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.