5 questions about John Boehner’s lawsuit against Barack Obama

By: Josh Gerstein
July 16, 2014 05:03 AM EDT - POLITICO

The GOP-led House is set to take its first big step Wednesday toward launching a high-profile lawsuit charging President Barack Obama with failing to carry out his constitutional duty to enforce the law.

Republicans have complained about Obama’s actions on issues ranging from immigration to welfare to the minimum wage, but the suit is expected to focus narrowly on the Affordable Care Act and the decision to defer for one to two years a requirement that employers provide health insurance starting in 2014.

The House Rules Committee will debate the merits of the potential lawsuit at a hearing Wednesday morning.

Regardless of what the lawsuit looks like, Obama and his allies are laughing off the litigation, which they believe will make liberals angry and strike swing voters as a waste of time and money on the part of congressional Republicans. “Their big idea has been to sue me,” the president said mockingly during a stop in McLean, Virginia, on Tuesday. “That’s what they’re spending time on — a political stunt that wastes America’s time and taxpayer dollars.”

House Speaker John Boehner has painted the effort in principled terms. “This isn’t about Republicans versus Democrats; it’s about the legislative branch versus the executive branch, and above all protecting the Constitution,” the speaker said last week. “The current president believes he has the power to make his own laws — at times even boasting about it.”

Here is POLITICO’s look at the legal questions surrounding the lawsuit:

1) What chance does it have?

Not much, according to many legal analysts. Even some sympathetic to claims of executive branch overreach say Boehner’s lawsuit is the equivalent of a triple-bank shot.

“It’s a hare-brained idea,” said Stan Brand, a Democrat and former general counsel to the House of Representatives. “I think there’s a case to be made that Obama has exceeded the recent history of executive overreaching, but I don’t know that it’s remediable in court — or should be.”

The key problem for the House to overcome is a legal concept called standing, which requires that the party bringing a suit demonstrate an actual, concrete injury that goes beyond a general interest in seeing the law enforced.

“There’s just no way a court would find that the House of Representatives as an institution has been harmed by President Obama attempting in good faith to implement the ACA,” said Catholic University law professor Victor Williams.

But proponents of the suit insist that the very fact that it’s hard to find an individual injured enough to sue supports the idea that the House can do so. “If we have that kind of system [where no one can sue to enforce the law], the president doesn’t need Congress anymore, all he needs is the pen and the phone — or maybe only the pen,” said Chapman University law school professor Ronald Rotunda.

Even if a judge buys that the House has been injured institutionally, there are a variety of other hurdles, like the courts’ traditional reluctance to entertain questions deemed “political” in nature and the judiciary’s ability to fashion a remedy for Obama’s alleged deviation from the law.

Defenders say even if the House suit dodges all those roadblocks, Obama’s action — or inaction — on enforcing the ACA is well within executive authority. They point to prior cases where presidents or other executive officials have deferred enforcement of new legal requirements, such as a decision by President George W. Bush in 2006 to not penalize seniors for missing a deadline to sign up for prescription drug coverage under Medicare.

“This is a routine feature of implementing complicated laws like the Affordable Care Act. All administrations have done it,” said Simon Lazarus of the Constitutional Accountability Center, who’s set to testify against the suit Wednesday.

2) What’s the best-case scenario for the GOP?

Perhaps the most significant reason not to dismiss the House suit as a sure loser is that other cases the experts have scoffed at in recent years — such as the challenge to Obamacare’s individual mandate and another over recess appointments — have gone all the way to the Supreme Court, resulting in losses or very close calls for the administration.

“I never would have thought, 10 years ago or even five years ago, that recess appointments would ever get litigated at the Supreme Court,” Rotunda said. “If there is a theme here, it’s when it gets to the Supreme Court, the president loses,” the professor said, pointing to a string of defeats at the court for presidents from Richard Nixon to Bill Clinton to Obama on executive power issues.

There have also been signs in recent years that the Supreme Court is more willing to see the judiciary wade into politically sensitive fights.

In 2012, the Supreme Court ruled, 8-1, that lower courts were wrong to bow out of a lawsuit challenging the State Department’s refusal to comply with a law requiring it to enter the word “Israel” to the place of birth on U.S. passports when an American born in Jerusalem so requested.

At oral arguments in the case, Justice Sonia Sotomayor said she was reluctant to allow the president to “ignore” the law.

“If we call this a political question and don’t address the merits, the outcome is that the president is saying that he’s entitled to ignore the Congress. I don’t know what kind of message that sends, but it’s a little unsettling that a court charged with enforcing the laws passed by Congress [is] basically saying we are not going to determine whether this law is constitutional or unconstitutional,” Sotomayor said.

