The Lawsuit

August 2, 2014

I’ve been involved in hundreds of lawsuits. Never in one as silly, though, as the one have we’ve all been hearing about:  House of Representatives v. Obama.

I’ve been pretty quiet about this fiasco the Republicans in the House of Representatives plan to foist on us. Everyone has a limit, though, and I’ve reached mine. Alas, Ms. J tells me I must be civil, and that George Carlin’s Seven Dirty Words are OFF LIMITS! (BTW, the shtick is definitely dated.) So, here’s one link from Huffington Post, GOP Admits it’s Hypocritical To Sue Obama Yet Urge Him To Act Alone On Border Crisis. Before you go all “he’s quoting liberals,” read the piece. It quotes two pretty experienced Republican House members, it’s balanced, and it sums up the situation well!

Now, about the lawsuit. Media reports say the House intends to argue that President Obama lacked authority to extend the deadline, twice, for the employer mandate under the Affordable Care and Patient Protection Act. Here’s H. Res. 676, the authorizing resolution. It’s much more open and unclear about how President Obama acted wrongfully.

If the suit ever gets filed it will be filed in U.S. District Court, probably in Washington, D.C. Rules apply. The main ones are set forth in the Federal Rules of Civil Procedure, but there are some statutes and common law principles that also apply. Oh, and the judge runs the show, not the parties. (“What’s the difference between a federal judge and G-d? G-d doesn’t think he’s a federal judge!” Yes, you get it!)

So what about these rules? First, federal courts are courts of limited jurisdiction. There must be an issue related to the Constitution or a federal statute, or the parties must reside in different states. That’s the short-hand version, and it’s probably not an issue here.

Second, there is the matter of standing. In federal court the suing party must be able to allege that it has suffered a direct injury for which the court can provide a remedy. Otherwise, case dismissed. So, the House must demonstrate:  (a) an injury to it on account of President Obama’s extensions of the employer mandate start date; and (b) that the court can provide relief.

Well, has the House been harmed? No. Never mind the politics or principles; how did extending the start date twice harm the House of Representatives? [Silence] No answer!

And if the House was harmed. Can the court grant relief? Will a federal judge ever impose the mandate immediately? Will the case get heard before the new deadline arrives? Probably not, almost certainly not, and cases move slowly.

Third, there is the matter of pleading requirements. Rule 8 of the Federal Rules of Civil Procedure mandates that a suit include a short and plain statement concerning the court’s jurisdiction, “a short and plain statement of the claim showing the pleader is entitled to relief,” and “a demand for the relief sought ….” No position statements or hifalutin’ oratory. Just facts, a basis for relief, and tell the court what you want.

Here’s where the rubber meets the road! The only relief that flows from the alleged wrong is “impose the dang mandate on employers right now.” That will not go over well with the U.S. Chamber of Commerce and other major Republican Party funders for sure. No sir (and ma’am), it won’t! So we’ll have a party with a suit it must hope it loses, a situation readily apparent to most sentient beings since this nonsense started!

So what happened? Well, when someone calls me, angry and all about principles, I pass. I pass because I know what I cannot deliver. Lawsuits have their purposes. Making political points is rarely one of them!

So what happens now? Who knows. My prediction? No suit ever gets filed, but we’ll see an impeachment resolution and committee hearings before the end of 2014. How better can the last 27 of President Obama’s 30 remaining months in office be spent, and the Rs will prove they learned something from 1998 by not starting the impeachment proceedings until after the mid-term elections are over.

P.S. There’s plenty on the side of “the president had the power to so act,” by the way, which means if the suit ever got filed and actually went somewhere, President Obama might win on the merits. That issue seems to matter not at all, however.


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