Rep. Tom Rice (R-SC), a staunch opponent of the Affordable Care Act, introduced a House resolution last week proposing that the House of Representatives sue President Obama to force faster implementation of the Obamacare employer mandate provisions. So far, 29 other House Republicans have signed on as co-sponsors of the proposal, which also seeks to overturn the president’s deferred action order for young undocumented immigrants, and welfare reform waivers to states.
Though every House Republican opposed Obamacare and these 30 have repeatedly voted to repeal it, the resolution calls for a civil action against the Obama administration seeking more speedy and vigorous enforcement of the act. They claim the administration has shown a “continuing failure to faithfully execute” several laws and seek to eliminate executive discretion over whether insurers can continue to offer non-compliant policies in 2014, reporting requirements can be delayed, deportation can be deferred for undocumented immigrants who were brought to the United States as children, and waivers can alter work requirements under state welfare reform.
A similar lawsuit was filed earlier this year by a Florida dentist and JudicialWatch, who claimed that the president has no authority “to pick and choose which parts of the law he’s going to enforce for the sake of political convenience.” Even American Enterprise Institute Resident Fellow Thomas M. Miller, who literally co-authored a book called Why ObamaCare Is Wrong For America, noted at the time that that lawsuit was unlikely to succeed. “The federal courts usually provide a good bit of deference to executive branch regulators when it’s a matter of relatively short delays for technical or practical factors,” though he was unsure “whether a one-year delay of the for enforcement of the employer mandate is arbitrary, capricious, or unlawful.”
Peter M. Shane, a professor of law at the Ohio State University, told ThinkProgress that even if the resolution passed the House, the case would likely go nowhere. Noting that there have been very few cases of Congress suing the executive over administrative discretion, Shane observed that the courts would likely find some doctrinal excuse “to get out of the way of an inter-branch food fight” between the legislative and executive branches. “The biggest problem would be standing,” he observed, noting that if the courts allowed Congress to sue “whenever any statute is implemented with what it considered to be insufficient speed or comprehensiveness,” opening of floodgates wouldn’t “even begin, as a metaphor, to cover the disaster that would represent.”
Shane noted that there have been cases in the past where the executive branch has dragged its feet on enforcing laws it didn’t agree with, though even in those cases Congress hasn’t had standing to sue. “Clearly, that’s not this case,” he observed, as if the Obama administration “could wave magic wand and have entire statute implemented effectively now, it would do so.” Indeed it is the Obama administration, not the House Republicans, who want the healthcare reform law to be implemented and enforced.
The Rice resolution instructs that “no additional funds” be provided to bring the action and that all of the money “shall be derived from existing appropriations for salaries and expenses of the House for that fiscal year.” The House spent $2.3 million on its unsuccessful attempt to defend the unconstitutional Defense of Marriage Act.
The co-sponsors include Reps. Michele Bachmann (R-MN), Jason Chaffetz (R-UT), Tom Price (R-GA), Mark Sanford (R-SC), Steve Stockman (R-TX), Joe Wilson (R-SC), and Ted Yoho (R-FL).