As you may know, on a pure party-line vote, the House of Representatives voted to sue President Obama over the enforcement of the Affordable Care Act, otherwise known as Obamacare. This vote raises two questions: (1) What is the suit about?; and (2) What is the legal authority to do so? There have been numerous suits brought by members of congress before, but this is the first time either the House or the Senate has institutionally sued the president.
Ostensibly, the suit against President Obama specifically relates to his delay in 2013 of the employer mandate. House Speaker Boehner has argued that the President, by extending the employer mandate deadline, created his own law without a vote from Congress. The suit would be filed by Boehner on behalf of the House of Representatives. Suit would be authorized by a majority vote of the Republican controlled “Bipartisan Legal Advisory Committee” comprised of three Republican and two Democratic Representatives. Suit would be filed in Federal Court in Washington, DC, and could eventually be appealed up to the Supreme Court.
The hurdle facing the Republican lawsuit, is that suits brought by members of Congress against Presidents have been dismissed in the past on the issue of standing. Basically, the issue is that courts refuse to step in where the plaintiff cannot articulate any actual harm he or she experienced that was caused by the defendant (in this case the President). Courts have been hesitant to take these cases because of the inherent mechanisms within Congress available to check the President’s power, including impeachment (although in this case, Boehner acknowledges that President Obama’s actions do not rise to the level of impeachability). While the Republican lawsuit will advance some clever legal theories on how to get around the standing issue, time will tell whether they are successful. If successful, however, where the courts decide that Congress does in fact have standing to sue the President, the presidency will be weakened and the Congress and the courts will be strengthened.
When asked about the pending lawsuit, Yale Law Professor Akhil Reed said, “I am doubtful that merely because you’ve waived or extended some deadline that you’ve done something illegal.” Where the Constitution calls on the President to faithfully execute laws, Professor Reed points out: “Who do you trust to make Obamacare work? Obama, or the guy who’s voted against it 3,000 times who doesn’t want it to work.” (See http://www.vox.com/2014/7/30/5953325/house-of-representatives-sues-obama)
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