House Finally Files Pointless Lawsuit Against Obama

After many months of claiming they were going to sue President Obama without specifying what they were going to sue him for, exactly, the House Republicans have finally gotten around to filing a suit that will almost certainly be dismissed quickly. The Washington Post outlines some of the reasons the suit will fail:

Boehner’s lawsuit will seek to challenge Obama’s unilateral decision to delay the enforcement of the Affordable Care Act’s employer mandate requiring all large businesses to provide employee insurance starting in 2014. Boehner argues “the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it.”…

The courts have made it evident through precedent that they do not want to settle inter-branch disputes that can be remedied through legislative action. Congress has to establish that it cannot stop or remedy executive actions through legislation. Additionally, Congress must show it has made a previous attempt to address the executive action (see Goldwater v. Carter and Kucinich v. Obama). Evidence must be presented that any failures are not simply a result of an inability to overcome political opposition to potentially effective remedies.

Although Congress has made no attempt to legislatively reverse Obama’s deadline changes, Boehner will likely argue that any such attempts would be unable to effectively constrain executive implementation of the ACA. It is unlikely that courts will be swayed by such an argument…

In the event of executive overreach, there must be clear remedies that the courts can provide. For example, President Truman issued an executive order to seize and operate steel mills in the face of a strike during the Korean War. The courts remedied this executive action by issuing an injunction to halt Truman’s unilateral overreach (Youngstown Tube and Sheet Case).

It is unclear what remedy would be available to the courts in Boehner’s case. An immediate order to enforce the mandate would be logistically infeasible. If the case were to be heard by the courts after January 2015, the mandates would already be in place.

Although Boehner’s lawsuit is not the perfect vehicle to counter Obama’s unilateral actions, the larger point remains that legal action is an ineffective means for Congress to check presidential power. Regardless of the issue, Congress will have a difficult time adhering to the legal requirements outlined above.

The one fascinating aspect of all of this is that the new attorney in the case, the third one hired by Boehner, is Jonathan Turley. Turley is a liberal law professor and a very good one, but he has been a staunch critic of Obama on civil libertarian and executive power grounds (as have I, when it’s clear, as it often has been, that the president has violated the constitution). He’s a very smart legal scholar and he must know that this suit has very little chance of even getting past a motion to dismiss or motion for summary judgment, much less to actually succeed. I’m going to assume that he is doing this primarily to draw attention to the continual expansion of government, which is in and of itself a laudable goal even if this lawsuit is a rather futile means of doing so.

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  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Although Congress has made no attempt to legislatively reverse Obama’s deadline changes…

    Wrong. To be safe they tried to repeal the whole thing. A bunch of times.

  • Jared James

    That may actually be a justiciable question, and they may make it past standing, but I agree the chances are slim. When and how to enforce the law is and has effectively always been without the Executive purview, and Congress can a) complain, b) amend the law, or c) exercise the power of the purse (most effective) but suing to effectively moot the executive power to interpret is a pretty weak fourth option.

  • Jared James

    Let’s all just pretend I typed ‘within‘ so that first sentence makes sense.

  • http://drx.typepad.com Dr X

    In fairness, they all wear flag lapel pins and carry pocket Constitutions. I don’t see what else they could do legislatively to stop Obama.

  • http://howlandbolton.com richardelguru

    Jared,

    I re-read the first sentence three or four times before moving on to the second one. Silly me!

  • Stevarious, Public Health Problem

    Congress has to establish that it cannot stop or remedy executive actions through legislation.

    I think they could make a pretty strong argument that they actually can’t do this, due to the current office-holders’ combined incompetence and intransigence.

    But maybe they’re not quite ready to so openly admit this?

  • busterggi

    Stevarious, even if they were ready I doubt they’d know how to do so.

  • eric

    Even if successul, this seems like something of an own goal. Boehner and the GOP ultimately want the ACA to disappear. But if they win this suit, the courts will just tell Obama to enforce its provisions on large businesses faster than he otherwise would.

  • Doc Bill

    The Rebooblicans have been howling at the moon for years how the lawless Prez is shredding, burning, ignoring, laughing at, etc the Constitution, yet delaying the implementation of a mandate is the best they can come up with? I think that Boener knows he’s a laughing stock but he still gets paid so why care.

  • Crimson Clupeidae

    I’m going to assume that he is doing this primarily to draw attention to the continual expansion of government, which is in and of itself a laudable goal even if this lawsuit is a rather futile means of doing so.

    I disagree with this bolded part. Certain aspects of government can be improved or even eliminated, but getting a ‘smaller’ government isn’t automatically better.

  • http://www.facebook.com/den.wilson d.c.wilson

    Stevarious, I don’t think “we’re too incompetent to do our job properly” is going to fly as a legal argument.

  • http://dontlinkmebro F [i’m not here, i’m gone]

    Boehner’s lawsuit will seek to challenge Obama’s unilateral decision to delay the enforcement of the Affordable Care Act’s employer mandate requiring all large businesses to provide employee insurance starting in 2014.

    Oh my, have your cake and eat it too, Republicans. ROFL. (Actually, a fleet of black UN ROFLcopters is required here.)

  • eric

    Stevarious:

    I think they could make a pretty strong argument that they actually can’t do this, due to the current office-holders’ combined incompetence and intransigence

    Sure they could. Pass a law that says “the exception for large business is hereby removed. The president must ensure all large businesses are compliant by December 31, 2014.”

    They haven’t bothered trying that because (a) they are utterly insincere about wanting ACA enforced on large businesses, (b) if they did, the courts would just say ‘we arent’ going to rule while the political process is working its way through’ (because remember, the Senate would have to pass a similar law and then it would have to go to committee, then get signed). and related (c) this lawsuit is really entirely about political optics – about the Republicans making their base (more) angry at Obama and trying to portray themselves as victims. Which is enormously ironic now that they have control of both houses (or will be, in January).