The results are in for America's Next Top Lawless Executive Order, and Obamacare is the surprise winner. Specifically, House Speaker John Boehner is suing President Obama for not enforcing part of Obamacare Republicans actually hate: the employer mandate. But the problem with suing over the employer mandate delay is that it wasn't illegal and, more embarrassingly, Republicans are accusing the president of failing to enforce a law he actually supports.
House Republicans unveiled a draft of a House resolution allowing him to sue the president over the "implementation of (including a failure to implement) any provision" in the Affordable Care Act, ending days of speculation over which executive orders were so objectionable he decided he had to sue the president to enforce the country's laws. “In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it,” Boehner said, according to The Wall Street Journal.
On July 2, 2013, word got out that the administration was delaying the employer mandate for companies with 50 or more employees for one year. Congress thinks those changes should go through them — House Republicans voted to delay the mandate two weeks after the executive order. As Boehner put it, "I hope the administration recognizes the need to release American families from the mandates of this law as well. This is a clear acknowledgment that the law is unworkable, and it underscores the need to repeal the law and replace it with effective, patient-centered reforms." Rep. Eric Cantor was more direct: "The best delay for ObamaCare is a permanent one."
But Obama's delay wasn't illegal: as Simon Lazarus at The Atlantic explained, the administration is within its legal rights to delay parts of the law if it eases the transition. And courts would agree. Lazarus wrote (emphasis added):
As held by former Chief Justice William Rehnquist ... courts must respect an agency's presumptively superior grasp of "the many variables involved in the proper ordering of its priorities." Chief Justice Rehnquist suggested that courts could lose their deference to Executive Branch judgment if an "agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." The Obama Administration has not and is not about to abdicate its responsibility to implement the statute on whose success his historical legacy will most centrally depend.
In other words, 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.
Brian Beutler at The New Republic argued, "the Supreme Court has already weighed in (against Obama) on the issues of recess appointments and contraception, and lower courts are addressing issues surrounding the implementation of Obamacare already. Immigration enforcement is the biggest outstanding issue, and the one that most animates the GOP base." 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.
This article is from the archive of our partner The Wire.
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