Thank you John Boehner. The nation truly appreciates you and your fellow House Republicans altruistically devoting your last moments in Congress, before a much-deserved 5 1/2 week vacation (hey, you try doing nothing for a whole year…it’s exhausting!) to protecting healthcare. Despite obsessively voting fifty times and spending $70+ million of taxpayer money to repeal the Affordable Care Act / Obamacare, you’re on a mission to ensure that Americans receive every single benefit the insurance law intended. Bravo!
That’s right. Republicans have sued the President of the United States. That’s a pretty serious action. Must’ve been over something so egregious… something so detrimental to America’s health and welfare… something that, if unchecked, could literally bring down our great nation. Guess again.
The lawsuit is over Obama’s use of an executive order to delay for one-year the employer mandate provision of ACA, which requires business owners to provide health care for its employees. Forget Immigration, minimum wage or extended unemployment insurance. There’s no time to waste on these pesky little issues when one aspect of Obamacare is at risk! Because no one wants to force businesses to provide health insurance to employees more than House Republicans, right?
Oh, those executive orders! Republicans hate them, especially when it’s a Democrat who signs them. But for anyone keeping score, Obama’s signed 183, far less than any president in modern history, especially Republicans. George W. Bush signed 291 of them. Bill Clinton 364. Ronald Reagan 381. And George H. W. Bush 166 (in four years). So why all the Republican concern about the Constitution all of a sudden? It’s because the only one thing Republicans hate more than a Democratic president’s use of executive orders is this president himself. No president has been more disrespected, or been the object of more vengeful scheming, than Obama.
To be sure, for Republicans, the lawsuit is not only baseless but meaningless. It will have no material impact on Obama’s presidency, and its cost to taxpayers will ultimately seem small compared to the cost to the party come election day. But the real gain is to be had by Democrats, whose base is more energized than ever heading into November’s critical midterms, while being handed on a silver platter a delicious boon to fundraising. They’ve raised millions since the suit’s been filed… at a rate of about $1-million per day.
By: Andy Ostroy, The Huffington Post Blog, August 4, 2014
August 5, 2014
Posted by raemd95 |
GOP, House Republicans, John Boehner | Affordable Care Act, Congress, Conservatives, Constitution, Election 2014, Employer Mandate, Executive Orders |
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When I learned that House Speaker John Boehner is suing President Barack Obama, I thought about a number of good reasons for something to limit executive actions. Would it be to limit NSA spying on its citizens? Could it have something to do with limiting IRS hazing of liberal and conservative groups (the Tea Party gets most of the attention, but the Congressional panel revealed that all new groups got special scrutiny)?
Would it end executive orders by the executive branch, or terminate signing statements, something done by Obama and George W. Bush (who did both with more frequency)? Might it require less immunity for advisers in the presidential administration?
Actually, it wouldn’t involve any of these good reasons for a lawsuit.
Instead, House Speaker Boehner wants to sue President Obama to implement the health care law, known as the Affordable Care Act (ACA), sooner.
Huh?
That’s right, Boehner claims that the Obama administration overstepped its legal bounds by delaying the employer mandate for a year. Businesses won’t be mandated to provide health care for their employees for a year.
What’s ironic is that House Republicans, when they weren’t voting to repeal the ACA, they also tried to vote for the exact same delay in the employer mandate.
So the lawsuit clearly isn’t about policy. It is about who has the power.
Boehner claims that the Obama administration shouldn’t have the power to write the law. But isn’t the executive branch allowed to implement the law? Is the timing part of writing a law, or implementing a law?
Actually, there’s a long history of delays in implementing the law, even about health care. And I don’t remember Boehner filing a lawsuit, or even objecting, when President George W. Bush delayed the implementation of his prescription drug law 10 years ago (passed by Congress, of course).
Boehner also claims that the White House has been abusing the executive actions, even though Obama has used the fewest executive actions since Grover Cleveland, according to the Washington Post. Granted, Boehner admitted that he thinks presidents should be allowed to use executive orders, but that the president has been abusing such authority with recess appointments.
