Boehner: Obama lawsuit will focus on Obamacare enforcement

The resolution that will be introduced in the House is here.

Some had wondered whether the lawsuit would take on immigration law, but it’s the employer mandate:

WASHINGTON — Speaker John A. Boehner’s lawsuit against President Obama will focus on changes to the health care law that Mr. Boehner says should have been left to Congress, according to a statement issued Thursday by the speaker’s office…

Last month, Mr. Boehner announced his intention to seek legislation allowing the House to sue the president over his use of executive actions, a reflection of charges by congressional Republicans that the president has overreached his authority. On Thursday, Mr. Boehner said the lawsuit would specifically challenge the president’s decision to delay imposing penalties on employers who do not offer health insurance to employees in compliance with the Affordable Care Act.


“As I’ve said, this isn’t about Republicans versus Democrats; it’s about the Legislative Branch versus the Executive Branch, and above all protecting the Constitution. The Constitution states that the president must faithfully execute the laws, and spells out that only the Legislative Branch has the power to legislate. The current president believes he has the power to make his own laws – at times even boasting about it. He has said that if Congress won’t make the laws he wants, he’ll go ahead and make them himself, and in the case of the employer mandate in his health care law, that’s exactly what he did. If this president can get away with making his own laws, future presidents will have the ability to as well. The House has an obligation to stand up for the Legislative Branch, and the Constitution, and that is exactly what we will do.”

President Obama unilaterally waived a major part of the Affordable Care Act when he deemed the mandate that employers with more than 50 employees provide health care delayed for a year. The administration later pushed it back again for small businesses, despite the law’s wording requiring it to “apply to months beginning after December 31, 2013.”

There are plenty in the legal community who believe the courts will rule as they have in the past—that a frustrated Congress has no legal standing to sue the President, as it is not materially harmed by the President’s decisions. There are liberal legal experts and some conservative commentators united in their assessment of this as a political stunt (Erick Erickson, among others, prefers the Constitutionally founded option of impeachment). But the resolution above is a first step in a novel strategy to attempt to establish standing.

Legal experts expect the House to face several potential obstacles. While courts have traditionally held that frustrated members of Congress are not allowed to sue the White House, some lawyers believe that if a chamber of Congress authorizes such a lawsuit they may have standing. A successful House vote on the resolution authorizing the lawsuit “helps us to prove standing as an institution,” the senior GOP aide said.

Any lawsuit would be filed through the House General Counsel’s office at the direction of the chamber’s bipartisan legal advisory group. The latter is a five-member panel consisting of the top three leaders in the majority party and top two in the minority. House Republicans similarly used the bipartisan legal advisory group in 2011 to defend the Defense of Marriage Act after the Obama administration said it considered the law unconstitutional.

The Wall Street Journal explained the envisioned strategy in May:

The Washington lawyer David Rivkin and Florida International University law professor Elizabeth Foley suggest a broader approach that doesn’t require legislators to act as individuals. They’re trying to persuade House leaders to mount an institutional challenge to the White House rewrite of ObamaCare’s employer mandate. Here the President is defying the plain language of laws and undermining legislative power. The courts ought to extend standing to the House as an institution to vindicate this injury. Short of impeachment, there is no other way for Congress to defend its constitutional prerogatives and the rule of law.

Earlier this year the Tenth Circuit used this theory to grant legislative standing to a group of liberal Colorado representatives to challenge that state’s taxpayer bill of rights. Last year the Supreme Court also granted standing to Congress’s Bipartisan Legal Advisory Group to defend the Defense of Marriage Act…

If the executive branch is allowed to rewrite or suspend statutes, it is harder and in some cases impossible for voters to know which parties and spheres of the government to hold responsible. Political accountability is undermined.

The legal establishment will dismiss Messrs. Johnson and Rivkin as cranks with no hope of success, but it has been wrong before. The President thinks he can disregard the laws, but judges are paid to defend them.

The White House responds:

“It is disappointing that Speaker Boehner and Congressional Republicans have decided to waste time and taxpayer dollars on a political stunt. At a time when Washington should be working to expand economic opportunities for the middle class, Republican leaders in Congress are playing Washington politics rather than working with the President on behalf of hardworking Americans,” the White House press secretary said in a statement.