House to sue Obama over ACA’s employer mandate delay

(Bloomberg) — The U.S. House of Representatives will sue President Barack Obama’s administration over delaying the implementation of an employer health insurance mandate in the Affordable Care Act.

“In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it,” House Speaker John Boehner said in a statement Thursday. “That’s not the way our system of government was designed to work.”

The ACA requires employers with 50 or more workers to provide them with health insurance or pay fines of as much as $3,000 per employee. Under pressure from employers, Obama has twice delayed the requirement.

Boehner, an Ohio Republican, said on June 25 that the House would sue the Obama administration. He cited health care, energy, foreign policy and education waivers that Boehner said are “straining the boundaries of the solemn oath” Obama took in his inauguration.

It's hard to say what impact the lawsuit could have on the rollout of the ACA or benefit advisers and brokers, says Alden Bianchi, a practice group leader of Mintz Levin’s employee benefits and executive compensation practice, adding that he "can't see that there is an aggrieved party here."

"One wonders what's driving the GOP's sudden litigiousness," he adds.

The speaker is acting in part to quell Tea Party members of his Republican caucus, some of whom want to impeach Obama, and to show he can be tough on the president without risking the political damage that an impeachment effort might cause.

To proceed with its suit, the House must vote on the resolution, which won’t need Senate approval and would immediately take effect upon passage.

The House Rules Committee is set to hold a hearing on the draft resolution July 16, and a House floor vote may be held during the last week of July.

Legal doubts

Legal scholars have expressed doubt about whether Republicans can win in court.

Obama has dismissed the effort as a “stunt” and made a scoffing reference to the threatened suit yesterday during a speech in Austin, Texas.

“You’re going to sue me for doing my job?” the president said, adding that Republicans want to use taxpayer money to sue him “while you’re not doing your job.”

Congressional lawsuits brought by lawmakers against an administration generally have been unsuccessful. Republicans first will have to prove that they are directly harmed and have the legal ability to sue, known as “standing.”

It’s a high bar to meet, said Jasmine Farrier, a professor at the University of Louisville, Kentucky, who studies Congress and the courts.

“Courts have said over the past 40 years that members of Congress don’t have the standing to sue if they can solve their problems with a majority,” Farrier said.

Boehner’s argument

Boehner’s team is advancing a fresh argument they say will meet the legal standard for court intervention. Their argument, in part, is that the institution of Congress is harmed by the president delaying part of the health care law.

In July 2013, Obama said employers wouldn’t have to comply with the requirement until 2015. The law allows the administration to set the starting date for an information-reporting rule needed to enforce the mandate, and businesses said they weren’t prepared for the paperwork.

In February, Obama again delayed the employer requirement. Now, no company with fewer than 100 workers has to offer health insurance until 2016, and larger companies must cover only 70 percent of their workforce starting in 2015.

“If this president can get away with making his own laws, future presidents will have the ability to as well,” Boehner said in a statement.