Humiliated by Congress' Own Research Service, GOP Appears to Abandon Obama Lawsuit

You know how John Boehner got drunk one night and decided to sue the President of the United States for doing what his party had been begging him to do for months? You know how the Republican House voted with much fanfare to sue the President back in June?

Yeah, it doesn't seem like that's happening anymore. Republicans in the House are quietly licking their wounds and appear to be backing away from the strategy as four months after the House vote, Republicans have thus far been too cowardly to even file the suit in court.

But why? This unnoticed report released more than a month ago from the Congressional Research Service (that House Republicans themselves requested and then "forgot" to release) may provide a window into the reason: the nonpartisan body determined that Boehner's latest stunt was even more stupid than his previous ones. Boehner's plan to sue the President over his exercise of administrative discretion in the delayed enforcement of certain portions of the Affordable Care Act - specifically, the subject of Boehner's unfiled lawsuit: the matter of delaying the employer mandate - was found to be nothing out of the ordinary.

The CRC was skeptical to begin with as to whether this specific action had any grounds for a suit at all. The Administrative Procedure Act (APA), which governs such matters, as well as the courts would only even entertain a lawsuit if the Administration failed to meet a legally mandated procedural deadline.

...a claim of unreasonable delay can only be brought against an agency for actions that the agency is legally obligated to take. The Supreme Court has stated that “a claim under § 706(1) [of the APA] can proceed only when a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” If the decision to act is “committed to agency discretion by law,” then no claim can be made against the agency for failing to take such an action. In other words, an agency must be required to act by law in order to establish a claim that the agency has unreasonably delayed in acting.
— Congressional Researh Service

An administration cannot simply be sued to compel administrative enforcement action if no such specific requirement is written into the law. It isn't enough for the law to grant the regulatory authority, but to mandate action, a law must compel enforcement action. The CRC explained that action could be compelled if the law required an agency to make a rule by a deadline and it had failed to do so (even then there's a balancing test that courts use), but not simply for failing to enforce a legal requirement the day it goes into effect

After all, the Congressional Research Service pointed out, the IRS had not acted in contravention of a Congressional mandate. The delay of the employer mandate also does not preclude from the legal provision from going into effect, nor does it prevent companies from complying with the provision.

For example, on July 3, 2013, the Internal Revenue Service (IRS) issued Notice 2013-45 (Notice), stating that the IRS would not enforce the “employer mandate” of the ACA during 2014 in order to allow for “additional time for input from employers” on how the law can be effectively implemented. The Notice further encourages employers to “voluntarily comply with the information reporting provisions.” The IRS promulgated the Notice without undergoing notice and comment rulemaking procedures. However, the IRS does not appear to impose a new legal obligation on any parties, but, rather, the IRS seems to notify the public of its intent to not enforce these provisions against employers during 2014. A court would likely find that such a statement is a guidance document, because it merely notifies the public on how the agency plans to perform a discretionary function—enforcement discretion.
— Congressional Research Service

Hammer, meet nail. That is the Congressional Research Service's way of calling bullshit on Republicans' claim that simply by delaying the enforcement of a given provision, the President was "effectively creating his own law" (because there is something different about this president which should mean that he should not be allowed to do what every other president has done since the beginning of presidents - exercise executive discretion, yes?).

Given the fact that Republicans in the House have not had the time to file the lawsuit they so loudly announced approving, it is proving to be exactly what everyone with a half a brain has always thought: A GOP political stunt to tickle their Tea Party base. And why wouldn't they? This isn't the first time Teabaggers have fallen for every stupid stunt by the GOP (anyone remember how Mitt Romney was going to win 300 electoral votes?).

But then again, maybe the GOP House has just been too busy not getting anything done to take the few blocks walk down to the federal courthouse to file this URGENT lawsuit to stop "King Obama" and the monumental "Constitutional crisis". You think?

Nah. Republicans do believe there is a Constitutional crisis, though. Because this president is... just... different. Not 'murkin. 'Foreign'. I'm sure it's there. Somewhere. I just can't place my finger on it.

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