The 38th time the House Republicans voted to repeal part or all of the Affordable Care Act, they passed the Authority for [Employer] Mandate Delay Act. Of course, the Senate Democrats ignored the bill and the administration would have vetoed it anyway. Passing the Authority for Mandate Delay Act was just one more in a long list of exercises in spite and futility. But it did demonstrate that the will of the House was to delay the Employer Mandate, which is exactly what the Health & Human Services Department did on its own without any authorization from Congress.
Strangely, it was this act by HHS that created the casus belli for Speaker Boehner’s lawsuit (pdf).
I know the arguments, but it's kind of weird that House GOP that has worked so hard to repeal Obamacare is suing Obama for not enforcing it.
— Byron York (@ByronYork) July 11, 2014
Yes, it’s strange, but even more so than Byron York implies. That is because they are suing the president for doing something that they tried, but failed, to make him sign into law. “Knowing the arguments” in this case means that Mr. York understands that there is a principle involved here, which is that the administration ignored the plain wording of the law in order to make the implementation of ObamaCare smoother and less politically fraught. But we’re already explaining stuff, which means that the Republicans aren’t going to be scoring any political points off this. If they’re going to gain any benefit it will have to come from actually winning in court.
In choosing this particular decision by the administration to challenge, the Republicans are hoping to do better than they would challenging, say, the decision not to deport DREAMers. It’s settled law that the administration has the discretion to set priorities when resources are limited, so they can pretty clearly make decisions about whom they are going to focus on deporting since they can’t deport everyone. What the Republicans are going to have to argue in this case is that delaying the Employer Mandate was an abuse of the administration’s discretion that cannot be justified. It may have been something they wanted and that they passed a bill in the House to force, but it wasn’t something the administration had the authority to do on its own.
I’m not a lawyer, but my understanding is that Boehner’s lawsuit must clear two major hurdles. First, he must show that he has standing to sue, and then he must show that HHS abused their discretion. Vox has a bit of an explainer on the legal argument. Passing an authorization to sue through the House is intended to bolster their case for having standing. But the argument is based on the twin findings that the delay in the Employer Mandate literally harmed no one and that it doesn’t rise to the level of an impeachable offense.
Here’s how this works. If the delay in the Employer Mandate actually harmed anyone, then they and not Congress would have the standing to sue. And if the delay was an impeachable offense, then that would be the proper remedy, but since it isn’t an impeachable offense suing is the only possible remedy.
In plain language, they are going to argue that the administration did something that harmed no one and wasn’t a high crime or misdemeanor but that was nonetheless illegal. And they are going to argue that this combination of factors renders them helpless to seek relief, thereby giving them standing.
That’s a lot of hoops to jump through. For starters, it’s pretty much impossible for a court to determine what is and what is not an impeachable offense. An impeachable offense is pretty much whatever the House of Representatives says it is. And the only judge of their determination is the Senate. Beyond that, they’ll have to overcome the administration’s argument that the reporting requirements needed to properly implement the Employer Mandate were not ready to go. Essentially, they have to argue that HHS was legally required to go forward with a part of the law that businesses couldn’t actually comply with. But it seems to me that this is exactly the kind of situation for which the administration deserves to have discretion. It’s hard to see how a judge might draw the line or how they could craft any kind of sane remedy.
It’s unclear whether this lawsuit will quiet the wingnuts.
