Will Boehner's Obamacare Lawsuit Work?

Manuel Balce Ceneta/AP

House Republicans might have a hard time getting the courts to hear their lawsuit against President Obama.

Even if Republicans are correct on the merits, and delays in Obamacare implementation were indeed illegal—which is an enormous "if"—there's a decent chance they'll still lose. Legal experts, including some conservatives, are skeptical that the House has the right to bring this lawsuit in the first place.

And if the courts agree, the suit will never make it far enough to addressing the underlying questions about Obamacare delays.

When members of Congress have sued the president in the past, courts have dismissed those cases for a lack of standing—meaning, the lawmakers didn't meet the conditions a plaintiff has to meet to file a lawsuit. And it's not clear that the latest case will fare any better.

"I'm skeptical of standing… I wouldn't dismiss it—just, from what I've looked at so far, I don't see it yet," said Jonathan Adler, a law professor at Case Western Reserve University and a critic of the Affordable Care Act.

To establish standing, a plaintiff has to show an injury caused by the defendant. That's been a problem for members of Congress in the past. Courts have said their political disagreements aren't an injury for the legal system to address. On top of that, Congress has its own powers to employ when it thinks the executive branch isn't doing what it's supposed to.

But that's why the House as an institution, rather than individual lawmakers, is now suing Obama.

(There's a reason the decision to sue Obama came first, followed by the decision about what to sue him for: The specifics needed to fit the strategy devised by a group of conservative lawyers, including one of the architects of the challenge to Obamacare's individual mandate.)

The theory here is that, by failing to implement Obamacare's employer mandate on the date the law specified, Obama injured the House of Representatives' institutional interests. He didn't carry out the law as Congress wrote it, and Congress should be able to sue him for it, Republicans argue.

Basically, this lawsuit tries to navigate around the many obstacles the Supreme Court has previously put in the way of letting the legislative branch sue the executive branch. And that could be a hard sell.

"This is not something that's really been done before.… It is an aggressive read of the relevant cases," Adler said.

Simon Lazarus, senior counsel at the liberal Constitutional Accountability Center, said the issue of standing is even clearer.

The Supreme Court has given the executive branch a lot of leeway to phase in new requirements or temporarily hold off enforcing regulations in order to make things run more smoothly for stakeholders. Lazarus says that's precisely what the administration has done with Obamacare's employer mandate, and that the House's lawsuit is therefore just a standard political dispute unfit for the courts to resolve.

"This is a political dispute, not a judicial dispute, and the courts will properly leave it to the political branches to sort it out," wrote Nicholas Bagley, a law professor at the University of Michigan.

In a memo to his conference, House Speaker John Boehner also said the Bipartisan Legal Advisory Group, the entity that is bringing the suit, would have standing because no one else could challenge the delays. Employers certainly haven't been hurt by the delays, and individual employees would likely have a time proving that an on-time employer mandate would have saved them from a particular injury.

"There is no one else who can challenge the president's failure, and harm is being done to the general welfare and trust in faithful execution of our laws," Boehner wrote.

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