Forty-three co-sponsors and counting, according to the Hill. The Stop This Overreaching Presidency (STOP) Act was drafted by Tom Rice and introduced back in December but it’s getting a new look after the double whammy of Obama delaying the employer mandate again and announcing in the SOTU that bypassing Congress is now semi-official White House policy. Pay attention to what Rice says about some unnamed member of the House GOP leadership initially telling him his bill sounds “radical.” It’s not the idea of suing that they have a problem with, I’d bet; the virtue of going through the courts is that, win or lose, the fact that they followed what the public regards as a legitimate, politically neutral process means there’ll be little backlash against the GOP in the midterms for picking this fight. The leadership’s problem, I suspect, is that one of the grounds for suing named in Rice’s bill is Obama’s de facto DREAM amnesty for young illegals two years ago. Boehner doesn’t want “Republicans sue to overturn new protections for undocumented children” headlines this summer. I wonder if leadership would warm up if Rice dropped that part of it.
But what happens if they sue and win on the other grounds, i.e. reinstituting the employer mandate, re-canceling “uncanceled” plans under ObamaCare, and rescinding Obama’s waiver of “workfare” requirements for the states? Only the last of those three would be popular with the public on the merits. Republicans could attach an amendment to Rice’s bill formally repealing the employer mandate just so that, if they win in court, they can claim they tried to get the mandate off of small business’s backs too. The mandate is so unpopular, maybe Reid would agree to take that up in a separate bill and let his most vulnerable Democrats vote for it. (Even Ezra Klein supports repeal, don’tcha know.) But what about the uncanceled plans? If the GOP wins on that, O will turn around and say it’s Republicans, not him, who should be blamed this time for forcing people off their old plans. “They’re so consumed with fighting me,” he’ll say, “that they’re willing to forcibly cancel coverage that I offered to let people keep.” You and I would know what insanely Orwellian spin that is — it’s O-Care that canceled millions of plans, not the GOP — but don’t underestimate the ignorance of the low-information voter. The GOP could, I guess, try to attach another amendment formally restoring all pre-ObamaCare plans, but Reid won’t pass that one. What then? Do you think Boehner’s willing to let O convince ignoramuses right before the midterms that it’s the evil conservatives who want them stuck with expensive ObamaCare plans instead of the old ones he so magnanimously let them hold on to?
One other problem: What about standing? The whole problem with suing O over his executive power grabs is that, in theory, no one can show they’ve been injured by them. Even members of Congress can’t show it. In Raines v. Byrd, decided 17 years ago, the Supreme Court ruled that a group of congressmen had no standing to sue over the Line Item Veto Act after voting against it. If they lacked standing, wouldn’t a group of Republican congressmen lack standing to sue O now? Maybe not: Read this analysis from last month by David Rivkin and Elizabeth Price Foley. The virtue of Rice’s bill is that, if it passed, it wouldn’t be just a random bunch of discontented legislators suing the president; it would be the majority of the House acting in its institutional capacity. And in its institutional capacity, it might be able to show a concrete, actionable injury — it passed ObamaCare, after all, and its legislative commands aren’t being carried out by the executive branch. The most interesting bit in the Rivkin/Foley piece is language they pulled from the DOMA case last year, when SCOTUS found that a third party had standing to defend DOMA even though the DOJ refused. We can’t let the president effectively nullify acts of Congress by keeping them out of court, said the Supremes. Does the same principle apply to the employer mandate? Stay tuned.