Outside the Beltway

Whatever Happened To That Lawsuit The House Of Representatives Was Filing Against Obama?

It's been three months, but there's been no action on the lawsuit that the House of Representatives said it was filing against President Obama.

Doug Mataconis · Saturday, October 25, 2014 · 9 comments

Over the summer, there was much discussion, and even calls from some quarters on the right, for Congress to consider impeaching President Obama for alleged acts of illegal Executive overreach on issues ranging from the implementation of the Affordable Care Act to actions he has taken in relation to immigration such as the Deferred Act For Childhood Arrivals program, which gives temporary relief to some people who are here illegally but were brought here while they were children. While those calls were dismissed and rejected by Congressional leadership, it seemed apparent that there was no small degree of support for the idea inside the Republican Party itself even if it was opposed by the public as a whole. Largely in response to those calls, the House of Representatives came up with the idea of filing a lawsuit against President Obama based on these alleged acts of Executive overreach. While it was unclear for some time what the basis for the lawsuit would be, the House ultimately settled on a seemingly benign decision to extend the time within which an employer has to comply with the coverage mandate under the Affordable Care Act which the White House had announced in response to concerns that small and medium sized business would have had trouble complying with the original deadline. That lawsuit was authorized before Congress left for its summer recess, and at the time it seemed as though the plan was to have the lawsuit filed at some point during the run-up to the midterm elections so that the GOP could use it as part of their campaign to add to their majority in the House and gain control of the Senate. As it turns out, though, there’s been virtually no action in connection with the case in the three months since it was authorized, lending credence to the theory that the entire exercise was designed to do little more than placate the GOP base:

It takes about 10 minutes to walk from the Capitol to the federal courthouse just down the hill, but House Republicans haven’t managed to make that trip in the four months since they announced they’d be suing the president.

House Speaker John Boehner came out swinging hard last June when he announced that his chamber would take President Barack Obama to court. The suit, charging that the president grossly exceeded his constitutional authority by failing to implement portions of the Obamacare law, was billed as an election-season rallying point for aggrieved Republicans. But days before the midterms the House’s legal guns seem to have fallen silent.

Lawyers close to the process said they originally expected the legal challenge to be filed in September but now they don’t expect any action before the elections.

Some attribute the delay to electoral politics — suggesting that Republicans were worried it could rile up the Democratic base — though the GOP is mum on why the suit has yet to be filed.

Whatever the reason, the delay means the core of the suit could effectively be moot before the Obama administration even has to respond to it in court. The case was expected to center on an employer mandate provision that Obama twice delayed but is now set to kick in for many employers on Jan. 1.

“I thought this was a constitutional crisis and the republic was in jeopardy because Obama overstepped his bounds. Now, they can’t even get around to filing it?” asked former House Counsel Stan Brand, a Democrat. “It, to me, emphasizes the not-serious nature of it.”

A spokesman for Boehner said the date for filing the litigation remains up in the air. “No decisions on timing at this point,” spokesman Kevin Smith said Friday. He declined to comment on speculation about the reasons for the delay.

Some Democrats suspect the filing has been delayed because Boehner’s announcement of the suit over the summerbackfired to some extent, spurring fundraising by Democratic committees. Raising the issue again so close to the election could agitate those in the president’s base who view such a lawsuit as disrespectful and part of an effort to delegitimize Obama.

And Democratic consultant David DiMartino said it could push an even wider swath of the country away from the GOP.

“I think it goes beyond the Democratic base in terms of the Americans who thought this was beyond the pale,” he argued. Republican leaders “are really good at finding really efficient ways to alienate huge swaths of the American public and this is one of those issues.”

Some conservatives, however, see the suit’s postponement until after the election as important to rebutting charges that it’s only about politics.

“After the election, it ought to garner more serious commentary, evaluation and judicial review,” said Todd Gaziano of the Pacific Legal Foundation. “It can have some very helpful consequences for a principle that I think liberals and conservatives should both be concerned about, and that is the president’s unilateral authority to rewrite a statute in dozens of ways.”

In addition, Republicans might not be looking to change the subject while Obama’s approval ratings are so low. His poor image has only suffered further from a series of bad-news stories in recent weeks, including the rise of the Islamic State in Iraq and the Levant and the unexpected diagnoses of Ebola in the U.S. In the process, Obamacare has slipped from the top of the list of GOP arguments for why Democrats need to be kicked out of office.

“I think the lawsuit was always more about politics than principle,” said Matt Parks, a politics professor at New York’s King’s College who is critical of Obama’s executive actions but opposed to suing over them. “The Republican midterm strategy it seems, even going back to the beginning of summer, is to let the president’s unpopularity sink the Democratic ship. Therefore, they’ve been risk averse and are trying to avoid any rhetorical or political missteps.”

By not filing the case, he added, “The lawsuit will not be that all-caps, e-mail blast rallying point for Democrats in this campaign.”

