshade today, let us know. Math is hard, let’s go shopping.)
Then again, the details may not matter that much, because no matter what, it’s tyranny. As everyone knows, Hitler got his start by spending funds for purposes that had been approved by one law but not specifically appropriated by the Reichstag, which is why he set it on fire.
In any case there are some pretty odd, not-especially-lawyerly bits in the lawsuit. It begins with a little history and civics lesson about the separation of powers, which seems weird in a complaint where you’re just supposed to list your allegations of all the ways the defendant made you sad in an unlawful way.
[A]ll legislative power is vested in Congress, and Congress alone. U.S. Const. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”). This legislative power may be exercised only through the “single, finely wrought, and exhaustively considered process,” Clinton v. City of New York, 524 U.S. 417, 439-40 (1998), that is familiar to us all, namely, the passage of identical bills by the House of Representatives and the Senate (bicameralism), followed by delivery to the President for his signature or veto (presentment) … Beyond the President’s role in the presentment process, the Constitution does not permit the Executive Branch to enact laws, or to amend or repeal duly enacted laws, including by adopting rules or taking other unilateral actions that have such an effect.
You sort of expect John Boeher to burst into song about being a Bill, yes he’s only a Bill, who’s sittin’ here on Capitol Hill.
Surprisingly — or maybe not — the suit doesn’t actually spend a heck of a lot of space on the decision to delay the employer mandate. Much of it focuses on the details of whether a specific appropriation is needed to fund those cost-sharing payments to insurers. We are not going to get bogged down in all that, thank you, except to note another phrase that we have a feeling lacks lawyerly precision.
Referring to the supposedly illegal way the payments are covered, the complaint says, “The Constitution does not permit such a sleight of hand.” We are pretty sure that sleight of hand isn’t in the Constitution one way or the other, although some have argued that the 10th Amendment covers other magic tricks, such as appearing to saw a lady in half.
There’s also this bizarre justification of why the courts need to come save America — or at least the legislative branch — from the tyranny of executive orders:
The House has no adequate or available administrative remedy, and/or any effort to obtain an administrative remedy would be futile.
Again, not constitutional scholars here, but have you guys ever heard of this “impeachment” thing? Oh yeah — that’s what you wanted to avoid.