Boehner gets his day in court, and a friendly judge.
Will it ever end? No. Remember how a year ago House Republicans were all up in arms over President Obama's executive actions on immigration? And how they were talking about impeachment? Remember how Speaker John Boehner mollified them? With a
lawsuit against Obama for a completely unrelated executive action—delaying the employer mandate under Obamacare, which was something that they wanted to have happen, anyway, and to use Treasury funds that were not appropriated by Congress to pay for $175 billion in subsidies to Obamacare customers.
It took Boehner three tries to get a lawyer to take the case, and thus it ended up not being filed until November. The first hearing in the District Court for the District of Columbia was heard Thursday, a hearing on the White House's motion to dismiss the case and to determine whether Congress actually had standing to sue. But Judge Rosemary Collyer, a George W. Bush appointee, made it clear that she was far more interested in the substance of the case, and furthermore pretty damned hostile to the president, including at one point pondering whether impeachment might not be an option.
Justice Department attorney Joel McElvain opened his argument by describing the House's objections to the Obamacare rules by calling it an "abstract dispute over the implementation" of federal law, and the House therefore had no standing.
Collyer responded by saying, "You don't really think that." She later added, "This is the problem I have with your brief—it's just not direct, you have to address their arguments." She did acknowledge more than once that she was tougher on the administration's lawyer.
The judge also had pointed questions of the House GOP's attorney, George Washington University Law Professor Jonathan Turley. Turley said that dismissing the lawsuit could limit the legislative branch's ability to combat future executive overreach. "That would mean that there's nothing we could do that would stop them," he said.
Collyer later responded in jest: "What about impeachment, is that an option?" She added, "I don't want to suggest… Don't anybody write that down."
McElvain went into the hearing to argue standing, and reasonably so because of that whole separation of powers thing in the Constitution which demands that disputes between the executive and Congress be worked out legislatively. There's also plenty of legal precedents "are pretty clear that members of Congress do not have standing to sue the executive," as Tim Jost, a Washington & Lee University law professor and Obamacare authority
explains. "If they did, the litigation would be endless, as every time a president did something a member disagreed with, the courts would be dragged in." We'll see if Collyer puts much stock in precedent.