What Happens If Boehner’s Lawsuit Succeeds?

Experts are split over whether Obamacare delays were legal.

Speaker of the House John Boehner, R-Ohio, answers questions during his weekly news conference on Capitol Hill, May 8, 2014 in Washington, D.C.
National Journal
Sam Baker
July 17, 2014, 1 a.m.

House Re­pub­lic­ans might have a point about Obama­care’s em­ploy­er man­date — they just can’t do much about it by su­ing the pres­id­ent.

The House is plan­ning to sue Pres­id­ent Obama (and, more to the point, the IRS) over delays in the health care law’s em­ploy­er man­date. It took the first of­fi­cial step in that dir­ec­tion Wed­nes­day, with a hear­ing in the House Rules Com­mit­tee over a res­ol­u­tion to au­thor­ize the law­suit.

As a whole, the leg­al world is pretty skep­tic­al of House Re­pub­lic­ans’ plan, largely be­cause leg­al ex­perts from both sides of the aisle doubt the House can clear a key pro­ced­ur­al hurdle.

But what if it can? Leg­al ex­perts are much more di­vided over the strength of the un­der­ly­ing case against the ad­min­is­tra­tion’s delays. Even some al­lies of the Af­ford­able Care Act say Re­pub­lic­ans have a sol­id ar­gu­ment that the delays were il­leg­al, while oth­ers fear the case could strip fu­ture pres­id­ents of ba­sic powers.

“I think it would make gov­ern­ment un­work­able,” said Si­mon Laz­arus, seni­or coun­sel at the lib­er­al Con­sti­tu­tion­al Ac­count­ab­il­ity Cen­ter.

Laz­arus said delays in the em­ploy­er man­date are no dif­fer­ent from any oth­er ad­min­is­trat­ive delay in im­ple­ment­ing new laws, which are myri­ad. The Su­preme Court has pre­vi­ously ruled that fed­er­al agen­cies can use their own dis­cre­tion about how they al­loc­ate their fi­nite re­sources, and agen­cies are also gen­er­ally able to phase in new re­quire­ments as a way of mak­ing life easi­er for reg­u­lated in­dus­tries and tax­pay­ers.

Ar­guing that Obama didn’t have the au­thor­ity to delay the em­ploy­er man­date would im­plic­ate a host of oth­er delays, Laz­arus said.

He poin­ted to past in­stances in which the IRS has offered “trans­ition re­lief” to phase in new re­port­ing re­quire­ments. The En­vir­on­ment­al Pro­tec­tion Agency has also slowed the re­lease of new reg­u­la­tions while it gathered more sci­entif­ic evid­ence and gave reg­u­lated in­dus­tries more time to come in­to com­pli­ance — delays that be­nefited the busi­ness in­terests with whom Re­pub­lic­ans are tra­di­tion­ally aligned.

“I don’t read­ily see a way of dis­tin­guish­ing all of those things,” Laz­arus said.

But oth­ers aren’t so sure.

Nich­olas Bagley, a law pro­fess­or at the Uni­versity of Michigan, said Boehner’s un­der­ly­ing com­plaint about em­ploy­er-man­date delays seems to have some mer­it. Past ex­amples of “en­force­ment dis­cre­tion” aren’t quite com­par­able to delays in the em­ploy­er man­date, he said.

Bagley drew a dis­tinc­tion between agen­cies fail­ing to meet their own dead­lines versus ig­nor­ing stat­utory re­quire­ments.

The Af­ford­able Care Act said em­ploy­ers have to provide health in­sur­ance to their em­ploy­ees or pay a fine, and that re­quire­ment took ef­fect Jan. 1, 2014. So, as crit­ics of the delays see it, a tax li­ab­il­ity kicked in Jan. 1 and is in place today, even if the IRS isn’t en­for­cing it.

The reg­u­la­tions EPA slow-walked didn’t work that way, Bagley said: There, Con­gress dir­ec­ted the agency to write reg­u­la­tions, and new en­vir­on­ment­al stand­ards didn’t take ef­fect un­til those reg­u­la­tions were is­sued. So, while it’s true that EPA missed Con­gress’s dead­lines, it was a dead­line im­posed on EPA — not on the people EPA reg­u­lates.

