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Today was the first day in court for House of Representatives v. Burwell, et al., the often criticized lawsuit brought by the House against President Obama’s overreached use of executive power in changing elements of the Obamacare bill without a congressional vote.

Specifically the actions being contested include authorizing Treasury payments to healthcare insurers without the funding being agreed by Congress and delaying implementation of the law’s employer mandate, which required employers with more than 50 employees to provide healthcare coverage.

The Administration of course began by trying to have the judge toss the lawsuit. They argued  the House lacks standing to sue, citing a section of U.S. law that means the House would have to prove it has been directly harmed.

U.S. District Judge Rosemary Collyer (a Bush #41 appointee) seemed unhappy when she grilled the Justice Department lawyer Joel McElvain who was representing the Administration:

“So it is your position that if the House of Representatives affirmatively voted not to fund something … then that vote can be ignored by the administration, because after all, no one can sue them?” she asked.

McElvain argued that the merits of the case were not being discussed at the hearing, and that any perceived injury was “abstract.”

“I’m not asking you to give me your brief. I want you to explain … why it’s not an insult to the Constitution?” Collyer said.  

McElvain argued that the House could pass new legislation if it disagreed with the administration’s changes, which he said were legal under “pre-existing permanent appropriation.”

The Judge wasn’t buying it she responded, “There was a request and the House said no money.”

Later on the Judge lit into  McElvain: “You can’t just shake your head and not deal with the question.”

Before the hearing Jonathan Turley, the lawyer for the House Republicans explained:

 This threshold question [of standing] is extremely important because Congress’s “Power of the Purse” is a linchpin of our divided power system of government. The power to decide which federal programs shall be funded, and which shall not, is fundamental to Congress’s ability to exercise a check upon the vast powers of the executive branch. Defendants’ argument that the court cannot hear the House’s claims in this case is extremely dangerous for our system of government, and for the American people whose liberty ultimately rests on the ability of the three branches actively to check each other. This is so because, if the executive can spend public funds in the absence of an appropriation from Congress (as defendants are doing here), and if the House is barred from getting into federal court to challenge this action (as defendants argue here), then Congress’s ability to use the “Power of the Purse” to check the executive largely disappears.

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 said, “I just haven’t decided yet.”

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