The farce that is the modern-day Tea-Publican Party just keeps making the tragicomedy of our political system even worse.
Steve Benen writes, House Republicans finally file anti-Obama lawsuit:
It took them long enough. Four months after announcing their intention to sue President Obama, House Republicans finally followed through.
* * *
Jane C. Timm reported:
House Republicans on Friday filed a long-anticipated lawsuit against the White House, alleging the Obama administration abused its power by making unilateral changes to the implementation of the Affordable Care Act.
The lawsuit comes just hours after President Obama enacted sweeping changes to the immigration system, enraging conservative lawmakers and setting the stage for an all-out war between the Republican Party and the president over the limits of his executive authority. The legal action threatens not only the president’s healthcare overhaul, but could change the power of executive authority forever.
How we got to this point continues to be a story unto itself. As we talked about last week, House Speaker John Boehner (R-Ohio) first announced his plan to sue the president back in June. A month later, the Speaker’s office formally unveiled the legislation to authorize the litigation. A month after that, House Republicans agreed to pay a D.C. law firm $500 an hour, in taxpayer money, to handle the case.
Things went downhill from there. Republicans hired a law firm to oversee the litigation, but the firm changed its mind in September and dropped the case. GOP leaders then hired a second firm, only to learn a month later that it dropped the case, too.
This week, Republicans hired a new lawyer, George Washington University legal scholar [and media whore] Jonathan Turley, who filed today.
Of course, what really matters is what the case is about and whether it’s likely to succeed.
In a bit of a surprise, the lawsuit actually has two parts. The first, as expected, deals with the employer-mandate policy, which the administration delayed implementing. This has always struck me as a little silly.
The second, which was completely unexpected, is a little more complicated. Sarah Kliff explained:
The government makes these payments to insurance companies for a little-known program called “cost-sharing reductions.” These are subsidies that low-income people get to help cover the out-of-pocket costs above and beyond monthly premiums. Cost-sharing subsidies essentially cap how much Obamacare enrollees have to pay for co-payments, co-insurance, and other forms of cost-sharing.
The limit is on a sliding scale by income, so someone right at the poverty line would be expected to spend no more than $2,250 on out-of-pocket insurance costs. The cost-sharing reduction would kick in to cover anything above and beyond this. You can see how the cost-sharing limit goes up with income in this chart from the Kaiser Family Foundation.
The federal government pays the cost-sharing subsidy directly to the insurance plan. So if, for example, someone right at the poverty line had $3,000 in out-of-pocket costs, she would pay $2,250 — and the government would send along the other $750.
In other words, the lawsuit targets the health insurance subsidies that keep your out-of-pocket health insurance costs “affordable.” Tea-Publicans want to increase your costs of health care. They are targeting you, Americans.
Republicans really shouldn’t get their hopes up about any of this – not only will GOP lawmakers struggle to establish standing, similar cases have fared poorly. There’s also the matter of Republicans turning to the courts to settle disputes between the White House and Congress, which as Jonathan Bernstein noted, carries its own risks.
Just last month, The Congressional Research Service Finds that Boehner’s Lawsuit Has No Legal Basis:
[The CRS report] 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.[See 7th Circuit ACA Employer Mandate Ruling (Scribd).]
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.
Clearly, Tea-Publicans do not care. Everything they do is for consumption by the conservative media entertainment complex and for GOP fundraising. It is about picking the pockets of the rubes who suffer from Obama Derangement Syndrome and who believe in this GOPropaganda. And that is the real crime.
UPDATE: Here is a copy of the House Lawsuit (.pdf). Oddly enough, the House is only asking for a Declaratory Judgment that its interpretation of various provisions of the law are correct. Courts do not issue advisory opinions, especially in matters that present a political question under the separation of powers doctrine.
The lawsuit does not ask the Court to grant any relief regarding the employer mandate. The only injunctive relief requested is to prohibit the Treasury Department from making “offset payments” (subsidies) to insurers to reduce the cost of your health care insurance.
As Joan McCarter noted at Daily Kos, “As usual, they don’t want to actually do something concrete about the law, just have ammunition for talking about doing something about the law. ” Tea-Publicans are pissing away your tax dollars on frivolous lawsuits again.