John Boehner's Lawsuit Against Obama Probably Won't Work

But if it does, it could make governing "unworkable," one legal expert warns.
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J. Scott Applewhite/AP

House Republicans might have a point about Obamacare's employer mandate—they just can't do much about it by suing the president.

The House is planning to sue President Obama (and, more to the point, the IRS) over delays in the health-care law's employer mandate. It took the first official step in that direction Wednesday, with a hearing in the House Rules Committee over a resolution to authorize the lawsuit.

As a whole, the legal world is pretty skeptical of House Republicans' plan, largely because legal experts from both sides of the aisle doubt the House can clear a key procedural hurdle.

But what if it can? Legal experts are much more divided over the strength of the underlying case against the administration's delays. Even some allies of the Affordable Care Act say Republicans have a solid argument that the delays were illegal, while others fear the case could strip future presidents of basic powers.

"I think it would make government unworkable," said Simon Lazarus, senior counsel at the liberal Constitutional Accountability Center.

Lazarus said delays in the employer mandate are no different from any other administrative delay in implementing new laws, which are myriad. The Supreme Court has previously ruled that federal agencies can use their own discretion about how they allocate their finite resources, and agencies are also generally able to phase in new requirements as a way of making life easier for regulated industries and taxpayers.

Arguing that Obama didn't have the authority to delay the employer mandate would implicate a host of other delays, Lazarus said.

He pointed to past instances in which the IRS has offered "transition relief" to phase in new reporting requirements. The Environmental Protection Agency has also slowed the release of new regulations while it gathered more scientific evidence and gave regulated industries more time to come into compliance—delays that benefited the business interests with whom Republicans are traditionally aligned.

"I don't readily see a way of distinguishing all of those things," Lazarus said.

But others aren't so sure.

Nicholas Bagley, a law professor at the University of Michigan, said Boehner's underlying complaint about employer-mandate delays seems to have some merit. Past examples of "enforcement discretion" aren't quite comparable to delays in the employer mandate, he said.

Bagley drew a distinction between agencies failing to meet their own deadlines versus ignoring statutory requirements.

The Affordable Care Act said employers have to provide health insurance to their employees or pay a fine, and that requirement took effect January 1, 2014. So, as critics of the delays see it, a tax liability kicked in January 1 and is in place today, even if the IRS isn't enforcing it.

The regulations EPA slow-walked didn't work that way, Bagley said: There, Congress directed the agency to write regulations, and new environmental standards didn't take effect until those regulations were issued. So, while it's true that EPA missed Congress's deadlines, it was a deadline imposed on EPA—not on the people EPA regulates.

"There's a big difference between an agency failing to hit a deadline for doing something on its own … and it's another thing altogether for an agency to waive a deadline for private individuals," Bagley said.

Lazarus, on the other hand, said the GOP is overselling the administration's actions. If it had said it never intended to implement a policy Congress passed, sure, that would be illegal, he said. But this was simply a delay—one designed to make sure the policy could be implemented well, in the long run.

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Sam Baker is a health-care correspondent at National Journal.

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