Boehner's proposed anti-Obama suit: Why a narrow focus on one Obamacare part? (+video)

House Speaker John Boehner wants to take President Obama to court on the narrow point that he delayed the employer mandate in Obamacare.


House Speaker John Boehner on Thursday released details of his highly anticipated proposed lawsuit against President Obama. It turns out that he wants to take the president to court not on broad grounds of thwarting Congress on many issues, but on the narrow point that Mr. Obama delayed the employer mandate of the Affordable Care Act (ACA).

That’s right. Speaker Boehner wants to sue Obama for not quickly requiring that medium and large US businesses offer health insurance to their employees, as called for under Obamacare. The president, on his own authority, put off enforcing this provision until 2015.

If the suit goes forward – there will be hearings on it next week – then Republicans will be in the position of asking the courts to enforce a provision they don’t like in a law they detest. The House itself voted last year to delay the employer mandate, though the Senate never took that legislation up.

But that’s not the point, Boehner said. He said Thursday that such a specific aspect of a law is something Congress, not the president, gets to decide.

“I get to look at the Constitution once in a while. The Constitution makes it clear that Congress writes the law, and the president takes the oath of office to faithfully discharge the laws that are on the books,” Boehner said.

It’s likely the speaker tailored this proposed suit in such a narrow fashion to present the strongest possible case to federal courts.

Boehner’s biggest legal problem may be just getting judges to agree to hear the case in the first place. They’re generally reluctant to get involved in legislative-executive branch disputes because Congress has more direct ways of influencing White House actions. These include passing bills with specific directions and, yes, impeachment.

(It’s true that as a practical matter at the moment, Congress can’t order Obama around via legislation, because such bills would probably get blocked in the Democratic-controlled Senate. But that’s a matter of politics, not law. It could change if the GOP gains in the 2014 midterms.)

One big reason the courts are hesitant here is because most laws contain a lot of imprecise language. That leaves plenty of room for the executive branch to wiggle around and interpret the bills to its liking. But specific language is another matter. And here, we come back to the employer mandate: The bill, duly passed by Congress, said it should start in 2014. It did not. That may be an illegal flouting of specific congressional direction.

“[T]he recent delays of ACA provisions appear to exceed the scope of the executive’s traditional enforcement discretion,” wrote University of Michigan Law School professor Nicholas Bagley in the New England Journal of Medicine in May.

But that does not make the case a slam-dunk, Professor Bagley added. There are numerous counter legal arguments. The administration can claim that it is allowed great latitude to provide relief to taxpayers struggling with changes in the tax code, say.

In crafting a relatively sharp legal case, Boehner may have created something of a political problem. He has talked about Obama overstepping his constitutionally derived authority in health care, energy, foreign policy, and immigration. So why aren’t those items included?

After all, many Republicans want their party leaders to take on the president directly over what they feel is Obama’s widespread use of near-dictatorial executive actions. That’s resulted in some left-leaning pundits taunting Boehner for his narrow focus.

“[T]he GOP has spent weeks and weeks accusing Obama of unbridled lawlessness, when they didn’t really have the goods,” writes Brian Beutler in The New Republic.

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