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On July 30, 2014, the House voted 225 to 201 in favor of a resolution to file a lawsuit against the Obama administration. The lawsuit challenged the delay of the ACA's employer mandate and the administration's payment of subsidies to insurers for providing a reduced cost burden to low-income consumers under the law.^[1] The case was filed asU.S. House of Representatives v. Burwell on November 21, 2014.^[2] In September 2015, the U.S. District Court for the District of Columbia ruled that the House could proceed with its lawsuit challenging the use of unappropriated funds for new healthcare subsidies; however, the House could not sue the executive branch for delaying implementation of the employer mandate.^[3] In May 2016, the same district court ruled that the executive branch could not use unappropriated funds to subsidize insurance companies.^[4] The ruling was stayed to allow for appeal.

Background

Word of a potential lawsuit initiated by thenSpeaker of the HouseJohn Boehner against PresidentBarack Obama and his administration began to circulate in June 2014. On June 24, 2014,Boehner confirmed to reporters at a press conference that he planned to initiate a suit to sue the president over his use ofexecutive action.^[5] During the press conference, he also indicated that in July he would bring a bill to the House floor authorizing a Bipartisan Legal Advisory Group (BLAG) to file the lawsuit against the President. The group is made up of the top threeHouseGOP leaders—thenSpeaker of the HouseJohn Boehner, majority leaderKevin McCarthy and majority whipSteve Scalise—and the top twoDemocratic leaders—the minority leaderNancy Pelosi and minority whipSteny Hoyer.^[5]

In aJune 2014 memo to House members announcing the vote needed to authorize BLAG, Boehner indicated the legal action would cover a number of issues--including health care law, energy regulations, foreign policy and education-- but did not cite specific cases of executive overreach.^[5] However, Boehner bypassed the step when, following a consult with legal experts, he "decided a BLAG vote was unnecessary."^[6]

On July 10, 2014, it was announced that the lawsuit would focus on Obama's failure to enforce thePatient Protection and Affordable Care Act'semployer mandate.^[7] The case would also focus on the executive branch's payments to insurance companies, totaling about $3 billion dollars, without express appropriation by Congress.^[8] The lawsuit could cost up to $350,000 in legal fees.^[9]

Employer mandate delay

See also:Obamacare overview

Boehner revealed on July 10, 2014, that the suit would focus on the president's failure to enforce thePatient Protection and Affordable Care Act's employer health insurance mandate deadline. He claimed PresidentObama "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."^[10]

The law stated that businesses with over 50 employees needed to offer health benefits before the 2014 deadline or face a fine for not complying with the law. The administration delayed the deadline in July 2013 by one year and then again in February 2014 by another year, pushing the mandate deadline to 2016 for businesses between 50 and 99 employees.^[11][12] Obama was asked in 2013 about the legality of the delay, to which he responded, "If Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case. But there’s not an action that I take that you don't have some folks in Congress who say that I'm usurping my authority.^[11]

Rules Committee ChairmanPete Sessions (R-TX) announced the draft resolution that would be considered by theHouse Rules Committee on July 16, 2014, with a possible vote on the House floor the following week.^[10][7] Sessions said of the lawsuit, "The President’s failure to uphold his oath dangerously shifts the balance of power away from what the Founding Fathers intended and the Constitution requires. Congress’ ability to effectively represent the American people is severely restricted when the executive unilaterally chooses to create its own laws."^[7]

However, JudgeRosemary Collyer of the U.S. District Court for the District of Columbia dismissed this part of the lawsuit. She wrote, "if it were accepted, every instance of an extra-statutory action by an executive officer might constitute a cognizable constitutional violation, redressable by Congress through a lawsuit. Such a conclusion would contradict decades of administrative law and precedent."^[13]

Unappropriated funds

The lawsuit also claimed that that the executive branch's use of unappropriated funds violated Article I of the Constitution, which delegated the spending power to Congress. The executive branch had made payments to insurance companies to compensate them for offering reduced-cost plans through thehealth insurance exchanges. These funds had not been expressly appropriated by Congress, and were estimated to total $3 billion in fiscal year 2014 alone; for 2017, these payments were estimated to cost $7.35 billion. The U.S. District Court for the District of Columbia allowed the House to proceed with this portion of the lawsuit, holding that the use of unappropriated funds might constitute "an invasion of a legally protected interest that is concrete and particularized. Article I [of the Constitution] could not be more clear: 'No Money shall be drawn from the Treasury, but in consequence of Appropriations made by Law' . . . Congress' power of the purse is the ultimate check on the otherwise unbounded power of the executive."^[14][15][16]

