Local Blogs

By Tom Cushing

The House Pulls a Boehner *

Uploaded: Jul 31, 2014

What do you call it when the House of Representatives, which has repeatedly voted to repeal ObamaCare, now sues the President for failing to implement it fast enough? In DC, they call it Wednesday. TeaPers call it a good first step. Democratic fund-raisers call it heaven. The New York Times calls it the death of irony, and so far John Q. Public calls it a colossal waste of time. John Q is often right, so let's take a closer look at the likely case, which has yet to be formally filed.

The Lawsuit. In response to the House's unwillingness to move legislation on numerous issues (e.g., immigration, minimum wage), the President promised in his State of the Union address to use his Executive Order (EO) powers to implement certain policy changes that he favors, where he could. He has done so, although by the coarse measure of raw numbers, he has issued fewer EOs than most predecessors. The Executive Branch action on which this lawsuit will be based specifically involves delaying the so-called Employer Mandates of ObamaCare by one or two years.

The Constitution divides governmental powers among its three branches: in purest form, the Congress legislates, the Executive implements and the Judiciary decides cases. This lawsuit will claim that Mr. Obama's reprieve to employers was, in effect, a legislative action. The GOP majority, having already stymied the 'hope and change' agenda by becoming a black hole from which only bile escapes, seeks to defeat even the Administration tinkering promised in the State of the Union message.

The Issues. There are two: one procedural, the other on the lawsuit's merits. The first is whether the House of Representatives has so-called 'standing' to bring this lawsuit to the Judiciary. In more than 200 years of contentious American history, 'separation of powers' cases are exceedingly rare. An ad hoc gaggle of GOP Congressfolk tried it in the 1990s, but failed. This, however, is an official, if thoroughly partisan, act of that body.

The problem is made dicier by the fact that this Mandate delay is what's called a benevolent suspension -- meaning that nobody is hurt by it (perhaps except insurers, whose premium revenues may be thereby delayed. They have not complained, and actual, individual revenue loss is speculative). To most people, that means something like "no harm, no foul", but to lawyers it raises the concern that a check-and-balance in the system may be missing (lest the executive branch be allowed to do remake legislation with some impunity). It creates an "if not the House, then who?" problem for the Courts. Still, this issue gives the courts an easy way to nip this case in the bud if they're so inclined, by simply denying standing.

On the merits, the question will be whether the Prez has so far-overstepped his role that the Courts must intervene. A few points here: generally, the Supreme Court has declined to enter partisan political frays between the other two Branches, and all Presidents tinker with implementation (including Mr. Obama's immediate predecessor). Mr. Bush let seniors off-the-hook for failing to meet a legislatively imposed deadline to file for a drug benefit -- if that's news to you, it's because such acts have been pretty routine in the past, at least prior to the current Dead Bill Era of governance.

There may be some interesting court-politics inversion here, as the arch-conservative Scalia is seen as inclined to let the boys in the Branches duke it out, but liberal Sotomayor has fretted that there Must be a remedy (although there is: impeachment). On the combination of the issues, I just don't think the Supremes want to open this box – on this particular controversy, or as a precedent for the future. I rate it 65 – 35 that the lawsuit fails.

Timing. As the saying goes: 'justice delayed is justice denied,' meaning that timing matters. This case simply cannot reach the Supreme Court before 2016, when the second of the Employer Mandates is already scheduled to go into effect. That makes this exercise a very empty gesture – a 'stunt,' even. The only way I can see it going faster would be if the Administration decides to pull a Br'er Rabbit and move to implement the Mandate faster. Who would most hate that outcome? The GOP's business lobby, which worked overtime to get the delay.

Remedy. Courts are pretty good at picking winners and losers; they are generally lousy at fashioning policy remedies that actually work (remember 'busing?'). If the Courts were to decide that Mr. Obama over-reached, how will it craft a decision-rule to guide the future? What will the proper limit of Executive power be? And if they allow one co-equal branch to sue another, how soon will the Executive sue the Senate to move nominations along, or try to force the House to do anything? It would not take long, I'm guessing.

Precedent Value. Let's assume that the House wins. What implications would that carry for the future? One line of thought is that it would rein-in the contrary inclinations of the next Dem President, assuming the GOP retains the House in 2016. That specific outcome is multiply speculative. What is certain, longer term, is that a win would set the stage for similar litigation any time there's a House or Senate majority that differs from the President. It's a "be careful what you wish for" situation for both Parties -- right now, it's the GOP-as-plaintiff, but later? They could reap the whirlwind.

Further, does throwing routine litigation uncertainty, and delay, into the uber-partisan chaos of contemporary politics really portend good policy for the public? Isn't this stuff better left to majority votes and veto overrides in the immediate term, and to the voters, who can replace over-reachers? Are we really better-off turning it over to 'the lawyers?' The Party that purports to bemoan our litigious society and opposes 'frivolous lawsuits' might take a pause to reflect on such an unelected-pettifoggers-run-amuck scenario.

When you add it all up, this looks like an "error, especially an egregious one." It's dubious on the legal merits, it can't be completed in-time to serve its stated purpose, there's no good, workable remedy available, and it sets-up a bad policy for the future. I have marveled (with some dismay) at the GOP's ability to control the dialog throughout Mr. Obama's terms. They have kept the Dems on their heels throughout that interval. This time, though, I suspect they are the ones who have over-reached – and will badly fray John Q's patience. Mr. Obama's approval percentage may be mired in the low 40s – the one for Congress stands at 13%, and trending south.

* Dictionary reference, just to be clear.