If that term sounds familiar, it’s something President George W. Bush would use when making appointments that weren’t approved by Congress. Nobody remembers Boehner suing Bush over these, or even objecting to them.
When making his case for the lawsuit in his op-ed in a CNN article, Boehner didn’t say anything about implementing the health care law sooner, or even that he supported some recess appointments made by Obama’s predecessor. Instead, he cited Senate Democrats and President Obama refusing to pass House Republican jobs bills.
I don’t remember that being unconstitutional.
When Republican voters realize that the lawsuit has nothing to do with illegal immigration, the IRS, the NSA and spying, or repealing the health care law, but making the mandates occur faster, how will they react? I foresee a lot of disappointment in GOP ranks when they read the lawsuit.
By: John A. Tures, Professor of Political Science at LaGrange College in LaGrange, Ga: The Huffington Post Blog, July 27, 2014
July 29, 2014
Posted by raemd95 |
Affordable Care Act, House Republicans, John Boehner | Congress, Conservatives, Employer Mandate, Executive Orders, George W. Bush, GOP |
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After initially threatening to sue President Barack Obama over a variety of issues, House Speaker John Boehner settled on just one: the delay of the Affordable Care Act’s employer mandate. The legality of that action, as law school professor Nicholas Bagley has pointed out, is questionable. But the lawsuit also implies that the executive branch should have limited discretion in implementing laws. And Republicans only have to look toward Governor Chris Christie to show how that doesn’t make much sense.
In 2013, Obama delayed for a year the employer mandate, which requires all businesses with 50 or more full-time employees to provide health insurance to their employees or pay a penalty. Infuriated, Republicans called the president’s unilateral action illegal. On this count, they may be right. But it will be nearly impossible for Boehner to convince the courts that the House has suffered concrete damage that gives them the constitutional authority to challenge the action. In all likelihood, the lawsuit is meaningless.
However, this case has implications beyond its legal importance. Simon Lazarus, the senior counsel at the Constitutional Accountability Center, testified on Wednesday before the House Rules Committee about the historic discretion afforded presidents to implement laws.
“The Administration has not postponed the employer mandate out of policy opposition to the ACA, nor to any specific provision of it,” he said, according to his prepared remarks. “It is ludicrous to suggest otherwise, and at best misleading to characterize the action as a ‘refusal to enforce’ at all. Rather, the President has authorized a minor temporary course correction regarding individual ACA provisions, necessary in his Administration’s judgment to faithfully execute the overall statute, other related laws, and the purposes of the ACA’s framers.” The key is that Obama delayed the employer mandate in order to prioritize the success of the entire law. It does not fundamentally change the legislation or attempt to undermine it.
Lazarus also gave examples when former presidents George W. Bush and Bill Clinton used their discretion in implementing legislation. Bush, for instance, delayed certain EPA regulations not out of technical need, but because he opposed the policies. That is a much graver offense than delaying part of the law in order to increase the chances of its success. The Bush administration actively tried to undermine it. “Such intentional refusals to enforce or implement laws … do violate the laws in question, and are, by definition, failures to faithfully execute the laws as required by the Constitution,” Lazarus said.
Christie used discretion similarly in a decision regarding Tesla’s ability to sell directly to its customers. Under New Jersey statute, direct sales of automobiles are illegal. Christie opposes that law, but must enforce it—except, as he told CNBC’s John Harwood Wednesday, he gave Tesla a one-year grace period.
“The fact is we looked the other way for a year, to allow Tesla to do what they are doing,” he said. “I can’t just pick and choose the laws to enforce. So I give [sic] them what I felt was a reasonable period of time to operate the way they were operating.”
After a year, Christie believed that he had to enforce the law—and Republicans around the country freaked out. A.J. Delgado, of the National Review, questioned Christie’s commitment to the free market. “[Y]ou’d expect Christie, who claims to believe in free markets, to recognize a protectionist swindle, as he did when he took on the state’s powerful public-school teacher unions,” he wrote.
