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Obamacare Lawsuit Judge Sharply Questions Justice Lawyer

Turley argued the House's case for standing to sue the administration over Obamacare. (Douglas Graham/CQ Roll Call File Photo)

If her combativeness Thursday was any indication, federal District Court Judge Rosemary Collyer could surprise legal experts who believed Speaker John A. Boehner's Obamacare lawsuit was doomed.  

After roughly an hour and a half of oral arguments, the judge who will determine whether the House lawsuit against President Barack Obama's delay of the employer mandate can go forward reported she had "no idea" which way she would rule. "No," Collyer said, amending that statement, "I have lots of ideas. I just haven't decided yet."  

But Collyer argued extensively with Department of Justice lawyer Joel McElvain over the administration's claim that the House's case was "abstract," that the Obamacare money to pay insurance companies is outside of the regular appropriations process and that the House already has legislative means of recourse to check the power of the president, and therefore does not need the additional ability to sue.  

In one particularly prolonged exchange, both Collyer and McElvain seemed to agree they were talking past each other, arguing over whether the estimated $175 billion in payments to insurance companies over the next 10 years really was a permanent appropriation that did not need to be included in annual funding bills. As the George W. Bush-appointed judge made her point, McElvain shook his head, prompting a stern rebuke.  

"You can disagree with me," Collyer said, "but I'm the judge."  

Meanwhile, when it was the turn of Jonathan Turley, the high-profile George Washington Law School professor representing Boehner and the House of Representatives, Collyer took a far more congenial tone.  

Turley, who is the third lawyer to take the case after the first two quit , argued that what the president was doing in going around the appropriations process was an affront to a key power of Congress: the power of the purse. He said using a permanent appropriation to pay insurance companies rendered Congress's control over appropriations "effectively decorative."  

While this particular set of oral arguments was over standing, there was hardly a mention of the original inspiration for the lawsuit: the president's delay of the employer mandate. While that debate would occur at a later hearing if the judge reaches the actual case, the House's argument seems to have shifted.  

Turley told reporters after the oral arguments that the specific damage the House had endured — why the House has standing in this case — was because the executive branch was damaging the power of the purse.  

Inside the courtroom, however, Collyer's questioning of Turley mostly focused on the other means by which the legislative branch could check the president's power.  

"What about impeachment? Is that an option?" she asked at one point, before seeming to worry how such a question would play with a courtroom full of reporters. "Don't anybody write that down," she commanded to a chorus of laughter.  

But Turley insisted using impeachment as the only check against the president was "like running a nuclear plant with an on/off switch." He suggested there had to be something more nuanced than simply impeachment.  

Collyer brought up the possibility of passing another law, which has traditionally been used as a means of checking the president's implementation of law.  

"Theoretically, that's possible," Turley acknowledged. But he argued allowing the administration to use permanent funds in any way they wanted until the legislative branch could stop them created a "one-free-bite rule," wherein Congress's vested appropriations powers would be damaged.  

On a second round of arguments, she asked McElvain why the existence of "alternate political remedies" would negate the ability of someone to sue. She brought up the example of a boss being wronged by an employee. But again, McElvain and Collyer seemed to talk past each other, as McElvain repeatedly insisted that legislators should turn to the legislative process as a means of recourse. In fact, he argued that the House, as an institution, had even less standing than an individual in this case because it had other options of recourse.  

Turley responded in his second round of arguments that he didn't know what to do with that reasoning. He called it "baffling."  

There is no firm timeline when Collyer will rule on the administration's motion to dismiss over lack of standing. Generally, such decisions range from a couple of months to a year.  

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