In May 2016, the same district court ruled that the executive branch could not use unappropriated funds to subsidize insurance companies. The ruling was stayed to allow for appeal. On July 6, 2016, The Obama administration appealed the district court decision to theU.S. Court of Appeals for the D.C. Circuit. On November 21, 2016, the House filed a request with theU.S. District Court for the District of Columbia to suspend further proceedings in the case, pending new policies enacted by the Trump administration.^[17]

Timeline of events

• June 24, 2014:Speaker of the HouseJohn Boehner announced plans to initiate lawsuit against theObama administration.

• June 25, 2014:Memo sent to members ofCongress

• July 10, 2014: Boehner announced the lawsuit would focus on the president's failure to enforce the employer mandate set by thePatient Protection and Affordable Care Act^[18]

• July 16, 2014: Hearing began before theHouse Rules Committee to consider and debate the merits of the legislation that would authorize the lawsuit.^[19][20]

• July 24, 2014: TheHouse Rules Committee approved a resolution allowing the fullHouse to vote on authorizing a lawsuit against PresidentBarack Obama. The 7-4 vote was split along party lines, with twoRepublican members who did not vote.^[21]

House Rules Committee vote on resolution 676, July 24, 2014
Party	Votes for bill	Votes against bill	Total votes
Democrats	0	4	4
Republicans	7	0	7
Independents	0	0	0
Total Votes	7	4	11

^[22]

• July 29, 2014: Boehner called talk of impeachment a "scam dreamed up by the White House."^[23]

• July 30, 2014: TheU.S. House voted to sueObama 225 to 201. FiveRepublicans voted withDemocrats against the lawsuit:Paul Broun of Georgia,Scott Garrett of New Jersey,Walter Jones of North Carolina,Thomas Massie of Kentucky andSteve Stockman of Texas. Three Republicans,Alan Nunnelee (R-MS),Scott DesJarlais (R-TN) andMike Pompeo (R-KS), did not vote on the resolution.^[24] No Democrats voted for it.^[25][26]

House vote on HR 676, July 30, 2014
Party	Votes for bill	Votes against bill	Total votes
Democrats	0	196	196
Republicans	225	5	230
Independents	0	0	0
Total Votes	225	201	426

^[27]

• August 25, 2014:Candice Miller (R), chairwoman of theHouse Administration Committee, announced a contract with lawyer David B. Rivkin Jr. of the BakerHostetler law firm, who was chosen to represent the U.S. House in its lawsuit against President Obama. The contract stated the House would pay Rivkin $500 per hour and was set to expire in January 2015, meaning the total cost would be, at most, $350,000.^[9][28]

• November 21, 2014: TheU.S. House of Representatives filed the lawsuit against the Obama administration for acting unilaterally regarding the implementation of theAffordable Care Act. The lawsuit namedHealth and Human Services SecretarySylvia Mathews Burwell andTreasury SecretaryJack Lew, along with their respective departments, as the defendants in the case.^[29]

• September 9, 2015: TheU.S. District Court for the District of Columbia ruled that the House did indeed have standing to sue over the use of unappropriated funds. The court dismissed the House's claim that the executive branch usurped Congress' legislative power by delaying the employer mandate.^[30]

• May 12, 2016:U.S. District Court for the District of Columbia found in favor of the House of Representatives, ruling that the executive branch could not use unappropriated funds to subsidize insurance companies.^[31]

• July 6, 2016: The Obama administration appealed the district court decision to theU.S. Court of Appeals for the D.C. Circuit.^[32]

• November 21, 2016: The House filed a request with theU.S. District Court for the District of Columbia to suspend further proceedings in the case until February 21, 2017, pending new policies enacted by the Trump administration.^[33]

• February 21, 2017: The House of Representatives and theU.S. Department of Justice filed a joint motion to hold the case in abeyance, instead providing a status update to the court every three months.^[34]

• May 22, 2017: The House of Representatives and the Department of Justice gave their first status update to the court. The two parties asked to continue the abeyance for another three months, citing ongoing discussions surrounding potential legislative actions, such as theAmerican Health Care Act.^[35]

Specifics of the lawsuit

Funding: The lawsuit is completely taxpayer funded with outside lawyers being hired.^[36][37]

Lawyers representing the U.S. House: Two lawyers, first David Rivkin Jr. of BakerHostetler and later Bill Burck of Quinn Emanuel, backed out of the case.^[38] In November 2014, the U.S. House hired a third lawyer, George Washington University law professor Jonathan Turley, to represent them in the lawsuit.^[39]

Judge: The case was assigned to JudgeRosemary Collyer of theD.C. District Court.^[40]

Legal process:

• Step 1: House Republicans first investigatedPresident Obama's executive orders to lay out specific instances in which the president violated laws.