Legally, Christie’s selective enforcement on the ban on direct automobile sales might be more justifiable than Obama’s delay of the employer mandate. Executives frequently prioritize certain laws based on their limited resources. Obama defied a specific deadline in the law. But the functional implications of them are the same. Christie and Obama both used their discretion in enforcing laws to improve their administration’s governance. For Obama, that meant delaying the employer mandate to ease the implementation of Obamacare. For Christie, it meant giving Tesla a year-long reprieve from the direct-sales ban to give the legislature time to change the law.
That’s not to say that executives should have unlimited authority to adjust legislation. But they should be able to use discretion in implementing laws so that they have the greatest chance of success. The House’s lawsuit threatens to eliminate that discretion.
By: Danny Vinik, The New Republic, July 17, 2014
July 21, 2014
Posted by raemd95 |
Chris Christie, House Republicans, John Boehner | Affordable Care Act, Employer Mandate, EPA Regulations, George W. Bush, GOP, Tesla |
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Serious lawsuits start with some specific legal grievance – a claim that someone was injured by a defective product, say, or that a search was unreasonable under the Fourth Amendment – and proceed from there. US House speaker John Boehner wants to sue the President of the United States – for no particular reason other than his alleged lawlessness – and fill in the details later.
The lawsuit, which a House committee will take up rather seriously on Wednesday, is a frivolous stunt that not only has no chance of succeeding but isn’t even intended to succeed. The belated choice of targets does provide a useful illustration of Republican priorities, though: most notably, registering more outrage at the Affordable Care Act and further attempting to legitimize various fake scandals wafting up from the conservative fever swamp.
Some of the GOP attacks on the Obama administration have had real substantive effects. This suit, however, is analogous to the endless House votes to repeal Obamacare – an impotent symbolic gesture by Republicans frustrated they were unable to deny access to health coverage to tens of millions of American citizens.
By speaking first in general terms about Obama’s alleged failure to “faithfully execute the laws” in favor of usurping the will of Congress, plus the president’s failure to do enough bombing of random foreign countries, Boehner allowed the Tea Party’s insatiable skree machine to fill in its own gibberish legalese. Why focus on one potential impeachable offense when the examples can be nearly infinite? Benghazi! Fast and Furious! Executive orders!
Now that Boehner has actually announced the basis for the lawsuit – and will spend the next two weeks getting it to the floor for another meaningless Obamacare vote – it turns out to be a narrow and almost certainly irrelevant one. The suit will focus on a claim that Obama acted illegally when the administration decided to effectively delay implementation of the employer mandate in the Affordable Care Act, by declining to penalize employers who didn’t comply in 2014.
In fairness, the argument isn’t unreasonable on its own terms, but to bring a legal challenge in federal court, a plaintiff must have “standing” – Boehner and Co must show that the House of Representatives has been directly injured or otherwise directly affected. Under existing precedents, that’s nearly impossible.
And even if the federal courts were to grant standing, for a lawsuit to proceed, there has to be an ongoing controversy. Since the employer mandate will almost certainly not be delayed another year, the issue is likely to be moot before the lawsuit gets very far, which will result in its getting thrown out. The American taxpayers will have funded a no-hope legal challenge because House Republicans needed to keep their base’s 24/7 scandal-invention machine going – not because there was an actual controversy.
It’s not clear what kind of bill the coming weeks might produce. Conservative legal experts will be happy to give testimony, some of which will be reflected in the final resolution. But the details are fundamentally irrelevant. The federal courts will almost certainly deny that they have jurisdiction, Boehner will have sent politically expedient signals to his base, and the successful implementation of Obamacare will proceed exactly as it would have – as if nobody had ever sued the President of the United States at all. As for the defective product that is the Republican-controlled House, well, the only remedy for the injuries they’ve inflicted is at the ballot box in November.
By: Scott Lemieux, The Guardian, July 15, 2014
July 16, 2014
Posted by raemd95 |
House Republicans, John Boehner, Tea Party | Affordable Care Act, Conservatives, Election 2014, Employer Mandate, Executive Orders, GOP, ObamaCare |
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The story on House Speaker John Boehner’s lawsuit against President Barack Obama is pretty simple: regardless of whether the administration overstepped, what’s at stake is whether the courts are being empowered at the expense of the elected branches of government.
