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.