Boehner's First Lawsuit: Obamacare is the Lucky Winner

| Thu Jul. 10, 2014 8:25 PM EDT

I am pleased to report that John Boehner has taken my advice. He introduced a House resolution today that would give him authority to sue the president, and here's what it says:

Resolved, That the Speaker may initiate or intervene in one or more civil actions on behalf of the House of Representatives...to seek appropriate ancillary relief...with respect to implementation of (including a failure to implement) any provision of the Patient Protection and Affordable Care Act....

Blah blah blah.

And just which provision of Obamacare does Boehner plan to target? Here you go:

"In 2013, the president changed the healthcare 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," Boehner said in a statement. "That's not the way our system of government was designed to work. No president should have the power to make laws on his or her own."

Well, Obama didn't "literally waive" the employer mandate, he just delayed it for two years. But close enough!

Now, there are two sides to this. On the positive side for Boehner, it's fairly defensible as these things go. It's not a slam dunk, but you can make a decent case that Obama really did overstep the plain text of the law. However, the downside is that Obama probably doesn't care much about this. It's a fairly minor provision of the law, and if he loses the case it doesn't do any serious damage to Obamacare. In fact, the only damage it does is to the small employers who asked for the delay. So really, Boehner is only setting himself up to oppose the interests of small businesses.

But here's the really interesting thing about this: Boehner is suing over a provision of the law that's been delayed until 2016. But a lawsuit like this takes a while. It'll take a while to file the documents, and then a while longer to get on the calendar of a district court. Then another while for a hearing and a ruling, and then yet another while for an appeal. Then yet another while if the White House asks for an en banc review. And then finally yet another while as it goes up to the Supreme Court. How long altogether? I'd guess a minimum of a year and a half, and probably more like two years. So the best case for conservatives is that the Supreme Court takes it up in late 2015. By the time they're ready to rule, it's moot because the mandate has taken effect and Obama is out of office.1

Boehner is smart enough to know all this perfectly well. In other words, he knows that this is purely a symbolic gesture. Not only does Obama not really care much about it, but it's vanishingly unlikely that the Supreme Court will ever hear the case. That makes it an almost perfect piece of theater. Neither side cares much, and it will never be decided. Boehner gets to say he's doing something, Obama gets some mileage out of mocking him, and that's it. The real-world impact is literally zero.

And that might be just what Boehner wants.

1This assumes that any court is willing to grant Boehner standing to sue in the first place.

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