Hushed Up CRS Report Shows Boehner’s Law Suit Has No Merit

One of the big moments in House Speaker John Boehner’s campaign of posturing to convince his restive troops not to proceed with an impeachment resolution against the president was a much-trumpeted decision to file a lawsuit against Obama for “changing the health care law without a vote of Congress, effectively creating his own law.” The House (with not a single Democrat concurring) authorized the suit back in July. For all the wild rhetoric surrounding it, the authorization focused on one small aspect of the Affordable Care Act’s implementation, a one-year delay in the employer mandate requiring an offering ACA-compliant health plans under penalty of a tax.

As Politico’s Josh Gerstein reported on Friday, the suit hasn’t been filed yet.

Why? Well, thanks to some digging by Simon Lazarus and Elisabeth Stein of the Constitutional Accountability Center, we learn in a web-exclusive report at Ten Miles Square today that a Congressional Research Service analysis of the issue–requested by an unknown House member who subsequently kept it quiet–that there’s no legal basis for the suit.

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.

Lazarus and Stein go on to discuss the reliance of Republicans on judicial allies to achieve policy goals they cannot secure in Congress. But in this case, the overreach is just embarrassing.

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Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.