The Cynicism Behind John Boehner’s Lawsuit

Suddenly John Boehner is willing to go to court to fight for the employer mandate. On Thursday, the House Speaker announced that he intends to sue President Obama for delaying the ObamaCare rule requiring employers to offer workers health insurance. “[T]he president changed the health care law without a vote of Congress,” Boehner alleges, “effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it.”

Of course, Boehner and his fellow conservatives hate the employer mandate. And they are now suing Obama to enforce a policy that they despise. All of which makes the entire concept a rather awe-inspiring exercise in shameless cynicism.

The employer mandate is a rule under ObamaCare that requires firms with more than 50 full-time employees to provide affordable health insurance or else pay a penalty. Conservatives have stridently opposed the mandate as a burden on small businesses that would make hiring more costly.

Boehner himself has warned that the employer mandate would “drive up cost of employment.” He has said that employers would be “forced to cut back on hiring, expansion, employee benefits and other priorities for working families as a result of [ObamaCare’s] hostile mandates and penalties.”

In February, conservatives trumpeted a Congressional Budget Office report as proof that ObamaCare was a job-killer. Mangling the report’s actual findings, Republicans claimed that the C.B.O. expected the law to “destroy 2.3 million jobs.” “The middle class is getting squeezed in this economy,” Boehner said, “and this C.B.O. report confirms that ObamaCare is making it worse.”

This in itself was a deep dive into cynically willful distortion. What the C.B.O. actually said was that many Americans would now opt to work less because ObamaCare would help them better afford health insurance. Over the next decade, people would reduce their workloads to the equivalent of 2.5 million people voluntarily leaving the labor force, which the C.B.O. said “stems almost entirely from a net decline in the amount of labor that workers choose to supply.”

But let’s momentarily grant Boehner’s grossly inaccurate gloss on the C.B.O. report. Contributing to the expected decline in full-time-equivalent workers is — that’s right — the employer mandate. The C.B.O. expected the employer mandate penalty to initially deter employers from hiring. But eventually, it said, “the penalty will be borne primarily by workers in the form of reduced wages or other compensation” — reducing incentives for people to work.

So those 2.3 million jobs destroyed and that middle-class squeeze that Boehner (falsely) warned us about? The employer mandate is a culprit — a culprit that John Boehner is now going to court to defend.

The irony is that Boehner’s lawsuit comes at a time when liberals are abandoning the employer mandate in growing numbers. ObamaCare included the mandate because liberal groups like labor unions saw it as an important way to impose social responsibility on employers. But many left-leaning wonks and think tanks have grown skeptical of the mandate because it imposes costs on hiring while doing little to expand insurance coverage — policy weaknesses that might explain the administration’s delays in implementation.

Of course, Boehner’s lawsuit isn’t really about the policy wisdom of the employer mandate. Looking to sue Obama for something, he latched onto the mandate because there’s a tenable argument that Obama’s delays have exceeded his executive authority. Boehner probably just isn’t the right legal party to bring the suit.

Nonetheless, Boehner’s suit is a product of the Republicans’ own abdication of responsible governance. With growing bipartisan agreement that the employer mandate is bad policy, repealing it ought to have been an easy legislative fix. But once Republicans took control of the House in 2010, the legislative process around healthcare completely broke down. Republicans held vote after vote to repeal the law in total, refusing to entertain constructive measures that might improve it.

True, House Republicans passed a bill to delay the employer mandate legislatively — but it also would have delayed the law’s crucial individual mandate. This wasn’t substantive legislating, but rather a dramatization of a Republican talking point: that it was unfair for the administration to give employers relief without doing the same for individuals (even though the two mandates bear no policy relationship).

Facing a broken legislative branch, Obama had little choice but to round out the law’s rough edges through his own executive authority. Boehner’s threat to sue him for so doing is a replay of Republican tactics during the debt-ceiling crisis. There, Republicans threatened to impeach Obama if he ignored their failure to increase the nation’s borrowing limit. Just as they do now, Republicans promised legal reprisal for Obama’s steps to fill a void of responsible governance of their own creation.

Ultimately, the absurdity of this lawsuit shouldn’t come as a surprise. Boehner is suing Obama to speed up implementation of bad policy that he openly opposes. Over the last four years, we’ve seen a consistent preference from Boehner and his caucus for empty stunts over honest policymaking. It’s enough to make you cynical.

Joel Dodge

Joel Dodge is a writer and attorney in New York City. His work has appeared in Quartz, The Week, The New Republic, and The American Constitution Society.