The public first learned about House Speaker John Boehner’s (R-Ohio) plan to file an anti-Obama lawsuit on June 24, more than two full weeks ago. Asked for an explanation, the Republican leader struggled – Boehner knew he wanted to sue the president, though he didn’t know why – but the in the process, he gave his team all kinds of time to think of something.
As the put-up-or-shut-up moment approached, the pressure was on the Speaker to follow through in a big way. Yesterday, Boehner blew it.
Speaker John Boehner has released a bill that would authorize him to sue the White House over its implementation of the Affordable Care Act.“The current president believes he has the power to make his own laws – at times even boasting about it,” Boehner said in a statement Thursday. “He has said that if Congress won’t make the laws he wants, he’ll go ahead and make them himself, and in the case of the employer mandate in his health care law, that’s exactly what he did.”
In reality, delaying implementation of a minor provision of a law and making law unilaterally are not the same thing. Indeed, the Speaker’s office went on to say the White House “literally waived” the law, which simply isn’t true – delaying part of a law isn’t the same as literally waiving it. Those who can’t understand the difference probably shouldn’t pursue a career in legislating.
Regardless, even many of Obama’s most vituperative critics would be forgiven for asking, “That’s it?” at this point. For weeks, Boehner characterized the president as an out-of-control tyrant, but when push came to shove, the Speaker ignored his party’s concerns about immigration, the environment, and economic measures, and instead moved forward on one thing: a year-old delay in an obscure policy most Americans have never heard of.
For all the overheated rhetoric about the president’s lengthy list of abuses, this was the best Boehner could come up with. As Brian Beutler put it, “Today’s story is that the GOP has spent weeks and weeks accusing Obama of unbridled lawlessness, when they didn’t really have the goods.”
Looking ahead, what’s the likely result of the lawsuit? It’s probably easier to consider this in Q&A form.
* What’s first? The House majority will have to agree to move forward with Boehner’s litigation plan, at which point it’ll go to federal court, where Republicans will have to demonstrate they have standing.
* Won’t that be difficult for the GOP? Almost certainly, yes. When filing a lawsuit, a plaintiff needs to be able to demonstrate that he or she has been harmed – or faces the threat of harm – in some demonstrable way. House Republicans upset about an implementation delay can’t simply go to court and argue to the judge, “We don’t like the president.” They’ll need to show how they’ve been adversely affected by the delay itself.
* Has a lawsuit like this ever worked before? No.
* Remind me, what’s the “employer mandate”? In practical terms, the policy name is a bit of misnomer – there is no actual “mandate,” per se. Under the ACA, businesses with 50 or more full-time employees are told they need to offer health care coverage to their employees, but those who choose not to offer coverage have to pay a fairly modest tax penalty. Under the status quo, following the executive action, that penalty won’t kick in, at the earliest, before 2016.
* What’s the basis for the Republicans’ case? The law says the policy was supposed to be implemented by now, and Obama didn’t implement it. Ergo, the argument goes, the administration unilaterally decided to ignore this part of the law.
* If it was going to cause so much trouble, why did Obama delay it? Because it wasn’t ready to be implemented. Small businesses urged the White House for more time, so Obama gave them more time.
* Was that legal within executive authority? We’ll find out soon enough, but the administration has a fairly detailed defense.
* Given how upset Republicans are, Obama’s move must have been unprecedented. Actually, it’s not. When the Bush/Cheney administration was implementing Medicare Part D, officials used executive power to move implementation deadlines around in order to make the law work more effectively. No one cared – and certainly no one sued.
* Do Republicans support the employer mandate? No, they vehemently oppose it.
* Then I’m confused. If Republicans didn’t want the policy to be implemented, why are they filing a lawsuit complaining that the policy wasn’t implemented? Remember, for GOP lawmakers, effective public policy wasn’t part of the equation. The GOP’s priority was failure – they wanted the system not to work. If the employer mandate would have made life difficult for the private sector, then Republicans desperately wanted it to happen so that it would hurt the economy, anger the public, and make the ACA more unpopular, causing a political nightmare for the president.
* So Boehner is suing because Obama isn’t implementing Obamacare fast enough? Pretty much.
* Politics aside, is this policy a good idea or a bad idea? Opinions vary, even among those who generally like the ACA. The fear is the mandate might discourage hiring, but the ACA extends all kinds of breaks to these employers to help subsidize the insurance and soften the blow of increased costs.
* Did the delay deny coverage to a lot of people? Actually no. The vast majority of employers in this category (about 96%) already offer health insurance to their workers, and the delay didn’t affect them at all. What’s more, the delay didn’t affect the creation of the exchanges, which ultimately bridged the gap.
* If these affected workers are going to get subsidized coverage through the exchanges anyway, why have the policy at all? Primarily because the employer mandate helps pay for the law. In fact, with the policy delayed, Obamacare will still reduce the deficit, but by about $4 billion less than previously estimated. Also note, the mandate was created to discourage employers that already provide coverage from dropping their employees and throwing workers into exchanges.
* What happens if the Republicans’ lawsuit somehow prevails? It’ll depend on the details, of course, but the result might very well be the implementation of a policy Republicans don’t like.