They’ve been talking about it for weeks and yesterday they finally did it: By a 225 to 201 margin, the Republican-controlled House of Representatives voted to proceed with a lawsuit against President Obama that claims he exceeded his constitutional authority when he made adjustments to Obamacare without congressional approval.
The vote was along the expected partisan lines, though five conservative Republicans voted with Democrats in opposing the lawsuit. No Democrats voted for it.
Both sides were quick with rhetorical attacks following the vote.
“Are you willing to let any president choose what laws to execute and what laws to change?” House Speaker John Boehner said.
“What price do you place on the continuation of our system of checks and balances? What price do you put on the Constitution of the United States?” said Rep. Candice Miller of Michigan, answering Democratic claims that the Republicans were wasting taxpayer money. “My answer to each is ‘priceless.'”
But the president, while delivering a speech in Kansas City, Missouri, treated the Republican actions as something of a political joke.
“Stop being mad all the time!” Obama said. “Stop just hatin’ all the time! C’mon! Let’s get some work done together!”
“They’re mad because I’m doing my job,” Obama said, adding that he still wants to work with Republicans.
Further ridiculing Republicans, the president recalled a bill signing recently that included both Republicans and Democrats.
“And everybody was all pleased,” he said, laughing. “They were all in their suits. And I said, ‘Doesn’t this feel good? You know, we’re doing something. It’s, like, useful.’ … It was really nice. I said, ‘Let’s do this again.’ ”
“I know they’re not that happy that I’m president, but it’s OK,” Obama continued. “I’ve only got a couple of years left, so come on … then you can be mad at the next president.”
Many experts see the lawsuit as Boehner’s attempt to satisfy the radical conservatives in the Republican base and distract them from pursuing impeachment, which most observers agree would be disastrous for the already damaged Republican brand.
So after years of Republicans showing utter contempt for the Affordable Care Act, they are now betting that the courts will believe they really want 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.
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 have 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 lawsuit, 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.
As for the timelines of a lawsuit, Timothy K. Lewis, a former judge in the 3rd U.S. Circuit Court of Appeals who was nominated by former President George H.W. Bush, told Al Jazeera America that with appeals, it would take at least one-and-a-half to two years for the suit to wind through the federal judicial system.
So it might be done just as Obama is leaving office in January 2017.