But Justice Antonin Scalia has said Congress doesn’t really need the courts in a fight with the chief executive.

“I would let … them conduct the usual interbranch hand wrestling that goes on all the time, which probably means that if Congress cares enough Congress will win, because … it has an innumerable number of clubs with which to beat the executive,” Scalia said at the same 2011 argument. “Why don’t we just let them go at it?”

Some also see the Supreme Court’s willingness to let the House defend the Defense of Marriage Act at the court last year — albeit unsuccessfully — as a sign it would sustain the House’s right to sue.

Critics of Boehner’s planned lawsuit note that it lacks what both the passport and DOMA cases had at least at some point: an individual American plaintiff who could claim some direct harm from the alleged illegality.

Two district courts have let the House pursue lawsuits in recent years seeking to force executive branch officials to testify or fork over documents, but higher courts haven’t confronted the issue, and it’s not clear whether a suit aimed at mandating enforcement of a law is the same as one seeking to enforce a subpoena.

3) Could the suit backfire?

One odd aspect of the suit is that, if the GOP were to prevail, businesses could be hit with new burdens and costs sooner than they otherwise would. The case could also set a precedent that could come back to bite businesses on a series of other fronts.

Environmental groups, food safety advocates and others routinely go to court when agencies miss deadlines to issue regulations to start enforcing all kinds of laws passed by Congress. If the House suit succeeds, judges might feel emboldened to order agencies to put in place all kinds of measures the executive branch has intentionally or unintentionally delayed — often under pressure from industry.

“It would be a bad thing for business interests traditionally allied with the Republican Party … if the theory is the ‘take care’ clause of the Constitution requires robotic enforcement of every specific statutory deadline,” Lazarus said.

Indeed, administrations of all ideologies often miss all kinds of deadlines, sometimes for many, many years. One report the Treasury Department was required by law to submit to Congress by the end of 2006 is more than seven and a half years late, Bloomberg reported.

Some proponents of the suit also see a perverse downside for liberals if the case fails because that would seem to endorse the idea that a president is free to disregard the law.

“Whenever I meet Democratic members, I say, ‘You will rue the day you helped create the idea that the president has the authority to suspend environmental law and you have nothing to say about that …’ Privately, they agree,” said liberal George Washington University law professor Jonathan Turley, who’s set to testify in favor of the suit Wednesday.

And if Congress can sue the executive branch, why not the other way around? Sustaining a congressional suit against the president would make a suit pointing the other way fair game, some argue.

“You could imagine the president suing the Senate, saying it has the duty to vote up or down on his nominees,” former Clinton administration acting solicitor general Walter Dellinger said. “That’s not the kind of matter courts should be involved in.”

4) The House wins. Then what?

Another complication for the House suit is figuring out what winning would look like.

A judge could agree with the House that the IRS should have started enforcing the employer mandate at the beginning of this year, but then what? If House lawyers can’t tell a judge how he or she can make the executive branch comply with the law, then the suit could be dismissed at an early stage.

While the requirement is now set to kick in for larger employers at the beginning of next year, those with 50 to 100 workers are getting another year’s grace from the administration. Would a judge nix that, too? And if a judge ordered the requirement enforced across the board, would he or she insist that every violator be penalized? Or perhaps set a numerical quota for enforcement?

“Then you’re starting to get into judicial receivership of the executive branch,” Brand said.

Backers of the suit counter that an order requiring withdrawal of the IRS guidance deferring enforcement of the mandate would be enough to get most employers to adhere to the law.

And from a political point of view, a judge’s ruling that Obama had exceeded his authority would be a blow to the president even if that legal conclusion didn’t have much practical impact.

5) How long will this all take?

The political payoff of Boehner’s suit in terms of leveraging anti-Obama sentiment in the GOP for the midterms will come long before the legal payoff, if there is any. It seems doubtful the case will be fully briefed by November, let alone argued or decided in the district court.

One benchmark: The lawsuit the House filed in 2012 to force Attorney General Eric Holder to fork over documents about the response to Operation Fast and Furious is still pending in the district court and unresolved nearly two years later.

“These things are impossible to do quickly,” Brand said.

Given the near certainty of an appeal and a Supreme Court petition, there’s a good chance the suit won’t be definitively decided before the employer mandate is set to kick in next year or even by the time Obama is scheduled to leave office in 2017. That raises the possibility that after the mandate takes effect, the courts may wind up resolving the lawsuit against Obama by tossing it out as moot.

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