(Bloomberg) — U.S. House Republicans suing the Obama administration over the Patient Protection and Affordable Care Act (PPACA) should change it if they don’t like it, a Justice Department lawyer told a skeptical federal judge in a bid to have the lawsuit thrown out.
The House “has any number of tools” to settle its differences with the executive branch, without running to the courts, attorney Joel McElvain said. Republicans can negotiate with the administration and “they can pass a new statute,” he said.
U.S. District Judge Rosemary Collyer didn’t seem impressed with the argument, asking why lawmakers should forego a day in court just because they had other options.
“This is the type of claim that belongs in the political process,” McElvain said.
The suit challenging the administration’s reimbursements to insurance companies was approved in a party-line vote by the House of Representatives in July and filed Nov. 21. The Republicans claim the insurance reimbursements, which total about $175 billion over a decade, weren’t approved by Congress and that the president unlawfully delayed a requirement that most employers provide insurance for workers.
The case is being heard as both sides wait for a decision from the U.S. Supreme Court in a separate lawsuit over premium subsidies. Opponents of PPACA, or Obamacare, claim the subsidies are legal only in the 16 states that have created their own marketplaces to sell coverage.
The Obama administration has interpreted the law to make subsidies available in all states.
In the Washington federal court Thursday, Jonathan Turley, a lawyer for the House, told the judge that the funding legislation was passed and deliberately omitted money for certain insurance payments under PPACA.
Allowing the administration to work around that lack of spending authority by using money from other sources would render Congress’s power of the purse “decorative,” Turley argued.
Why not pass a law explicitly forbidding the spending, Collyer asked, picking up on McElvain’s argument that Congress has alternatives to suing.
That would create a “one free bite rule” under which the executive branch could stray from Congress’s spending instructions until lawmakers reined it in with a second more explicit directive, Turley said.
“What about impeachment? Is that an option?” asked Collyer, an appointee of President George W. Bush.
Lawmakers shouldn’t have to use Draconian measures to assert constitutional prerogatives, Turley told the judge.
Resorting to impeachment to enforce appropriation authority would be inefficient and ineffective, akin to “running a nuclear plant with an on-off switch,” Turley said.
Thursday’s hearing covered only whether the House has the legal authority to sue and didn’t examine the merits of the case.
Collyer didn’t indicate when she would rule.