House of Representatives v. Burwell Update: “You can’t just shake your head and not deal with the question.”

May 28th, 2015

In case you didn’t have your executive power fill for the week with the 5th Circuit’s decision in Texas v. U.S. (I surely haven’t!), today D.D.C. held arguments in House of Representatives v. Burwell. Since there is no transcript available (please send it to me if you have it), I can only go on press accounts. The AP, Reuters, and National Journal suggest that Judge Collyer will not dismiss the suit, but is skeptical about standing.

But what stood out was how Judge Collyer beat up the DOJ lawyer for dealing in a fantasyland. In their briefing–like in other inaction-related cases–the government barely addressed the merits, and insists that because there is no standing, there’s no reason to even discuss the constitutional violations. This has been the Obama playbook–which collapsed in Texas.

Here is a smattering of quotes.


“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.”

At another point, Collyer admonished McElvain: “You can’t just shake your head and not deal with the question.”


A skeptical federal judge grilled Obama administration lawyers Thursday over the House GOP’s health care lawsuit, sounding unlikely to side with the president and dismiss the case.

“You don’t really think that, do you?” U.S. District Judge Rosemary Collyer asked Justice Department attorney Joel McElvain in the opening moments of his argument, as he tried to assert that the House hadn’t suffered a particular injury from Obama’s health care law and therefore lacks a basis for suing.

“I have a very hard time taking that statement seriously,” Collyer said. At other points she chided McElvain for his responses, saying “You are dodging my question” and “You may disagree with me but I happen to be the judge.”

National Journal:

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.

National Law Journal:

When DOJ’s Joel McElvain urged Collyer to dismiss the case on the basis that the House had no standing in an “abstract dispute” over legislative power, Collyer shot back.

“You don’t really think that,” the judge said, setting the tone for the rest of McElvain’s argument on behalf of the Department of Health and Human Services.

The case, as Collyer saw it, was over “how close have the secretaries [of HHS and Department of Treasury] come to the bone of the House’s authority” to appropriate funds under Article I, Section 9 of the Constitution.

McElvain maintained throughout the argument that the administration funded the insurance subsidies through a general appropriation. But even if the House’s allegations of unappropriated funding were true, he argued, the House must resolve its dispute through the political process rather than in court.

Nothing McElvain said seemed to satisfy Collyer’s doubts that the case is “merely a dispute over implementation rather than an insult to the Constitution.” She called the administration’s argument at times “circular,” “not direct” and “dodging the question,” and politely dressed down McElvain after he shook his head in disagreement as the judge explained her sense of the case.

“You can disagree with me but I happen to be the judge,” Collyer said.

Read more:

You get the picture.