There's not much that Republicans like about the 2010 Affordable Care Act, but one thing they particularly dislike is the requirement that employers with 50 or more full-time workers provide comprehensive health insurance.
So it's only natural that House Republicans would now be seeking to sue the president for not implementing that mandate on time.
The House GOP is itching to pick a legal fight with President Obama over his administration's practice of bending, waiving or just plain ignoring provisions of federal law to advance its priorities. But the test House leaders apparently have chosen to put before the court, assuming they do file suit, is the delay the administration has imposed in Obamacare's employer mandate.
I don't blame the GOP for wanting to rein in the administration, especially with Obama saying he'll act unilaterally to achieve results that Republicans are trying to prevent. But do Republicans have to be that cynical? Couldn't they sue on behalf of a policy they actually liked and supported?
For instance, what about the way the administration has rewritten No Child Left Behind (an initiative championed by Republican President George W. Bush) through the use of state waivers? Or how about the temporary legal status it unilaterally granted "Dreamers," young foreign nationals who'd been brought into the country illegally by their parents?
The Heritage Foundation offered a long list of possible targets this year, including many causes that Republicans honestly championed. The fact that they chose to defend the Obamacare employer mandate is proof that the principle at the heart of this fight -- the extent of the executive branch's discretion to implement and enforce laws -- isn't what's animating Republicans. It's the politics. The lawsuit provides a chance to keep an unpopular president and a controversial law front and center as the November elections approach.
It's also possible that House Republicans saw the temporary delay in the employer mandate, which was supposed to go into effect this year, as a chance to fight a legal battle without causing any collateral damage. The delay granted in February gives companies with fewer than 100 full-time workers an additional year -- until 2016 -- to comply, while allowing those with 100 or more workers to phase in coverage over the next two years. Considering how long it would take for a lawsuit to work its way through the courts, the delays may have expired by the time a final ruling is handed down.
Lawmakers and the president have tussled over each branch of government's powers for as long as there's been divided government. In fact, according to the Tampa Times' PolitiFact, the third U.S. Congress challenged President Washington's power to declare neutrality in the war France fought with England in 1793.
What makes the current dispute more charged is the enormous gulf between the two sides' views of the appropriate role of government. The House GOP has spent the last 3 1/2 years trying to reduce the reach of federal regulatory agencies, particularly the Environmental Protection Agency, only to be blocked by Senate Democrats. The administration, meanwhile, has tried with little success to persuade Congress to address climate change, the broken immigration system and a slew of other priorities that require a more activist federal presence.
Nor does it help matters that there's plenty of ill will between Capitol Hill Republicans and key administration figures, including Obama. There's so little trust, the GOP sees something sinister afoot even when federal agencies take steps to cushion the impact that new laws may have. Granted, those efforts can also reduce the political damage caused by complex and burdensome new laws. Yet it seems priggish to deny the executive branch the flexibility to make such transitions as easy on the public as possible.
The courts have generally allowed the executive branch leeway to implement and enforce laws, provided its actions stop short of effectively repealing a law or writing a new one. One way to measure that is whether the administration's actions are consistent with lawmakers' goals -- in other words, whether they honor the spirit of the law, even as they take liberties with the letter.
The administration is likely to argue, credibly, that the delays in the employer mandate were prompted by the extended legal battle over the constitutionality of the 2010 law, and that the point was to have a working mandate by the end of the phase-in period. And while it would have been far better to have lawmakers amend the ACA to give the administration discretion to change the mandate's deadline, it was abundantly clear that no such legislation would make it through Congress.
Still, the legal question raised is an important one, as is the question of whether the House can even bring such a lawsuit. It's just too bad Republicans couldn't find a cause they actually believed in.