John Boehner’s Lawsuit Against Obama Is All About Obamacare, And Will Probably Be Dismissed
John Boehner's latest political move is designed mostly to appease the GOP base, but it's likely a non-starter from a legal point of view.
Ever since Speaker John Boehner announced his plan to file a lawsuit against President Obama, there’s been much speculation about what, exactly, he had in mind. In the comments he made on the issue, Boehner has generally only referred to general ideas of “Executive overreach” and a President who is going around Congress via Executive Orders to accomplish things that cannot through Congress. As I’ve noted before, there are legitimate issues raised by some of what Speaker Boehner has referred to, and it applies not only to the actions of this President but to the actions of his predecessors going back decades. For a long time, the American people, and Congress, seemed just fine with the idea of what has come to be known as the Imperial Presidency, especially in times where national security is threatened, but we’ve also seen plenty of examples in the past six decades or more of how that assumption of power by the Executive Branch has posed dangers to our Constitutional structure, and led to Presidents who are more and more willing to take action unchecked by the people’s representatives in the Legislative Branch. To some extent, then, a national discussion about these issues might actually be a good thing, although it was obvious to me from the start that this entire idea of a lawsuit by the House of Representatives was nothing but a massive political stunt.
Yesterday, that impression was seemingly confirmed when we learned that, in the end, the lawsuit that Boehner is talking about is going to be based solely on the GOP’s favorite political whipping boy, the Affordable Care Act:
WASHINGTON — Speaker John A. Boehner’s lawsuit against President Obama will focus on changes to the health care law that Mr. Boehner says should have been left to Congress, according to a statement issued Thursday by the speaker’s office.
By narrowly focusing the legal action on the Affordable Care Act, Mr. Boehner will sidestep the more politically problematic issue involving Mr. Obama’s executive action offering work permits for some illegal immigrants who were brought to the United States as children.
Last month, Mr. Boehner announced his intention to seek legislation allowing the House to sue the president over his use of executive actions, a reflection of charges by congressional Republicans that the president has overreached his authority. On Thursday, Mr. Boehner said the lawsuit would specifically challenge
the president’s decision to delay imposing penalties on employers who do not offer health insurance to employees in compliance with the Affordable Care Act.“The current president believes he has the power to make his own laws — at times even boasting about it,” Mr. Boehner said in his statement. “He has said that if Congress won’t make the laws he wants, he’ll go ahead and make them himself, and in the case of the employer mandate in his health care law, that’s exactly what he did.”
“If this president can get away with making his own laws, future presidents will have the ability to as well,” the speaker added. “The House has an obligation to stand up for the legislative branch, and the Constitution, and that is exactly what we will do.”
(…)
Mr. Boehner sought to clarify that he was not challenging Mr. Obama’s right to issue executive orders, only his right to change legislation without congressional approval. Republican leaders have carefully avoided challenging the president’s 2012 executive order concerning young illegal immigrants, although until Thursday, Mr. Boehner had refused to rule out such a challenge.
“In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it,” Mr. Boehner said. “That’s not the way our system of government was designed to work. No president should have the power to make laws on his or her own.”
Over the past several years, there have admittedly been several instances where the Obama Administration has stepped in, principally via regulations issued by the Dept. Of Health And Human Services, to modify deadlines set forth in the Affordable Care Act. For example, just since the PPACA exchanges went live last October, the Administration has delayed the requirement to comply with the employer mandate for small businesses, allowed people facing cancellation of their existing plans due to the law’s requirements to keep those plans if they wish, introduced another “administrative fix” that applies to people with pre-existing plans that may not strictly comply with the law, extended the open enrollment period due to problems with the Obamacare Exchanges not once but twice, and introduced yet more delays that apply to small business owners that push their compliance requirements out as far as 2016. Before last October, the Administration had also provided exemptions to large employers, unions, and several states in response to lobbying and complaints from those groups about the manner in which the law affected their pre-existing plans. Each of these changes, extensions, or exemptions has been latched on to by the President’s critics as an example both of him trying to “rewrite” the law and proof to their mind that the law as originally conceived was unworkable.
