Boehner Lawsuit ObamaCare Filed

John Boehner filed a lawsuit Nov 24, 2014 to sue the President over taking executive action on the Affordable Care Act (ObamaCare).  The “Boehner lawsuit” focuses on the delay of the employer mandate, the claim that funds are paid to insurers without congressional approval, and overall takes issue with the Presidents use of executive action to implement these changes.

The Legality of Executive Order

Executive orders aren’t just legal, they are pretty common and are eluded to in the Constitution granting the President “executive power” to “take care that the laws be faithfully executed” or to face impeachment.  The most common executive orders are at best mundane.  However, there have been some pretty major changes done through executive action from both sides of the isle including: the Emancipation Proclamation and the New Deal.

Executive order defined: An  executive order, also known as a proclamation, is a directive handed down directly from a president or governor (the executive branch of government) without input from the legislative or judicial branches. Executive orders can only be given to federal or state agencies, not to citizens, although citizens are indirectly affected by them.  You can learn more from howstuffworks.com.

Here is a list of past executive orders by all past Presidents stretching back to Hoover, as well as Wikipedia’s list of executive orders.  As you’ll see it’s a fairly common practice.

Reform Vs. Repeal

For years now Republicans have blocked reform bills and attempted to repeal reforms that did pass.  Republicans charge that the President is out-of-bounds using executive action to implement changes congress would’t approve, Democrats charge Republicans are purposefully blocking issues based off of political games rather than what is good for the country.  If the lawsuit continues to move forward, it will simply be up to the courts to decide.  The final ruling could have implications for not only ObamaCare, but the way congress works moving forward.

Origin of the Boehner ObamaCare Lawsuit

A motion to sue the president was approved by the house almost four months ago, although action was not taken in part because the suit was passed up by two law firms.  However, the suit was taken up again on Nov 24th, 2014 after finding a new law firm to take the case.  The filing of the lawsuit was announced immediately after President Obama took executive action on immigration reform announcing that millions of illegal immigrants will not face deportation.

Reasoning Behind the Boehner Lawsuit

The Boehner lawsuit works on a few different levels.  It is primarily a statement of disapproval of President Obama’s use of executive action.  However it uses the specifics of the delay of the employer mandate and paying out funds to insurers without congressional approval.  So let’s discuss mandate and funds to insurers.

The Employer Mandate Delay Facts

The employer mandate is the part of the law that says large employer must provide health coverage to full-time employees.  This provision was supposed to kick in starting 2014 but was delayed twice and now won’t be fully implemented until 2016.  The employer mandate delays have been a hot button issue for a few reasons, let’s take a look at some employer mandate lawsuit facts to help shed some light on this issue:

The employer mandate is unpopular in general.  Businesses have been responding to the mandate by cutting full-time workers down to part-time to avoid the fee for not insuring full-time workers.  In other words, even though the mandate means full-time employees have the right to insurance… it also means cuts to jobs.  That is NEVER popular.  Given this, neither party is eager to see this come into play.

The employer mandate is unpopular with Republicans.  It may seem weird that house Republicans are pushing to sue the President over a provision they dislike in a law that they don’t like, but the issue they are taking officially isn’t with the provision.  The issue they are taking is with the way the delay was implemented.

If the mandate wasn’t delayed some people would see job loss and others would see health benefits.  Jobs poll as being more important to voters than healthcare, thus delaying the mandate until after the midterms could be seen as a political move by Democrats.

Paying Out Funds to Insurers Without Congressional Approval

Republicans are also suing over the payout of $3 billion to insurance companies in 2014 and $175 billion over the next 10 years in “risk corridor funding” that offsets the reduced co-insurance, co-pays and deductibles that insurers provide through the Health Insurance Marketplace.  This funding is included within the law via the wording “provides that the Health and Human Services secretary ‘shall pay’ risk corridor funding to exchange health plans that qualify”.  This is meant as a way to get more insurers to participate in the marketplace, by helping to ensure they won’t lose money by taking on more high risk patients.

However the argument as made is that these funds needed expressed permission from congress.  The U.S. Government Accountability Office (U.S. GAO) stated “The making of an appropriation must be expressly stated in law,” the GAO found. “It is not enough for a statute to simply require an agency to make a payment.”

According to the GAO, the congressional appropriation to CMS for fiscal year 2014 did give current CMS administrator Marilyn Tavenner the authority to distribute the funds.  Read more from the Daily Caller.

If insurers aren’t incentivized to sell plans on the marketplaces it could lead to less choices for consumers using the marketplace.

The Truth About Taking Executive Action

The truth is none of the reforms we are discussing were getting through congress in the first place.  It may seem like the President just takes executive action without trying to pass a bill through congress first, but that simply isn’t the case.  The Authority for Mandate Delay Act is one example of a bill that made it to the floor, the issue is that Republicans (primarily in the House) simply refuse to pass any legislation in regards to issue they don’t like such as the Affordable Care Act and immigration reform.  Democrats try to implement reform, Republicans block reform and try to implement repeal.  Democrats take executive action, Republicans sue, and here we are.

The Legality of Executive Action

The executive action taken by the President to delay the employer mandate is really the point of the lawsuit.  Some claim that making minor changes in implementation is well within the authority of the President, others claim that he is outstepping his bounds.  Both sides have valid points and the lawsuit will determine what the courts think about it.