That last line strikes me as little more than after the fact justification to paper over the fact that the lawsuit as authorized was really rather silly to begin with. As I’ve noted before, the premise and ultimately goal of the lawsuit that the House authorized never made any sense to begin with. Leaving aside the question of whether or not the Executive Branch had legal authority to issue the compliance delay that they granted on the employer mandate, and there seems to be a fairly strong case that there was sufficient authority under the law, the effect of that action was to delay implementation of a part of the PPACA, a law that the Republican Party has spent the last four years campaigning against and trying to repeal via more votes in the House of Representatives than I can count at this point. In essence, though, by basing its lawsuit against the President on this action, the Republican House would be asking the Court to make sure that the Affordable Care Act is implemented faster. Given how the GOP’s position on the law, that seems like a contradictory, even bizarre, position for Republicans to be taking at this late date. More importantly, as noted in the linked article, delaying the filing of the lawsuit so long, the GOP has made it even more likely that the entire basis for their claim would be moot long before any Court would get to the merits of the case since the extension that was granted will obviously expire before a Court rules on the matter. That would raise the same kind of mootness issues that resulted in the dismissal of the Tea Party lawsuits against the IRS that I wrote about yesterday.

It is perhaps the recognition of that fact that is causing the delay, because there’s now talk of expanding the basis for the suit:

While early on Boehner said that the suit would focus on a delay Obama ordered in enforcement of the law’s employer mandate, sources say lawyers are now considering expanding the case beyond the originally announced subject because the mandate is likely to soon start to go into effect and because there might be more effective targets.

The employer mandate requirement is set to kick in for large employers in January, although the administration says it won’t enforce the requirement for employers with 50 to 100 employees until 2016. The federal government ordinarily has 60 days to file a formal answer to litigation, meaning the much of the mandate is likely to be in effect by the time anyone has to address the suit in court, let alone by the time the suit is resolved.

The House resolution passed in July authorizing the lawsuit allows litigation on any issue related to Obamacare. Some conservative lawyers would like to see the suit broadened from the employer mandate to cover other aspects of the health care law. Others would like to see litigation aimed at whatever executive action on immigration Obama may take after the election.

“Another fringe benefit of the suit not being filed right now is the authorization might be amended,” Gaziano said.

As it’s currently written, the authorization that was passed back in July would cover any lawsuit related to Executive Branch action concerning Title I of the Affordable Care Act, which is where the majority of the provisions concerning the individual and employer mandates and other insurance related matters are contained, or Subsection B of Title II of the Health Care and Education Reconciliation Act of 2010, which concerns certain amendments to the PPACA’s insurance provisions. If the lawsuit were to be expanded to cover immigration or other issues, it would appear to require a new or amended authorization, and its unclear if the current authorization would remain in effect if no action is taken pursuant to it before the expiration of the current term of Congress. Such an amendment or reauthorization would likely easily pass the House, of course, but it would require addition work by the GOP majority that would thrust back into the public arena a lawsuit that is opposed by a majority of the American public.

Whatever the legal basis for the suit, of course, the lawsuit is unlikely to go anywhere. As I’ve discussed before — see here and here — any House lawsuit against the President would run headlong into the legal reality of the Political Question Doctrine and the fact that Federal Courts have been generally reluctant to entertain lawsuits from Members of Congress that are concerned with what are ultimately political disputes between the Legislative and Executive Branches. Notwithstanding the fact that some conservative legal scholars have attempted to craft a legal argument that argues that Congress as a whole would have a better chance of getting around the Political Question Doctrine than individual Members of Congress, the vast majority of legal scholars who have commented on this issue have agreed that the most likely outcome is that a case like this would be dismissed on those grounds by any Federal District Court Judge, and that any Circuit Court of Appeals would be likely to sustain that ruling. That would mean that the House lawsuit would have to make its way all the way to the Supreme Court just on the issue of whether or not the lawsuit can proceed forward. Even if the Justices accept such an appeal, the odds would seem to be in favor of their sustaining the dismissal and, if they overturned the lower court decisions it would just mean that the case would head all the way back to District Court where there would have to be hearings, and perhaps even a full trial, on the merits of the underlying lawsuit. Given the pace of Federal Court litigation, a District Court ruling on the merits under those circumstances would likely not come until just months before President Obama leaves office, and the case would be moot by the time any ruling from that court got before the appropriate Circuit Court of Appeals.

As I’ve said before, though, this lawsuit was never about whether or not it had a chance of succeeding, or even whether it would ever get a hearing on the merits. It was about scoring political points against President Obama in advance of the midterm elections and placating a Republican Party base that has been to a large degree responsible for stoking the impeachment talk that we’ve seen in the media. In that last regard, the threat of a lawsuit seems to have succeeded to some degree, but one has to wonder how those Republicans will react when they realize that the entire lawsuit was an exercise in smoke, mirrors, and deception.