As I’ve noted before, there are definite concerns raised by the manner in which the Administration has used its regulatory and Executive Action powers to modify, or limit the impact of, certain provisions of the PPACA. As a general rule, after all, it is Congress’s job to pass the laws and the Executive Branch’s job to put those laws into effect. Numerous times, though, the Administration has acted to use its regulatory and other powers to “fix” the law in one way or another, quite often to avoid the political fallout that would come if the extension or exemption in question were not granted. That isn’t how things are supposed to work, however. If there are problems with a law passed by Congress then Congress needs to fix it by passing a supplemental law rather than letting the Executive Branch assume that role on its own. Practically speaking, of course, a bill to “fix” the PPACA would never make it through Congress, but that fact alone is not an excuse to deviate from what ought to be the proper manner in which these things are done. Notwithstanding that argument, though, it is not clear that these Administration actions are in any way illegal. Like every major law passed by Congress since the New Deal, the PPACA grants extensive rule making authority to the Executive Branch, principally the Dept. of Health And Human Services. The Administration, of course, has relied on this rule making authority to justify the actions that Republicans are complaining about here, of course, and it is entirely possible that there are entirely correct on the merits and would win the lawsuit should a Court every get to that point.
Most likely, though, any Court that hears this House of Representatives lawsuit will never get to that point.
As a general rule, the jurisdiction of Federal Courts is limited, pursuant to Article III, Section Two, of the Constitution, to what are generally referred to as actual “cases and controversies.” While the term is not explicitly defined in the Constitution, it is rooted in to some extent in the English Common Law that guided courts in the pre-Constitution era and, in general, means that Federal Courts are only authorized to hear matters that involve real disputes involving actual parties at least one of whom has suffered some kind of articulable injury. In Marbury v. Madison, which is known mostly for its establishment of the idea of Judicial Review, for example. the Court ruled in part that there were some actions taken by the Secretary of State that were not reviewable by a Federal Court. The doctrine was more fully fleshed out, though, in Baker v. Carr, a case which dealt with redistricting at the state level but which also set forth a six point standard for evaluating what is and is not a “political question” that is largely still followed today. Generally, the Court held that cases are “political” in nature, and thus outside the jurisdiction of the Federal Courts, when the following is true:
- “Textually demonstrable constitutional commitment of the issue to a coordinate political department;” as an example of this, Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be “political questions”
- “A lack of judicially discoverable and manageable standards for resolving it;”
- “The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;”
- “The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;”
- “An unusual need for unquestioning adherence to a political decision already made;”
- “The potentiality of embarrassment from multifarious pronouncements by various departments on one question.”
Without delving too far into the weeds of the not entirely interesting issues of justicability and standing in Federal Court, it strikes me that a very good argument can be made that the hypothetical lawsuit that the House is talking about here would meet all of these tests and, thus, would be considered a “Political Question” and dismissed before the Court even reached the merits of the claims made in the case. It is fair to note that there is a counter-argument that has been advanced by conservative attorneys who are apparently part of the team that is developing this lawsuit, but in all honesty those arguments don’t immediately strike me as being very persuasive. While it’s hard to make a definitive judgment on the matter before the lawsuit is filed, never mind before any Motions to Dismiss are filed in such a case, my instincts tell me that it is more likely than not that this lawsuit would would dismissed before the Court even talks about the merits of the arguments that it raises.
There is one puzzling thing about this lawsuit, and it concerns exactly what the House will be asking the Court to do. Every lawsuit must have some kind of “prayer for relief” setting forth in at least some basic form what it is that the Complainant is seeking as a recovery. Since monetary damages are out of the question here, the only logical remedy that the House could ask for here is to have all of the exemptions and extensions that the Administration put in place. In other words, the Republican House would be asking the Court to make sure that the Affordable Care Act is implemented faster. Somehow, I’m not sure that’s what the GOP is thinking of when they think of a lawsuit against Obama over Obamacare.
