I’m writing about the suit.
No, not the one you see, although it’s an old favorite. About 15 years old. Worn, worn, worn, but it was a beaut in its day. It’s still in my closet, it works if I leave the jacket on, and it still fits, so long as I’m exercising and not eating too, too much!
No, I’m discussing Boehner v. POTUS, Speaker John Boehner’s intended suit against President Barack Obama. Before I get ahead of my comments on this stupid f*cking political stunt, let’s review the bidding.
In June the Speaker announced plans to sue the president for what he claims are abuses of power. House Republicans take umbrage at … well, most everything with which they disagree (and plenty with which they agree). In this particular instance, they don’t like President Obama’s use of executive orders. News flash! Congress never likes executive orders, for they represent a ceding of power to the executive branch.
So, Speaker Boehner announced his intention to “law” the president. (A friend from West Virginia, a backwoods if ever there was one, tells me people “back home” don’t sue people, they “law” them.) For at least a couple of weeks the Speaker was vague about a basis for the suit. Today, however, he issued a draft resolution which grants authority to initiate or intervene in lawsuits regarding “any provision of the Patient Protection and Affordable Care Act and title I and subtitle B of title II of the Health Care and Education Reconciliation Act of 2010, including any amendment made by such provision.” Plain English version: the House plans to sue President Obama for delaying for two years the employer mandate associated with the Patient Protection and Affordable Care Act aka the ACA or Obamacare.
Now, I sue/“law” people from time to time, and if you think you have a case, please feel free to call me. If you plan to call me, though, please be sure your matter matters more than what the Speaker speaks about.
My pitch for business aside, my lawsuits always involve a request for relief, and they come in three varieties. (Every so often a suit may combine two or all three.) For my client I ask for: (1) money; or (2) a judge to tell someone he or she must: (a) stop doing something; or (b) do something. That’s it, plain and simple.
Suits against the president have not often been successful. See, Republicans v. Obama – and Other Times the President Has Been Sued by Sebastian Payne from the July 11 Washington Post. (Successful suits have generally involved the president’s personal conduct.) Still, in each of the cases the plaintiff—the suing party—has asked for relief a court can grant. Here, I can’t figure out what the House of Representatives wants, and I have not read any commentaries that suggest an answer.
Do the advocates want the court to order the president to rescind his waiver of the employer mandate? The mandate was first delayed on July 2, 2013, and delayed again this past February. A judge will surely ask the plaintiff, if he has standing (a legal basis for seeking relief), why he waited more than a year to ask for an order directing President Obama not to extend a deadline. In other words, the case may be moot by the time a court hears it.
Then there is the political question doctrine. Courts shy away from disputes between the other two branches. And none of that considers the argument that the administration has authority in the ACA to extend deadlines. Here’s some analysis on the “legal authority” issue from Nicholas Bagley, an Assistant Professor of Law at the University of Michigan, posted at The Incidental Economist.
And if the Rs don’t want the court to end the extension of the mandate they don’t like? What then? An order which tells President Obama he must write on the blackboard 3000X … ? I know Republicans don’t like lawsuits, trial lawyers, etc. They say so often. For those of us in that line of work, however, lawsuits represent a less than perfect means for resolving real disputes. Shame on these people for wasting resources on this particular form of folderol.
And about the other suit? The nice one. If the House of Representatives gets substantive relief in its suit, you’ll see me in mine.