When, back in July, Speaker John Boehner secured House authorization to file suit against President Obama for “changing the health care law without a vote of Congress, effectively creating his own law,” cynical Democrats derided the planned litigation as a “political stunt,” a talking point for the fall campaign playbook. But a report by the apolitical Congressional Research Service (CRS), completed on September 4, but never released by the member who sponsored it, nor mentioned in the press, indicates that the Democrats were not cynical enough.
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.
CRS reports such as this one are generated in response to requests by members or committees of Congress, though the CRS does not make public the identity of the requester or requesters. This particular report – of which House Democrats were unaware until it appeared – bears the earmarks of an inquiry, requested by the Speaker or his allies, to give some color of legitimacy to their charges of rampant presidential illegality. Instead, the result validates the lawyers’ maxim not to ask a question when unsure of the likely answer. 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.” What the Report – understandably – does not say, is that it was this very regulatory delay that first triggered Republicans’ “lawlessness” outcry. Within a week of the Treasury Department’s announced postponement, indignant editorials, op eds, and blog posts popped up in the Wall Street Journal, National Review, and other conservative bastions, over professorial signatures from the likes of Stanford’s Michael McConnell and Georgetown’s Nicholas Rosencrantz, all variations on a script alleging serial violations of Obama’s constitutional duty to “take care that the laws be faithfully executed.” Well, the CRS report concludes, actually not. Indeed, its authors note, such delays are anything but unique to the Obama administration’s implementation of the ACA. On the contrary: “Often the agency has simply not been able to accomplish the required action within the time provided by Congress.”
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. In bland CRS-speak, this seems like a veritable finger in the eye – or perhaps, a blunt warning to the Speaker to drop the lawsuit project.
The CRS has not been alone in cautioning that this sue-Obama gambit would prove an “embarrassing loser,” as former House Legal Counsel Charles Tiefer testified to the House Rules Committee on July 16. Scattered conservative legal scholars summoned the intellectual integrity to go public with skepticism. On September 23, eminent Seventh Circuit Reagan appointee Judge Frank Easterbrook dismissed a case challenging the ACA employer mandate, with a curt opinion that signaled that Boehner’s House colleagues probably would be deemed to lack the personal “particularized injuries” prerequisite for legal standing to get into court. More telling, indeed humiliating, on September 19, Boehner was fired as a client by the firm he had hired to prosecute his suit; reportedly, the firm had been advised by clients that continuing with the representation could harm its credibility.
Whether or not House Republicans heed these omens, more broadly revealing is the fact that they have invested this heavily in a scheme to recruit the federal judiciary for ends so transparently political and legally meritless. Evidently, after years of 5-4 Roberts Court decisions displacing legal precedent to advance Republican ideological and political agendas – in high-stakes fields such as minority voting rights, campaign finance restrictions, abortion, and, last term, religious preferences of conservative business owners versus Obamacare women’s health protections for their employees, conservative politicians and activists have come to count on their political kin on the federal bench to toe their lines.
Perhaps all these cautionary yellow lights flashing at Boehner’s lawsuit foreshadow limits to conservative judges’ tolerance for being viewed as Republican fixers, limits that could be close to being reached, or broached. Indeed, other such straws have appeared in recent winds. The Supreme Court started its new term boosting the number of states where same-sex marriage is legal from 19 to 30, one deft stroke, by simultaneously denying petitions for review of several appellate court decisions invalidating state bans on same-sex marriage. Last week, Chief Justice John Roberts broke ranks with the three other normally reliable anti-abortion justices – Antonin Scalia, Clarence Thomas, and Samuel Alito – to effectively reopen 13 abortion clinics in Texas, by putting on hold a decision by the Fifth Circuit Court of Appeals that had upheld a Texas law forcing their closure. Two weeks earlier, Roberts used a widely publicized speech to a University of Nebraska audience to decry the potential for “partisan rancor [to] spill over and “politicize” the Court, sharing his “worr[y] about people having that perception.”
A near-term chance looms, for Roberts and his colleagues to demonstrate his professed zeal to “keep the partisan divide on the other side of First Street.” This involves the latest twist in the litigation threatening to cut off federal subsidies on, Affordable Care Act exchanges in the 36 states where they are managed by the federal government, thereby shutting down those exchanges altogether and stripping nearly five million individuals of health insurance. The challengers’ attorney, Michael Carvin, has asked the Supreme Court to take the highly unusual step of immediately taking control of the case, thereby preempting a potentially adverse ruling by the full District of Columbia Circuit’s thirteen judges. With disarming candor, Carvin recently confided that his serene confidence in success rests squarely on the political leanings of the Supreme Court’s five conservatives, who, he sneered, are not “going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think.” The high Court could consider Carvin’s petition as early as an internal conference scheduled for October 31. We could know soon about the soundness of Carvin’s low estimate of the weight carried by legal precedent and judicial practice in the Roberts Court, when the fate of President Barack Obama’s signature accomplishment is at stake.