Of course, it’s blindingly obvious that this lawsuit isn’t really about the law, it’s about politics. As several political analysts have noted, the entire issues of executive overreach is one that polls well among the GOP base, and also has some resonance with independent voters. In many respects, then, it seems apparent that the lawsuit, which wouldn’t be anywhere close to being decided before November, is as much about bringing people to the polls to vote as it is anything else, probably more so. The political motivations are even more obvious by the fact that the lawsuit is exclusively concerned with Obamacare, which has been a Republican target for four years now as epitomized by the fact that the House has voted, on strict party lines, to repeal the law in whole or in part 54 times since they took control of the House in January 2011. If that’s not a sign that this is an entirely political maneuver that has little to do with actual legitimate concerns about the Separation of Powers, I don’t know what is.
The question, in the end, is what Speaker Boehner and the House Leadership will do when it becomes apparent that their lawsuit is going nowhere. At that point, the base is likely to wonder what they’re going to do next, and demanding something more substantial than just symbolism.
For Boehner either it is the worthless lawsuit or an attempt to impeach, which is what the Tea Party folks are clamoring for. I expect it will be both: the lawsuit will be quickly dismissed and then….IMPEACH!
The perfect do-nothing lawsuit for a do-nothing House.
There is much precedent for Administrations being given wide latitude in the implementation of laws in order to smooth the process and avoid necessary problems.
And it’s critically important to note that Obama hasn’t changed any laws…only delayed the start of one aspect or another. He has not made his own laws as the speaker is claiming. That’s what is called a bald faced lie.
How intelligent people can support the Republican party is baffling to me.
@Stonetools:
I think it is more an attempt by Boehner and the leadership to placate the base and tamp down all that impeachment talk, actually.
The question is what happens when the lawsuit accomplishes nothing.
@Doug Mataconis:
“I think it is more an attempt by Boehner and the leadership to placate the base and tamp down all that impeachment talk, actually.”
I tend to agree. However, I expect that there will be a different non-decision than the post does. I suspect that it will slowly progress through the courts, with sufficient dilatory motions and hearings, until they hit the 2016 date that the employer mandate is now scheduled to take effect. At which time the suit is moot. Or in other words, what Kevin Drum says.
@Doug Mataconis: What happens when the court points out that Congress has a perfectly legal method for reining in the President – impeachment. Or will it be so far down the road by then? Are they hoping this happens during the presidential election so they can not only impeach Obama (therefore blunting his effectiveness to campaign for the Democratic nominee) and hurting said nominee by association? Am I giving the Republicans too much credit for forward thinkiing?
Well, if you take into account the belief among Republicans that the law was poorly-designed and self-destructing before March 2014 (since on October 2013 it seemed correct), implementing the law faster would mean a torrent of sudden changes to businesses’ and insurers’ fiscal plans and organizing. It would certainly create some chaos the Republicans could frame as the law’s fault, and create greater momentum for repeal.
If I had to guess, that’s probably what the GOP idea is over winning the lawsuit.
@Doug Mataconis:
Boehner gets sued for being a RINO, of course.
@beth: More realistically, the court can suggest they’re able to rein in the President by passing legislation. But of course that would require they do some work and take some responsibility, so that suggestion would amount to trying to make a joke from the bench.
Why don’t they just vote against the Affordable Care Act again? It’s probably a less expensive means of futile expression and base appeasement.
@Doug Mataconis:
I agree, he is throwing some cheep ground beef to a base that wants a steak. Boehner and the leadership realize what a disaster for the party an unsuccessful attempt at impeachment would be but the rabid tea party base doesn’t care.
@Doug Mataconis:
Doug, why does the Speaker have to propose a resolution to the House to file the lawsuit? Can’t anyone sue anybody for anything? Is it the case that he cannot simply file a lawsuit as Speaker, or is it because he represents the House, he has to have all’s approval? Obviously I’m ignorant of these things.
@Doug Mataconis:
Yeah, I’ve thought this from day #1. Boehner is tossing red meat to the crazies as a way of getting them off their disastrous impeachment obsession.
