Damon Root believes the lawsuit has legs:
That “failure to implement” refers to the White House’s controversial unilateral action delaying implementation of Obamacare’s employer mandate, the provision of the 2010 health care law requiring firms with 50 or more employees to provide qualifying coverage. As Peter Suderman noted in July 2013, the legality of that delay has always been in doubt. In fact, even Democratic supporters of the health care law have raised questions about the propriety of Obama’s actions on that front. Sen. Tom Harkin (D-Iowa), for example, declared, “This was the law. How can they change the law?” How indeed? Perhaps we’ll find out as the House’s lawsuit moves forward.
In a roundup of legal opinions relevant to the suit, Kliff finds that the precedent benefits the president:
Congress and the courts have repeatedly recognized that the White House needs some space for discretion to make laws work. Legislation is often a broader blueprint with a particular policy goal in mind — in the case of the Affordable Care Act, for example, expanding access to insurance. The agencies that turn that blueprint into actual regulation, courts have ruled before, need some space to make decisions about the best way to handle that process.
In 1984, for example, Supreme Court’s Heckler v. Chaney decision examined whether the Food and Drug Administration had acted unlawfully when it refused to stop prisons from using lethal injection drugs that it hadn’t approved for such a purpose. This is, after all, a hugely important job for the FDA: making sure Americans are using drugs safely. But in Heckler, the Supreme Court ruled that agencies exist in a world where there are budget constraints and scarce resources and competing priorities, and sometimes they need to use their discretion in figuring out how to make the trains best run on time.
In Eric Posner’s view, the lawsuit’s entire premise, that Obama “failed to execute” the ACA employer mandate, is off-base:
Forget what you learned in seventh grade: It’s simply not the case that Congress sets policy and the president executes it. The two branches battle over policy, using all means at their disposal. The laws themselves are frequently vague and loose. In the end, the president enforces most of the laws in an even-handed way because most laws are popular—that’s why they were enacted in the first place. If you don’t believe me, consider how rare it is for presidents to use the pardon power, which is without doubt discretionary, for partisan or ideological ends. President Obama has not gone beyond public opinion—for example, by releasing prisoners from Guantánamo Bay—because he fears a political backlash, not because it’s illegal.
This conflict is baked into our system. It’s a result of the founders’ decision to give the executive and the legislature different sources of political authority. This is how our government differs from a parliamentary system, in which the prime minister operates at the pleasure of the legislature. If you want to blame someone, don’t blame Obama. Blame the Constitution.
Boehner’s choice of subject for his lawsuit is inscrutable to Arit John:
Republicans would have to prove that the president’s lawless failure to enforce the employer mandate is an attempt to derail his signature policy initiative. (Conservative pundits and media outlets have been surprisingly silent on how this might work.) If the House had gone after the president’s gun control actions or, as many suspected, his immigration orders to defer the deportations of children brought to America illegally, then the lawsuit would have at least made sense. …
Boehner could have sued the president for enacting a number of policies his base doesn’t approve of: letting “Dreamers” stay in the country, any of his 23 different gun orders, or even ending LGBT discrimination among federal contractors. Instead he’s suing him for delaying a mandate Republicans would happily delay permanently.
Nicholas Bagley highly doubts the House has standing to sue on this issue:
The memo also asserts that there is no “legislative remedy” for the delays. That’s just false. Congress could, for example, enact a statute withdrawing the President’s claimed enforcement discretion. Congress retains the power of the purse, giving it enormous leverage in negotiations with the President. And don’t forget about the impeachment power. These options may not be politically viable, but that just means Congress isn’t willing to use its power, not that it lacks the power.
On the politics of it, Yglesias sees Boehner’s lawsuit against Obama as further evidence that the speaker is, as he puts it, in zugzwang – a chess term for when a player is forced to move when his best option is to pass:
The best thing for House Republicans to do this summer and fall is nothing — Obama’s approval rating is underwater, the GOP is poised to pick up seats in the midterms, and there’s no need to rock the boat. But conservative activists won’t tolerate a pass strategy. They hate Obama and want Boehner to do something that expresses that hatred. Lawsuits are a milder move than impeachment, so given the realities of the situation the litigation is arguably a savvy move by Boehner rather than a blunder. But the impatience of the activist right is still a gift to the White House. Rather than leaving Obama to struggle impotently from the White House, it allows him to underscore the basic reality of the situation — there’s stuff he would like to do that Republicans are furiously fighting to keep from happening.
Ezra considers it a safety valve of sorts for Republican rage:
Assuming House Republicans ultimately back Boehner’s lawsuit, it will begin a lengthy legal process as the case winds its way through the courts. House Republicans will be able to go back to their districts and tell their base that they’re doing something radical and even unprecedented to bring Obama to heel. Meanwhile, Boehner can argue that attempting impeachment before the case finishes would be counterproductive: if Republicans raise impeachment as a remedy there’s no way the courts will get involved. They’ll just let Congress work it out. Boehner is letting Republicans throw as many parties as they want in the House so he can make sure they don’t drink and drive home.
I’m struck also by the speed with which the GOP establishment tried to rule out the Palin impeachment idea. They saw immediately how damaging it would be politically, and dismissed it. But if the lawsuit fails?
(Photo: Brendan Smialowski/Getty)