House Votes to Move Forward on Lawsuit Against Obama

Now what?

Speaker of the House John Boehner, R-Ohio, speaks during a ceremony to posthumously present the Congressional Gold Medal for to Raoul Wallenberg, a Swedish diplomat who saved the lives of nearly 100,000 Hungarian Jews during the Holocaust, on Capitol Hill in Washington, DC, July 9, 2014.
National Journal
Matt Berman and Billy House
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Matt Berman and Billy House
July 30, 2014, 2:29 p.m.

The House of Rep­res­ent­at­ives voted Wed­nes­day night to do what be­came in­ev­it­able weeks ago: pro­ceed with a law­suit to sue Pres­id­ent Obama over ex­ec­ut­ive ac­tions re­lated to Obama­care. The vote was split along party lines, with nearly all Re­pub­lic­ans vot­ing in fa­vor of pur­su­ing the law­suit and all Demo­crats op­posed.

This is the first time either the House or Sen­ate as an in­sti­tu­tion has brought a law­suit against a pres­id­ent over en­force­ment of the law. Re­pub­lic­an Sen. Ron John­son of Wis­con­sin did file a law­suit chal­len­ging the pres­id­ent’s hand­ling of con­gres­sion­al health be­ne­fits, but a fed­er­al judge last week dis­missed that suit.

So what hap­pens next? Now, it’s up to Speak­er John Boehner and the House coun­sel for a “des­ig­na­tion” of the ac­tion, mean­ing work will then be­gin with law­yers to fi­nal­ize the lan­guage and leg­al dir­ec­tion of the law­suit, de­cid­ing which ar­gu­ments will have the best chances of suc­cess in court.

Ap­prov­al of the even­tu­al dir­ec­tion and fil­ing of the law­suit will not have to go be­fore a vote of the Bi­par­tis­an Leg­al Ad­vis­ory Group (BLAG), a pro­cess that had been pre­vi­ously set. The out­come of such a vote would likely not have changed the dir­ec­tion of the suit any­way. The BLAG is com­prised of three Re­pub­lic­an mem­bers of House lead­er­ship—the speak­er, ma­jor­ity lead­er, and ma­jor­ity whip—and the two top lead­ers of the Demo­crat­ic Caucus—the minor­ity lead­er and whip.

The BLAG rep­res­en­ted House Re­pub­lic­ans in their ef­fort to de­fend the De­fense of Mar­riage Act be­fore the Su­preme Court, which was un­suc­cess­ful.

But a seni­or Demo­crat­ic aide said Wed­nes­day that the BLAG was “cut out” of the pro­cess of ap­prov­ing this law­suit be­cause “Re­pub­lic­ans were wor­ried about the op­tics of [Minor­ity Lead­er] Nancy Pelosi be­ing in­volved.” 

From there, a fed­er­al judge has to de­cide wheth­er the House has leg­al stand­ing in its case. That ques­tion has law­yers split. For the House to be able to act as a plaintiff in the case, it has to prove that it has in some way been harmed by the de­fend­ant—in this case, the pres­id­ent. Con­sti­tu­tion­al ex­perts—sev­er­al of whom have been called this month to testi­fy at a hear­ing for each side—gave their own con­flict­ing views of wheth­er Boehner’s planned lit­ig­a­tion could pass ba­sic leg­al muster.

Re­pub­lic­ans have so far de­clined Demo­crats’ de­mands to spec­u­late on the po­ten­tial mon­et­ary costs of the suit.

The suit it­self is rooted in the Obama ad­min­is­tra­tion’s de­cision to delay the Af­ford­able Care Act’s em­ploy­er man­date. Al­though it may seem bizarre for John Boehner to push a law­suit be­cause of a delay in Obama­care, House Re­pub­lic­ans are us­ing this as an ex­ample of ex­ec­ut­ive over­reach. As they see it, Obama over­stepped his au­thor­ity by delay­ing the man­date without turn­ing to Con­gress, and as such is not faith­fully ex­ecut­ing the law.

Last Ju­ly, the Obama ad­min­is­tra­tion delayed the em­ploy­er man­date, which was sup­posed to take ef­fect this year, un­til 2015. In Feb­ru­ary, the ad­min­is­tra­tion again delayed the man­date, push­ing it back to 2016 for busi­nesses with 50 to 99 full-time work­ers. The man­date is the re­quire­ment in the ACA that em­ploy­ers with 50 or more full-time em­ploy­ees provide health care or pay a fine.

Sam Baker contributed to this article.
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