Will Boehner’s Obamacare Lawsuit Work?

Legal experts question whether the House has standing to sue the president.

WASHINGTON, DC - JULY 10: U.S. Speaker of the House John Boehner (R-OH) answers questions during his weekly press conference at the U.S. Capitol July 10, 2014 in Washington, DC. Boehner spoke on immigration issues facing the U.S. and other matters. (Photo by Win McNamee/Getty Images)
National Journal
Sam Baker
July 14, 2014, 1 a.m.

House Re­pub­lic­ans might have a hard time get­ting the courts to hear their law­suit against Pres­id­ent Obama.

Even if Re­pub­lic­ans are cor­rect on the mer­its, and delays in Obama­care im­ple­ment­a­tion were in­deed il­leg­al — which is an enorm­ous “if” — there’s a de­cent chance they’ll still lose. Leg­al ex­perts, in­clud­ing some con­ser­vat­ives, are skep­tic­al that the House has the right to bring this law­suit in the first place.

And if the courts agree, the suit will nev­er make it far enough to ad­dress­ing the un­der­ly­ing ques­tions about Obama­care delays.

When mem­bers of Con­gress have sued the pres­id­ent in the past, courts have dis­missed those cases for a lack of stand­ing — mean­ing, the law­makers didn’t meet the con­di­tions a plaintiff has to meet to file a law­suit. And it’s not clear that the latest case will fare any bet­ter.

“I’m skep­tic­al of stand­ing”¦ I wouldn’t dis­miss it — just, from what I’ve looked at so far, I don’t see it yet,” said Jonath­an Adler, a law pro­fess­or at Case West­ern Re­serve Uni­versity and a crit­ic of the Af­ford­able Care Act.

To es­tab­lish stand­ing, a plaintiff has to show an in­jury caused by the de­fend­ant. That’s been a prob­lem for mem­bers of Con­gress in the past. Courts have said their polit­ic­al dis­agree­ments aren’t an in­jury for the leg­al sys­tem to ad­dress. On top of that, Con­gress has its own powers to em­ploy when it thinks the ex­ec­ut­ive branch isn’t do­ing what it’s sup­posed to.

But that’s why the House as an in­sti­tu­tion, rather than in­di­vidu­al law­makers, is now su­ing Obama.

(There’s a reas­on the de­cision to sue Obama came first, fol­lowed by the de­cision about what to sue him for: The spe­cif­ics needed to fit the strategy de­vised by a group of con­ser­vat­ive law­yers, in­clud­ing one of the ar­chi­tects of the chal­lenge to Obama­care’s in­di­vidu­al man­date.)

The the­ory here is that, by fail­ing to im­ple­ment Obama­care’s em­ploy­er man­date on the date the law spe­cified, Obama in­jured the House of Rep­res­ent­at­ives’ in­sti­tu­tion­al in­terests. He didn’t carry out the law as Con­gress wrote it, and Con­gress should be able to sue him for it, Re­pub­lic­ans ar­gue.

Ba­sic­ally, this law­suit tries to nav­ig­ate around the many obstacles the Su­preme Court has pre­vi­ously put in the way of let­ting the le­gis­lat­ive branch sue the ex­ec­ut­ive branch. And that could be a hard sell.

“This is not something that’s really been done be­fore.”¦ It is an ag­gress­ive read of the rel­ev­ant cases,” Adler said.

Si­mon Laz­arus, seni­or coun­sel at the lib­er­al Con­sti­tu­tion­al Ac­count­ab­il­ity Cen­ter, said the is­sue of stand­ing is even clear­er.

The Su­preme Court has giv­en the ex­ec­ut­ive branch a lot of lee­way to phase in new re­quire­ments or tem­por­ar­ily hold off en­for­cing reg­u­la­tions in or­der to make things run more smoothly for stake­hold­ers. Laz­arus says that’s pre­cisely what the ad­min­is­tra­tion has done with Obama­care’s em­ploy­er man­date, and that the House’s law­suit is there­fore just a stand­ard polit­ic­al dis­pute un­fit for the courts to re­solve.

“This is a polit­ic­al dis­pute, not a ju­di­cial dis­pute, and the courts will prop­erly leave it to the polit­ic­al branches to sort it out,” wrote Nich­olas Bagley, a law pro­fess­or at the Uni­versity of Michigan.

In a memo to his con­fer­ence, House Speak­er John Boehner also said the Bi­par­tis­an Leg­al Ad­vis­ory Group, the en­tity that is bring­ing the suit, would have stand­ing be­cause no one else could chal­lenge the delays. Em­ploy­ers cer­tainly haven’t been hurt by the delays, and in­di­vidu­al em­ploy­ees would likely have a time prov­ing that an on-time em­ploy­er man­date would have saved them from a par­tic­u­lar in­jury.

“There is no one else who can chal­lenge the pres­id­ent’s fail­ure, and harm is be­ing done to the gen­er­al wel­fare and trust in faith­ful ex­e­cu­tion of our laws,” Boehner wrote.

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