“Change This Law!” “OK” “You’re Not Allowed to Change It!”

GOP members of the House are planning to sue President Obama for his decision to delay enforcement of the employer mandate in the ACA for a year. 

I don’t understand this. I don’t see how it makes sense on legal, political, or governmental grounds. 

Legally, doesn’t one have to have standing to sue? Wouldn’t you have to be a business owner who was somehow harmed by this change, or maybe a private insurer harmed by the lessened requirements? And then, what are they suing for? Monetary damages? An injunction? Reinstatement of the requirement? And why sue? If he’s done something outside of the bounds of the President’s authority, isn’t that sufficient grounds to impeach Obama? Surely, if lying about having an affair (something that has absolutely nothing to do with governance), is good enough to justify impeachment, violating the Constitution and usurping legislative authority would be sufficient cause?

Politically, there are two obvious problems with this.

First, the GOP is suing to reinstate something they don’t want, which is part of something else they really don’t want. I’m not sure the political calculus on this. Maybe they want the ACA to be as onerous as possible, so they can point at it and say “see? look at how awful the Dems’ ideas are!” But that’s quite a balancing act: they’re counting on people to blame the party that enacted the law but was willing to recognize a problem and modify it, and not blame the party that reinstated the problem part of the law that they’re busy pointing at and telling us is horrible.  

Second, one of the big arguments of the GOP is that “activist judges” are ruining America by overreaching the judicial role and imposing their will on the other branches of government. So they need to thread the needle of arguing that a judge should overrule the President, who enacted a clearly populist measure which hasn’t been challenged by the people in any significant numbers, in order to re-enact a very unpopular measure, while arguing that in this case it’s not “judicial activism” even though the people’s representatives had previously tried to enact exactly the same measure, claiming that it was what people wanted.  

Governmentally, their argument is about the balance of power between the branches of government. As previously mentioned, they need to argue that a judge intervening in this case is different from a judge intervening in other cases. There clearly are differences, of course, but that doesn’t make it an easy explanation, and it’s not clear that the differences are germane. They also need to make an argument that this particular executive order is somehow illegal, while continuing their argument that executive orders in general are just fine (because otherwise W’s record comes up, and/or they hamstring a future GOP President with a Dem congress. Not to mention, they need to do all this without anyone bringing up the “unitary executive” theory that they only recently supported. And they need to explain how an executive order that modifies a law is different than a signing statement that modifies a law. And, finally, they need to explain why neither enacting a law to overrule the executive order—something that has been done in the past—nor impeachment are possible solutions to this problem. 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s