Once in a while there are Citizens who stand up against this abuse
of the Sovereignty of Our Great Charter. They are rarely found in the United States Senate.
https://www.youtube.com/watch?v=_CiaKzqP77o
(Today we know those untold numbers to be 58,220 and when my friend Steve dies soon at 67, presumably from exposure to Agent Orange, it will be 58,221.)
screw the draft…screw the war
http://www.archives.gov/research/military/vietnam-war/casualty-statistics.html
@Stonetools:
Other possibility: since apparently the president now has the power to unilaterally delay bits of legislation until they personally find it convenient, Boehner’s lawsuit is to get this new status quo “in writing” for the next time a Republican gets elected President.
A lawsuit is not a governing policy. Governing is clearly beyond the House of Representatives.
Yesterday, Mark Levin was saying that if the lawsuit fails to pan out, for whatever reason, it could be interpreted as a judicial endorsement of expansive executive power.
I sure hope that Mark Levin never complains that Judges do not throw out frivolous lawsuits.
@ernieyeball: Did you listen yesterday? It was interesting.
John Boehner opposed ENDA — non-discrimination legislation. Why?
Oh my, not frivolous litigation…the Speaker will not countenance frivolous litigation…no way, no how.
The Republican Party has become a comedy show.
The House GOP thinks they’re Evil Knievel, but they’re more like Super Dave Osbourne.
I got an idea….let’s give these guys a congressional majority. There’s, like, no downside at all.
@Doug Mataconis:
Is it? The Republican leadership has been accomplishing nothing for years now. It doesn’t seem like a question they feel needs answering.
@Pinky: I do not listen to radio gasbags.
@ernieyeball: Well, then, what did you mean by, “I sure hope that Mark Levin never complains that Judges do not throw out frivolous lawsuits”? Do you know his position on that? Or on Boehner’s lawsuit?
There is something missing here. Congress is where legislation is passed, not the White House. All of this talk about the president. They don’t have to wait on the president to pass immigration programs. They can change these things that the president does. Republicans have a majority in the House. If they get a majority in the senate (which is likely) what are they going to do then ? Keep complaining? Sure the president can veto legislation, but then it’s on him.
“Just do something”
When I wrote “I sure hope blah blah blah…” I figured anyone reading it would understand that I don’t know Citizen Levin’s sentiments about Judges throwing out frivolous lawsuits, which would include Boehner’s.
The idea that Boehner’s lawsuit is frivolous came from Mr. Mataconis JD when he wrote “As a legal matter, though, I’m fairly skeptical that it will amount to much of anything.” (OTB June 25, 2014)
Looks like I am not alone:
https://www.google.com/?gws_rd=ssl#q=boehner+lawsuit+frivolous
@ernieyeball: So, you were saying it like, “I sure hope Ed Schultz doesn’t catch a cold” or “I sure hope Rick Perry isn’t allergic to chocolate”. That doesn’t help with the question of why you said it, though.
Response A: Just to piss you off.
Response B: Because I felt like it.
Response C: So now I have to report to you about my motivation when I comment on OTB? I don’t think so.
Take your pick.
@ernieyeball:
I choose D
@ Tyrell
Don’t be holding your breath.
@Grewgills: A wise choice.
@ernieyeball: I keep forgetting that. I should be more dismissive.
@Pinky:
His smart assery aside, I think the point was that this lawsuit is frivolous and that to be consistent Levin would have to be pro frivolous law suit in general if he supported this suit by Boehner. Then again, his comment was mostly smart assery.
Better to be a smart ass than a dumb ass.
Well, if the trolling part was the smart-assery, would the fact that he doesn’t know Levin’s take on the case be the dumb-assery?
Dumb? I am dumb not to listen to the gasbag Levin? Hows that?
@ernieyeball: When it’s what you’re commenting on, yeah. It’s ok to not know about a subject, but if you’re making a comment about it without Googling it first, then it’s dumb. Levin’s a constitutional lawyer, former chief of staff at the Department of Justice. The gasbag did a segment on standing. Aren’t you curious what his position is?
On Hillary Clinton:
He’s your guy Pink. I got no use for him.