When, back in July, Speaker John Boehner secured House authorization to file suit against President Obama for “changing the health care law without a vote of Congress, effectively creating his own law,” cynical Democrats derided the planned litigation as a “political stunt,” a talking point for the fall campaign playbook. But a report by the apolitical Congressional Research Service (CRS), completed on September 4, but never released by the member who sponsored it, nor mentioned in the press, indicates that the Democrats were not cynical enough.
Now, three months after the party-line House vote to green-light the lawsuit, no complaint has yet been filed. If this stretched out delay means that Boehner has actually redirected his sue-Obama gambit toward oblivion, the reason may be this unnoticed six week old CRS report. While 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.