Boehner’s Lawsuit Has No Legal Basis

Remember when the Republicans in the House voted to sue Obama for delaying a provision of Obamacare? Whatever happened with that? Oh right, nothing. The Washington Monthly writes The Congressional Research Service Finds that Boehner’s Lawsuit Has No Legal Basis

"Now, three months after the party-line House vote to green-light the lawsuit, no complaint has yet been filed. If this stretched out delay means that Boehner has actually redirected his sue-Obama gambit toward oblivion, the reason may be this unnoticed six week old CRS report. While bearing an opaquely generic title - ‘A Primer on the Reviewability of Agency Delay and Enforcement Discretion,’ the report actually targets a single instance of alleged agency delay and exercise of enforcement discretion - the Obama Administration’s adjustments of effective dates for the Affordable Care Act’s so-called employer mandate to offer employees ACA-complaint health insurance or pay a tax. This delay happens to be the basis - the sole basis - for the legal action against the President that Boehner outlined in July. Although shrouded in twelve pages of fine print and protectively bureaucratic phraseology, the report’s bottom line is clear: not merely are the legal underpinnings of the Republicans’ planned lawsuit weak; the report turns up no legal basis - no ‘there’ there - at all."

"The Report offers two conclusions: First, under the Administrative Procedure Act (APA), no rulemaking procedure was necessitated by the Administration’s initial one-year delay in enforcing the employer mandate, past the ACA’s prescribed January 1, 2014 effective date. This was so, the Report states, because, `where an agency fails to take a discrete action by a statutory deadline, … no rulemaking is required.'"

"Second, the Report states that, when, in February 2014, the Administration announced an additional year’s postponement of full enforcement of the mandate, until January 1, 2016, “informal rulemaking procedures” appeared to be required. In fact, as the report’s authors reference, the Administration had engaged in precisely the type of informal rulemaking process that, the report concluded, was called for. The Administration’s action finalized a September 2013 Notice of Proposed Rulemaking, making adjustments in response to comments from interested parties, precisely as prescribed by the APA. In other words, having been asked whether the Obama administration had crossed all its t’s and dotted its i’s, the CRS’ answer was unequivocal: yes it had."