Can the House sue over the employer mandate?

Speaker of the House John Boehner has released a draft resolution authorizing the House of Representatives to file suit against President Obama. The claim? That the President’s delay of the employer mandate was unconstitutional.

Set aside the delicious fact that Boehner—no friend to either Obamacare or taxes—is pressing to have the President enforce an Obamacare tax. On the merits, he’s got a point. As I’ve explained before, the legality of delaying the employer mandate is questionable.

Even so, the lawsuit isn’t going anywhere. The problem is standing. The House of Representatives as an institution hasn’t suffered the sort of concrete, particularized injury that the courts are constitutionally empowered to review. This is a political dispute, not a judicial dispute, and the courts will properly leave it to the political branches to sort it out.

The only arguments I’ve seen in favor of standing—they’re sketched out in a memo from Boehner—don’t withstand even cursory scrutiny. The primary claim seems to be that “[t]here is no one else who can challenge the president’s failure.” But so what? The Supreme Court has been unusually emphatic in holding that “the assumption that if [the challengers] have no standing to sue, that no one would have standing to sue, is not a reason to find standing.” Not every fight can or should see the inside of a courtroom.

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.

Finally, the memo suggests that “explicit House authorization for the lawsuit” may confer standing on Congress. But why? In Chadha v. INS, the Supreme Court flatly dismissed the idea that the House or Senate, acting alone, could constitutionally wield legislative power. Boehner’s resolution has as much legal effect as an open letter signed by members of his caucus.

Yes, it’s true that there’s some language in Raines v. Byrd suggesting that a lawsuit brought by individual members of Congress was especially problematic because the members lacked authorization from the House or Senate. But the lawsuit was dismissed primarily because it was inappropriate for courts to undertake the “amorphous general supervision of the operations of government.” The absence of authorization made the case for standing especially weak, but its presence won’t strengthen it much.

To be fair, I haven’t seen a fully fleshed-out argument on the standing claim. It’s possible I’m giving it too short shrift. But for now, this lawsuit looks like a waste of time and taxpayer money.


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