Judge skeptical of Obama’s call to dismiss Republican lawsuit

A federal judge on Thursday appeared skeptical of the Obama administration's call to dismiss a lawsuit from House Republicans challenging President Obama's use of executive power.

Republicans have charged that Obama is flouting the law on a wide range of issues, and behind Speaker John BoehnerJohn BoehnerRyan has little margin for error in Speaker vote Top Lobbyists 2016: Hired Guns The Hill's 12:30 Report MORE (R-Ohio) sued specifically over the White House's actions related to ObamaCare.

The lawsuit argues that Obama is spending certain funds under the healthcare law even though Congress has not appropriated them, and that the administration unconstitutionally delayed the mandate for employers to provide health insurance.

Both sides agree the suit is unprecedented: The House says it has never before had to defend its power of the purse in court, and the administration says the House has never tried to win a political dispute between branches of government in court.

Federal District Judge Rosemary Collyer, an appointee of former President George W. Bush, on Thursday held a preliminary hearing to determine if the House has legal standing to bring its arguments in court.

Administration lawyer Joel McElvain argued the issue is a "generalized" dispute and there is no particular harm to the House, meaning lawmakers have no standing to sue.

But Collyer interrupted this argument at the beginning of the hearing to ask, “You don’t really think that?”

She pressed McElvain on "why you think this just an abstract issue of law.”

McElvain repeatedly tried to stick to the issue of standing, noting that this preliminary stage is not about the substance of the case. But the judge pressed McElvain on the substance, saying it was relevant to the standing question to see whether the dispute was abstract or whether there was a concrete issue harming the House.

Collyer said if the dispute really is abstract and generalized, “you’re probably right” that the House has no standing.

“I just can’t decide whether that’s actually a fair statement,” she said.

She focused on the payment question, which concerns a section of ObamaCare that makes payments to insurers to help cover low-income households' expenses. The House says it never appropriated the funds and it is unconstitutional for Obama to spend them.

"I want to know where you find the appropriation," Collyer pressed the administration.

McElvain claimed the money did not need to be appropriated separately and that it comes from permanent mandatory funds, a “pre-existing permanent appropriation.”

But Collyer responded by saying, “There was a request and the House said no money.”

The House was represented in court by Jonathan Turley of The George Washington University Law School.

Collyer interrupted him far less, though she did tell him, “You need a real injury,” meaning the House has to be harmed in order to have standing.

Turley argued the injury was the House being stripped of its fundamental power of the purse. “In what rational universe is exercising the House appropriation power not a concrete injury?” he said.

Democrats seized on the fact that the first two lawyers appointed by House Republicans dropped the case.

"Even for $500-per-hour in taxpayer dollars, Speaker BoehnerJohn BoehnerRyan has little margin for error in Speaker vote Top Lobbyists 2016: Hired Guns The Hill's 12:30 Report MORE has had to scour Washington to find a lawyer willing to file this meritless lawsuit against the president," Drew Hammill, spokesman for House Minority Leader Nancy Pelosi (D-Calif.), said when Turley was brought on board in November.

The suit stems from the House’s vote in July to bring the legal action, and was viewed by some as an effort to appease conservatives angered by Obama’s use of executive action.

“Since we began taking this step, courts have continued to rule — as recently as this week — against the president’s executive overreach,” Boehner said in a statement Wednesday. “The very fact that the administration wants to avoid scrutiny — judicial or otherwise — shows you why this challenge is so important.”

The White House dismissed the GOP lawsuit as a "colossal waste of taxpayer dollars."

“This is the kind of litigation from House Republicans that does nothing to solve any of the problems facing the American people," White House spokesman Eric Schultz said Thursday. "I believe the last thing the American people want is to relive the political disputes over the Affordable Care Act that weren’t just from weeks or months ago, but literally years ago."

"We know that House Republicans have been engaged in a systematic repeal effort — they’ve tried to repeal the bill over 50 times, and failing to do so, now resorting to the courts," Schultz added.

If Collyer rules that the House has standing, there will be a separate hearing for the substance of the case to be argued.

But she noted that her mind is not made up.

“I just haven’t decided yet,” she said.

—This post was last updated at 3:35 p.m.