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
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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