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.
Only impeachment will satisfy the wingnuts. If Satan himself is in office, you don’t censure him, you don’t sue, you impeach.
*Unless Impeachment means a GOTV for Democrats.
Remember all the voter suppression laws passed and mostly struck from 2010-2012 that got a lot of people out voting in 2012?
This is one way to keep the rabble sufficiently enraged without being a clear GOTV campaign for Democrats, by Republicans.
Yeah, that idea in the Kansas City Star that this lawsuit will “calm Tea Party impeachment talk” is pure delusion.
There is a good probability that this lawsuit is going to down in very high profile flames. The chances that Boehner comes out of this with any life left in him as Speaker seems to me to be near zero. But when he loses, it will only be because The Evil Kenyan Tyrant has infiltrated every nook and cranny of the judicial process. It will just be another conspiracy on top of an already huge pile in the minds of the right wing. They will simply double or triple down once again. And we will be plumbing the depths of ever more insanity. No one can predict how far down they will go.
The chances that Boehner comes out of this with any life left in him as Speaker seems to me to be near zero.
As we’ve seen already, his caucus is even more doltish. Orange Julius will remain speaker if only because the Teahadists are so incompetent.
I very rarely tell Obama what to say — he’s good at it, look at the job he got with it — but I will deviate from my policy this once.
“Article II, section 4.
Knock yourself out.
Otherwise it’s all bullshit.
Go large or go home.
Thank you, and God bless America.”
Absolutely. But don’t forget Article I, section 2.
The tolerance level of Rep to be suckered is just astonishing. Apparently all they need to keep them in line is a chain email in their box each morning that quickly redirects their attention from the yesterday’s failed conspiracy towards new stupid.
I’d surely be interested though in watching Palin discuss the merits of this impeachment with even Jeff Toobin. I’ve noticed her latest facial work has finally achieved a mouth that is squared up as if to accommodate slipping in (or is that spewing out?) a bumper sticker.
Without looking at anything, I don’t see how they have standing. To have standing, you have to show that you suffered actual harm or are at risk of suffering actual harm from the defendant’s actions. It’s why I can’t bring a lawsuit on behalf of a total stranger, three states away, who got struck by another stranger’s car. The idea that anyone in Congress was harmed by this, in a way that the law actually cares about, would require some very imaginative thinking.
Particularly odd is that all the Republicans who voted on the ACA voted against. So they say they’re being harmed by the President not fully implementing a law they opposed and since have repeatedly tried to repeal? That’s a really strange position. If they’d voted for it maybe they’d have a case.
It’s also weird because Republican healthcare proposals inevitably involve tort reform.
Sure, this lawsuit really shouldn’t have much merit, and thus should be thrown out, but the wild card is whether the courts will act in a sane/nonpartisan way here. I’d like to believe that they would, but given recent evidence, I’m not really sure of that.
If republicans have done the math and determined that they’re facing an uphill struggle to win the presidency in the foreseeable future, then it’d be in their obvious interest to weaken the office and eliminate options for the executive branch to go around the republican dead-enders in the legislature (note the recent recess appointment ruling).
So, it might be a hail mary of sorts, but if they could get a favorable supreme court ruling that tips the balance more towards congress, that’d serve their ends quite well. The supreme court has shown that it’s not afraid of breaking previous behavioral norms and legal precedents when they’re ideologically inconvenient, after all.
Dismissed due to standing/Political Question at District Court level.
Appealed to keep the rabble enraged and granted cert.
Remanded to District Court with order to dismiss.
*Assuming the seditionists on the court don’t consider Obama’s Executive order akin to the 1933 Enabling Act. With the current asshats on the court, it’s anyone’s guess.
Steve Benen has a good summary:
So the pro-business, anti-tax party is suing the administration for giving businesses a tax break.
Of course it makes no sense whatsoever. I remember enough from my law school con-law class days to know that, if the standard is prior court precedent, this suit doesn’t pass the straight-face test and is dismissed on summary judgment. Unfortunately, with all the right-wing activist judges appointed since 1980 there’s no telling what mischief the Republicans will manage. I was shocked that the ACA challenge made it all the way to the Supremes. Never expected them to grant cert. Of course I was surprised by Bush v. Gore. Now all bets are off.
What makes this possible lawsuit funny is that there will be BUSINESSES that will file amicus curiae briefs on the side of Obama to continue delaying the mandate.
Let that sink in for a minute.
Pyrrhic victories are the best the Republicans can get with this lawsuit, assuming the USSC isn’t corrupt enough to give cert to a lawsuit that not only doesn’t have an injured plaintiff with standing, but also clearly qualifies as a political question best left to the political process (impeachment / election).
I mean, first off, enforcing the law is entirely within Article II powers, never mind the issue of what is and isn’t in the discretion of the executive.
Secondly, who the hell is going to enforce a remedy by the USSC? The Supreme Court can’t tell the President to overwrite an Executive Order, as they would be directly interfering with another branch of the Federal Government that also goes to the…question…of how that political branch interprets its own powers.
If the House wants to argue that Obama is “violating the law”, then they already know how to remedy the situation – Impeachment.
The closest thing to a lawsuit that makes any sense would be a writ of Mandamus…but again, inherent in that is the Supreme Court interfering with the executive branch’s interpretation of the constitution.
Of course, Impeachment = GOTV for Democrats. Which is why we’re going to watch the batshits continue their record streak of non-governance and theatre. It keep the PigPeople’s salivary glands running while not being a very loud GOTV call to Democrats.
Easy to forget how long the “Whitewater” investigation dragged on until Starr found an unrelated issue on which he could set up a perjury trap for Clinton. All those years of coming up with nothing-burgers satisfied and fueled the anger of RWNJs and they were overjoyed to find something with which they could pounce on Clinton for.
Sad that this used up all the national political oxygen and the public missed Clinton’s bipartisan repeal of Glass-Steagall.
Democrats offer crusty, stale bread.
Republicans offer circuses.
And round and round we go.
First, he must show that he has standing to sue, and then he must show that HHS abused their discretion.
I believe that they believe that they gave Boehner standing by passing a resolution that intends to give him standing. I bet someone took a good look at Goldwater v. Carter, which is why they did the resolution first.
Ultimately, Boehner is asking the court to either
a)give a legal opinion on whether Obama’s interpretation is correct. To me, this is a clear non-justiciable issue. You don’t ask courts for legal opinions, you need to prove standing and actual damages that require a remedy.
In this case, Boehner could perhaps argue that by not enforcing the mandate, employees are being harmed in fact. Which would be fucking priceless, really. Boehner is arguing that to deny employees health insurance harms them.
I’m not sure if it’s 11th dimensional chess or the Republicans are just that fucking stupid.
b)force Obama to overwrite an Executive Order (executive interpretation of the law) and do something that is not in the purview of the USSC. POLITICAL QUESTION.
Goldwater v. Carter is a relatively decent case that can be used to see how precedent of Political Questions have been used in the past.
The major difference is the resolution that the House passed that will distinguish it from Goldwater v. Carter, but the issues are relatively similar. Notice that Rehnquist’s opinion in that case is that:
Replace “foreign relations” with “domestic law enforcement”, and replace “Senate or Congress” with House of Representatives”.
Seriously, there are way better sources of analysis, but to me, this potential lawsuit should be thrown out at the District Court level, and after Appeal and (maybe granted cert) remanded to the District Court to be dismissed. Again.