“There’s a big dif­fer­ence between an agency fail­ing to hit a dead­line for do­ing something on its own “¦ and it’s an­oth­er thing al­to­geth­er for an agency to waive a dead­line for private in­di­vidu­als,” Bagley said.

Laz­arus, on the oth­er hand, said the GOP is over­sell­ing the ad­min­is­tra­tion’s ac­tions. If it had said it nev­er in­ten­ded to im­ple­ment a policy Con­gress passed, sure, that would be il­leg­al, he said. But this was simply a delay — one de­signed to make sure the policy could be im­ple­men­ted well, in the long run.

“This is not a re­fus­al to en­force, or a de­cision not to en­force,” he said. “It is a de­cision about phas­ing in en­force­ment.”

The IRS has delayed the em­ploy­er man­date twice. The first one, an­nounced in 2013, was an across-the-board delay, for every­one, de­signed to give em­ploy­ers more time to come in­to com­pli­ance with the new policy and to up­date their re­cord-keep­ing sys­tems.

And the White House ap­peared to give it­self some leg­al wiggle room on that delay. It tech­nic­ally only delayed a re­port­ing re­quire­ment for em­ploy­ers, which wasn’t tied to the Jan. 1 dead­line. That delay made the man­date it­self un­en­force­able, but by the let­ter of the law, it didn’t con­flict with a stat­utory dead­line.

Bagley said he’s skep­tic­al of that ra­tionale — trans­ition re­lief is de­signed to give a reg­u­lated group more time to come in­to com­pli­ance, and the em­ploy­er man­date had been on the books for three years by the time it was first delayed. But it’s an ar­gu­ment the ad­min­is­tra­tion could make.

The second delay is harder to jus­ti­fy, at least us­ing the tra­di­tion­al ra­tionale for trans­ition re­lief, Bagley said. Earli­er this year, the White House said it would delay en­force­ment un­til 2016 for mid­sized em­ploy­ers. Lar­ger firms have to com­ply in 2015, but they have to cov­er only 70 per­cent of their full-time work­ers that year, and 90 per­cent after that, to avoid pen­al­ties. The law it­self calls for 100 per­cent cov­er­age.

Al­low­ing em­ploy­ers to cov­er few­er em­ploy­ees doesn’t seem like a plaus­ible re­sponse to re­port­ing or re­cord-keep­ing re­quire­ments, Bagley said.

“The second round of delays, it’s ex­tremely dif­fi­cult to see how they could be jus­ti­fied on that basis,” he said.

In short, Boehner might be onto something — if Con­gress im­posed a spe­cif­ic tax li­ab­il­ity on a spe­cif­ic date, and the IRS simply isn’t en­for­cing it for two years, and then only part of the way, there’s at least an ar­gu­ment to be made that the delays aren’t leg­al, Bagley said.

But that doesn’t mean Boehner’s law­suit will ac­com­plish much.

For starters, by the time it works its way through the courts, the em­ploy­er man­date will prob­ably be in ef­fect.

Wal­ter Del­linger, a former act­ing so­li­cit­or gen­er­al, test­i­fied Wed­nes­day that he didn’t think the case could make it to the Su­preme Court be­fore early 2016, mean­ing a rul­ing wouldn’t come be­fore June 2016. The man­date would already be in ef­fect by then, as­sum­ing it isn’t delayed fur­ther, so a rul­ing or­der­ing the IRS to im­ple­ment it wouldn’t be es­pe­cially sig­ni­fic­ant.

(Plus, Re­pub­lic­ans will pre­sum­ably be more fo­cused on Hil­lary Clin­ton by then and less mo­tiv­ated to im­peach Obama, which is what this is about in the first place.)

And that’s as­sum­ing the law­suit can ac­tu­ally make it through the courts, which is a long shot. Al­though Bagley is skep­tic­al of the man­date delays, he says it’s un­am­bigu­ously clear that the House doesn’t have the leg­al stand­ing to sue Obama. The case should be dis­missed without a rul­ing on the delays’ leg­al­ity, he said.

Del­linger and Laz­arus also test­i­fied Wed­nes­day that the House lacks stand­ing. Del­linger warned that a de­cision al­low­ing this law­suit to pro­ceed would open the floodgates for Con­gress and the pres­id­ent to take their polit­ic­al dis­putes to court — something the Su­preme Court has act­ively tried to avoid.

Some con­ser­vat­ives agree on the stand­ing is­sue.

