After the Republican-controlled House of Representatives has voted dozens of times to repeal Obamacare—only to be ignored by the Democratic-controlled Senate—now House Speaker John Boehner has announced that he will use taxpayer money to file a lawsuit essentially to compel President Obama to enforce all the mandates in the health care law.
In other words, after years of Republicans showing utter contempt for the Affordable Care Act, Boehner is betting that the courts will believe he really wants to help the president implement his signature legislation by pushing him to enforce the employer mandate, which imposes penalties on employers who do not offer health insurance to employees in compliance with the Affordable Care Act.
“The current president believes he has the power to make his own laws — at times even boasting about it,” Boehner said in his statement. “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 speaker continued in his statement. “The House has an obligation to stand up for the legislative branch, and the Constitution, and that is exactly what we will do.”
In her own statement, Representative Nancy Pelosi, the Democratic leader in the House, said the lawsuit was a “legal boondoggle doomed to fail.”
“This lawsuit is just another distraction from House Republicans desperate to distract the American people from their own spectacular obstruction and dysfunction,” Pelosi said.
The House Rules Committee will hold a hearing next Wednesday to consider the legislation that would authorize the lawsuit.
Obamacare initially required that all companies with 50 or more full-time workers offer those employees health coverage. But in July 2013, Obama used executive action to delay the employer mandate until 2015, after employers complained that the mandate would take too long to implement.
While Congress sued President Clinton over issues such as the line-item veto—and Rep. Dennis Kucinich (D-Ohio) sued Obama in 2011 for launching the military operation in Libya—legal scholars say this would be the first time Congress will have sued a president specifically for failing to enforce the law.
But whenever Congress or individual members of Congress has initiated any legal action against the president in the past, the courts have been extremely reluctant to get involved. While conservatives like columnist George Will and the Wall Street Journal editorial page writers have been supportive of the idea of a suit, most scholars expect the courts to be just as dismissive.
“I see this every day now, being covered as if it’s real, as if it’s somehow not a joke,” said Yale law professor Akhil Reed Amar, according to Vox.com. “But can they name a single successful lawsuit in American history that is of close precedent to what they are proposing?” If not, he says, “At a certain point, I get to call Birther-ism. I get to call bulls***t.”
“The lawsuit will almost certainly fail, and should fail, for lack of congressional standing,” writes Harvard law professor Jack Goldsmith.
Even former Bush Department of Justice prosecutor Andrew McCarthy, who has written a book making the case for impeaching Obama, has written that Boehner’s arguments were “either untrue or abject nonsense.”
“Judges are not there to resolve power disputes between the political branches,” he said, pointing out that Boehner utterly fails to establish that political remedies aren’t available to Congress, since they can simply cut off funding or launch impeachment proceedings.
As indicated by Vox.com, the conservative U.S. Supreme Court has frowned on getting involved in such matters in the past, not wanting to set such a dangerous precedent. Last year, Justice Antonin Scalia, perhaps the most conservative justice of them all, wrote in a Supreme Court dissent that the consequences of loosening “standing” requirements—whether Congress has the standing to sue the president—could be severe.
He said that it could result in a system “in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress’s liking.”
“Placing the Constitution’s entirely anticipated political arm-wrestling into permanent judicial receivership does not do the system a favor,” he wrote.