For starters, there’s zero evidence that Obama has been unusual in his use of executive powers. If he’s overdone it, then all the recent presidents have done so, too. The idea that he’s some sort of tyrant who acts differently than other modern presidents is nonsense.
In fact, It’s perfectly normal for presidents and executive branch departments and agencies to make broad interpretations of law that look a lot like legislating. It’s how the system works, and pretty much how it always worked. Thus Richard Neustadt’s famous claim that the system isn’t “separation of powers,” but separated institutions sharing powers.
Nonetheless, there are rules constraining how laws may be interpreted, and it is possible that in specific instances, the administration may have acted beyond what the law allows.
Indeed, experts have made the case that this kind of overreach occurred with the delayed implementation of the employer mandate in the Affordable Care Act (which, apparently, is going to be central to the House Republicans’ lawsuit), though other experts disagree.
In any case, it would be unprecedented, and in fact would constitute a significant change to the constitutional system, if the courts allowed Congress to sue the president over the ACA delay.
The technical issue is “standing.” For the courts to consider a lawsuit, the person or group bringing the suit has to show they were harmed in some direct way. So, for example, in the recent recess appointment case, Noel Canning Corp. was able to show that it had directly been harmed by an action taken by members of the National Labor Relations Board who had been recess-appointed. Generally, the courts have ruled (Vox has a good explainer on this) that Congress isn’t eligible to sue the president just because it doesn’t like what he’s done.
What Boehner is claiming now is that Congress, or the House of Representatives in this case, should be able to sue the president for not following the law if no one else would be able to do so.
If that succeeds, however, the big winner in the long run wouldn’t be Congress. It would be the courts.
By the logic of Boehner’s own action (despite what he says), this isn’t about a tyrannical president refusing to obey the law. If House Republicans believed that Obama was an out-of-control dictator, then they couldn’t also believe that a court ruling would be sufficient to constrain him.
What’s actually happening is that the House doesn’t interpret the law in the same way as the president, and the question is how to resolve the variance. Normally, each branch has an opportunity to interpret the law (those separated institutions sharing powers again), but doctrines such as standing limit the courts’ ability to intervene.
If, however, they can intervene whenever a house of Congress is unhappy, then the courts get a a much more active role in determining what the laws say. And why just a house of Congress? What if the president sued Congress, for example, if it failed in its obligation to produce appropriations bills on time? Instead of a government shutdown, would we get an injunction and then a judicial act of appropriations, with someone appointed by Bill Clinton or Ronald Reagan making 302(b) allocations by judicial fiat? Or perhaps we’d wind up with individual senators jurisdiction shopping, looking for a friendly judge to overturn some fight they lost in committee or on the Senate floor. Those kinds of setbacks are common for senators and executive branch departments; the only thing that prevents the losers, or whole chambers that lost fights in conference, from directly appealing to the courts is that the courts have a doctrine against intervening.
So what can Congress do? If the problem were simply a president who failed to follow the law, then the only real choices would be either to live with it, or impeachment and conviction. But if the problem is merely that the president interprets a law in a way that Congress doesn’t like, then the obvious remedy, as presidency scholar Andrew Rudalevige said recently, is “for Congress to change the law to remove presidential discretion” (I argue the same here).
So put aside the question of whether the administration improperly interpreted the law (it might have). Put aside, too, the silliness of House Republicans attempting to force the president to impose a policy, the employer mandate, which no Republican actually wants to enforce. And put aside the reality that by the time this lawsuit is decided it may well be moot, at least if the mandate takes effect as currently planned. This is about enhancing judicial power at the expense of the elected branches, and it’s a very bad idea.
By: Jonathan Bernstein, Ten Miles Square, The Washington Monthly, July 12, 2014
July 13, 2014
Posted by raemd95 |
Federal Courts, John Roberts, U. S. Supreme Court | Affordable Care Act, Congress, Employer Mandate, Executive Orders, House Republicans, Impeachment |
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