• TheHouse Rules Committee convened "a panel of legal scholars to discuss the merits of a lawsuit against Obama."^[41]

• Step 2: The House Rules Committee drafted a resolution authorizing Boehner to go forward with the lawsuit.

• With a Republican majority in the committee, which is led by Rep.Pete Sessions (R), Democrats on the committee had little chance of revising the resolution.^[41]

• Step 3: Although the original plan was to convene the Bipartisan Legal Advisory Group (BLAG) to approve the final wording of the lawsuit, Boehner "decided a BLAG vote was unnecessary, after consulting legal experts.”^[42][43][6]
• Step 4: The suit went to the House floor for a final vote by all Representatives on whether or not to go forward with the lawsuit.^[44]

• With a Republican majority in the House, the lawsuit passed.

• Step 5: The lawsuit was filed on behalf of theU.S. House of Representatives as a whole.^[43]

• The lawsuit will start out in theD.C. District Court, and the case could then be appealed to theD.C. Circuit Court and, finally, theU.S. Supreme Court.^[43]

Requirements of the lawsuit:

• Boehner's lawyers stated that, in order to pursue a lawsuit, the House must be able to "demonstrate a concrete, particularized injury, caused by the defendant, which can be remedied by a court."^[45]
• For the lawsuit to have standing, The House would have to accomplish the following goals, according to Rivkin:^[46]

• "to prove injury as an institution
• to prove that as an institution, it has authorized the lawsuit, through a vote by BLAG
• to prove that no other private plaintiff has standing to challenge
• [to prove] that there are no political remedies available to Congress."

Intended outcome

• Boehner denied that the move was about energizingRepublicans ahead of the2014 midterm elections.^[5]
  • "This is about defending the institution in which we serve. If you look back over the past 235 years of our history there's been movement between the inherent powers of the executive branch vs the inherent powers of the legislative branch and what we've seen clearly over the past 5 years is an effort to erode the power of the legislative branch," Boehner said.

Response

Republican

Republican support

• Republicans argue thatPresident Obama is breaching the constitutional power of the executive branch by side-stepping the legislative process.^[5]

Republican criticism

Sarah Palin

• Conservative blogger and editor Erick Erickson spoke out against the lawsuit, stating, “John Boehner’s lawsuit is nothing more than political theater and a further Republican waste of taxpayer dollars"^[47]

• Conservative author Andrew McCarthy ridiculed Boehner's threat: "Boehner and Beltway Republicans are essentially saying, 'We can't use our power because Obama and his media friends would say mean things about us. But our lunatic conservative base is demanding action. So let us file a lawsuit so we can say we did something."^[48]

• After calling for President Barack Obama’s impeachment,Sarah Palin criticizedJohn Boehner’s plan to sue the president and demanded tougher action.^[49]
  • Instead,Palin pushed forObama’s removal from office for what she says are 25 impeachable offenses that include actions taken on immigration andObamacare.^[49]
  • “You don’t bring a lawsuit to a gunfight, and there’s no room for lawyers on our front lines...“A great awakening is due in this country and this is a message that will be sent to the president, that he is not an imperial president and lawlessness will not be accepted by the American people. That’s not what he was elected to do … to create his own laws as he goes along,” Palin said on July 8, 2014.^[49]