“I think that makes it a dif­fi­cult case; “¦ it’s not clear how a dis­pute over en­force­ment of the law ne­ces­sar­ily in­jures the House,” said Jonath­an Adler, a law pro­fess­or at Case West­ern Re­serve Uni­versity.

What We're Following See More »
STAFF PICKS
When It Comes to Mining Asteroids, Technology Is Only the First Problem
2 days ago
WHY WE CARE

Foreign Policy takes a look at the future of mining the estimated "100,000 near-Earth objects—including asteroids and comets—in the neighborhood of our planet. Some of these NEOs, as they’re called, are small. Others are substantial and potentially packed full of water and various important minerals, such as nickel, cobalt, and iron. One day, advocates believe, those objects will be tapped by variations on the equipment used in the coal mines of Kentucky or in the diamond mines of Africa. And for immense gain: According to industry experts, the contents of a single asteroid could be worth trillions of dollars." But the technology to get us there is only the first step. Experts say "a multinational body might emerge" to manage rights to NEOs, as well as a body of law, including an international court.

Source:
STAFF PICKS
Obama Reflects on His Economic Record
2 days ago
WHY WE CARE

Not to be outdone by Jeffrey Goldberg's recent piece in The Atlantic about President Obama's foreign policy, the New York Times Magazine checks in with a longread on the president's economic legacy. In it, Obama is cognizant that the economic reality--73 straight months of growth--isn't matched by public perceptions. Some of that, he says, is due to a constant drumbeat from the right that "that denies any progress." But he also accepts some blame himself. “I mean, the truth of the matter is that if we had been able to more effectively communicate all the steps we had taken to the swing voter,” he said, “then we might have maintained a majority in the House or the Senate.”

Source:
STAFF PICKS
Reagan Families, Allies Lash Out at Will Ferrell
2 days ago
WHY WE CARE

Ronald Reagan's children and political allies took to the media and Twitter this week to chide funnyman Will Ferrell for his plans to play a dementia-addled Reagan in his second term in a new comedy entitled Reagan. In an open letter, Reagan's daughter Patti Davis tells Ferrell, who's also a producer on the movie, “Perhaps for your comedy you would like to visit some dementia facilities. I have—I didn’t find anything comedic there, and my hope would be that if you’re a decent human being, you wouldn’t either.” Michael Reagan, the president's son, tweeted, "What an Outrag....Alzheimers is not joke...It kills..You should be ashamed all of you." And former Rep. Joe Walsh called it an example of "Hollywood taking a shot at conservatives again."

Source:
PEAK CONFIDENCE
Clinton No Longer Running Primary Ads
2 days ago
WHY WE CARE

In a sign that she’s ready to put a longer-than-ex­pec­ted primary battle be­hind her, former Sec­ret­ary of State Hil­lary Clin­ton (D) is no longer go­ing on the air in up­com­ing primary states. “Team Clin­ton hasn’t spent a single cent in … Cali­for­nia, In­di­ana, Ken­tucky, Ore­gon and West Vir­gin­ia, while” Sen. Bernie Sanders’ (I-VT) “cam­paign has spent a little more than $1 mil­lion in those same states.” Meanwhile, Sen. Jeff Merkley (D-OR), Sanders’ "lone back­er in the Sen­ate, said the can­did­ate should end his pres­id­en­tial cam­paign if he’s los­ing to Hil­lary Clin­ton after the primary sea­son con­cludes in June, break­ing sharply with the can­did­ate who is vow­ing to take his in­sur­gent bid to the party con­ven­tion in Phil­adelphia.”

Source:
CITIZENS UNITED PT. 2?
Movie Based on ‘Clinton Cash’ to Debut at Cannes
2 days ago
WHY WE CARE

The team behind the bestselling "Clinton Cash"—author Peter Schweizer and Breitbart's Stephen Bannon—is turning the book into a movie that will have its U.S. premiere just before the Democratic National Convention this summer. The film will get its global debut "next month in Cannes, France, during the Cannes Film Festival. (The movie is not a part of the festival, but will be shown at a screening arranged for distributors)." Bloomberg has a trailer up, pointing out that it's "less Ken Burns than Jerry Bruckheimer, featuring blood-drenched money, radical madrassas, and ominous footage of the Clintons."

Source:
×