House Republicans are holding a hearing on Wednesday over whether to sue President Obama for unilaterally delaying the employer responsibility provision in the Affordable Care Act in an effort to challenge what they see as his administration’s lawless use of executive authority. The lawsuit will come after the administration twice delayed the provision — which requires employers with more than 50 employees to pay a fine if they don’t offer affordable quality coverage — citing complaints from firms that claimed they wouldn’t be ready to meet its requirement by 2014.
And while the lawsuit may be “uniting House and Senate Republicans” and filling up the GOP’s campaign coffers, it is unlikely to bear fruit for House Republicans in court. Here are 5 reasons why:
1. The GOP may not have standing to file suit. A plaintiff who files a lawsuit must have been injured in some way by the person that they are suing. But neither House Speaker John Boehner (R-OH) nor any other member of Congress has been injured by the delay.
2 Conservative legal scholars have dismissed the suit. Ironically, the GOP’s own star witness in favor of the lawsuit , Elizabeth Price Foley, a law professor at Florida International University, once argued that its success is unlikely. “When a president delays or exempts people from a law — so-called benevolent suspensions — who has standing to sue him?” she wrote in the Daily Caller. “Generally, no one. Benevolent suspensions of law don’t, by definition, create a sufficiently concrete injury for standing. That’s why, when President Obama delayed various provisions of Obamacare — the employer mandate, the annual out-of-pocket caps, the prohibition on the sale of ‘substandard’ policies — his actions cannot be challenged in court.”
Harvard law professor Jack Goldsmith predicted, “The lawsuit will almost certainly fail, and should fail, for lack of congressional standing. “Former Bush Department of Justice prosecutor Andrew McCarthy has also described the suit as “either untrue or abject nonsense.”
3. The lawsuit would implement Obamacare sooner. Obama initially postponed the employer responsibility provision until 2015 in July of 2103, arguing that the Treasury Department has “transition relief” authority to delay provisions of new law. In February of this year, the administration announced that companies with 50 to 99 employees will have until 2016 to extend insurance to their employees, while larger businesses with 100 or more workers can avoid paying a fine if they offer health care to at least 70 percent of their workers next year, and cover 95 percent of their workers in 2016.
But should Republicans win their lawsuit, the provision would be implemented sooner — over the objections of businesses and the GOP itself, which has repeatedly voted to repeal the law. It is also unlikely that the Supreme Court would reach a final decision on his case until June 2016, months after the employer mandate is supposed to go into effect anyway.
4. When the delay was first announced GOP didn’t think it was illegal. Republicans did not immediately question the legality of the postponement. Instead, the GOP called on Obama to also delay the individual mandate and vowed to take another vote on the matter.
“Is it fair for the president of the United States to give American businesses an exemption from his health care law’s mandate without giving the same exemption to the rest of America? Hell no, it’s not fair,” Boehner told House Republicans. “We should be thinking about giving the rest of America the same exemption that Obama last week gave businesses.” In a letter to Obama, Boehner even admitted that the employer mandate “cannot be implemented within the current time frame.” The party has referred to the provision as a “jobs killer” and has sought its repeal.
5. Most Americans oppose the effort. A survey released on Monday by Americans United for Change found that 51 percent of voters don’t believe the lawsuit is legitimate and 56 percent believe it to be wasteful.
Even some conservatives have rejected the effort. RedState.com editor-in-chief Erick Erickson, has called the lawsuit “a political stunt wasting taxpayer dollars” that is “designed to incite Republican voters who might otherwise stay home.”