Democratic

Barack Obama

• President Obama responded to Boehner's threat of a lawsuit by labeling it a "stunt" and placing the blame for his executive orders on Republicans, who he claimed would not pass legislation in the House. Obama stood by his actions, stating, "I’m not going to apologize for trying to do something while they’re doing nothing.”^[50]
• White House Press SecretaryJosh Earnest claimed it was "disappointing that Speaker Boehner and Congressional Republicans have decided to waste time and taxpayer dollars on a political stunt."^[7]
• FormerGovernor of Pennsylvania Ed Rendell (D) said of the lawsuit, “The constitution says you can impeach the president for high crimes and misdemeanors. There is nothing PresidentObama has done that is remotely close to a high crime or a misdemeanor.”^[51]
• House minority leaderNancy Pelosi called the suit a “legal boondoggle doomed to fail.”^[19]
  • “This lawsuit is just another distraction from House Republicans desperate to distract the American people from their own spectacular obstruction and dysfunction,” Pelosi said in a statement.^[19]
• Democratic Congressional Campaign Committee ChairmanSteve Israel issued a statement saying,“First thisRepublicanCongress shut down the government over the Affordable Care Act and cost the economy billions of dollars. Now, they’re spending millions more to sue the president over ACA.Is there any question why a Congress that continues to force middle class families to foot the bill for their political stunts is the least popular in history?”^[52]
• John Yarmuth (D-KY) called the lawsuit a "tantrum" that will cost American taxpayers.^[53]
  • "This is a taxpayer-funded tantrum and a lawsuit they don't even want to win," Yarmuth said.^[53]

Past precedents

While American history has not provided a case similar to what Boehner has filed against President Obama, there have been lawsuits filed by members of Congress against presidents and their actions.^[43] The following instances are some of the most notable in U.S. history.

NLRB v. Noel Canning Corp.

TheNational Labor Relations Board v. Noel Canning Corp. case was decided in favor of Noel Canning Corp. on June 26, 2014, with the ruling being that the president could not use the power of recess appointments when the Senate holds pro-forma sessions where the chamber does not conduct business but is not officially on recess. President Obama appointed three members to the NLRB in 2012 and labeled them recess appointments, bypassing Senate approval. The ruling stopped short of revoking the ability to appoint officials during an official recess, but it did refine the rules of the executive power. The case was decided 9-0, but the reasoning varied greatly among the justices.

JusticeStephen Breyer wrote of the decision, that the power to appoint officials during a recess "is not designed to overcome serious institutional friction."Antonin Scalia argued that the court should have pressed further, saying presidents have too long treated theappointment confirmation process as an "unreasonable burden."^[54]

Clinton v. Jones

Former presidentBill Clinton was sued in 1994 by Paula Jones, who accused him of making sexual advances toward her when he was governor ofArkansas and she was a state employee. Then-President Clinton attempted to gain temporary immunity from the Supreme Court, arguing that his duties as president did not allow the time to go through the trial. The Supreme Court ruled against Clinton which created the precedent that a sitting president would not be immune to civil lawsuits resulting from before their time as president or if the lawsuit was unrelated to the office.^[55]

United States v. Nixon

During the Watergate investigation, Nixon was issued a subpoena for audio tapes of conversations with members of his staff in search of evidence of his involvement in the scandal. Nixon provided edited tapes to the court, but he claimed executive privilege allowed him to keep records between high ranking officials confidential. The Supreme Court ruled unanimously against Nixon's claim of executive privilege due to the likelihood that the tapes contained evidence of his involvement. Nixon resigned as president 15 days after the court ruling amid the threat of impeachment.^[56]

Nixon v. Fitzgerald

The 1982U.S. Supreme Court ruling inNixon v. Fitzgerald, ensured the president "is entitled to absolute immunity from damages liability predicated on his official acts," by private citizens. The 5-4 majority included Chief Justice Warren Burger and Justices Lewis Powell, William Rehnquist, John Paul Stevens and Sandra Day O'Connor. According to the opinion of the court, the immunity from civil damages was due to the "President's unique office, rooted in the constitutional tradition of separation of powers and supported by our history."^[57]

Justices William Brennan Jr., Byron White, Thurgood Marshall and Harry Blackmun voted in dissent. The dissenting opinion revolved around the idea that no president should be "above the law."^[58]

Congressional lawsuits

Justice Lewis Powell noted in the footnotes of the majority opinion, however, that "We need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States." The footnote in this case left open the possibility of members of Congress bringing a case against the president.^[57]

Recent news

This section links to a Google news search for the termBoehner + Obama + lawsuit

See also

• United States Congress
• United States Senate
• United States House of Representatives
• Obamacare overview
• Obamacare lawsuits
• U.S. Department of Health and Human Services
• Healthcare.gov website rollout
• Health insurance policy cancellations since Obamacare

External links

• United States House of Representatives website
• United States Senate website
• U.S. House of Representatives v. Burwell Complaint

Footnotes

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