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When Obama Rewrites Obamacare, Why Doesn't Anyone Sue Him?

Senator Mike Lee explains.

7:14 PM, Feb 11, 2014 • By JOHN MCCORMACK
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President Obama has repeatedly suspended parts of the Affordable Care Act without the consent of Congress. The latest unilateral action happened Monday night, when the administration announced another delay of the employer mandate, the law's provision that businesses with more than 50 employees must provide their employees with insurance starting in 2014 or pay large fines. In July, the president decreed the mandate wouldn't be enforced at all in 2014, and last night administration officials declared that businesses with 50 to 99 employees wouldn't be penalized in 2015. 

Obama Running

Republicans have denounced such actions as "lawless." But if what the president has done is illegal, then why haven't Republicans, or anyone else, taken him to court to stop him? According to Senator Mike Lee of Utah, a conservative Republican with impeccable legal credentials, the main problem is finding someone who would have the standing to sue the president over his unilateral changes to the law.

In order to establish standing, Lee told THE WEEKLY STANDARD in a phone interview, "You've got to show three things: you've got to show that the plaintiff has suffered an injury in fact--a concrete, particularized harm that's fairly traceable to the conduct of the defendent, and it is capable of being redressed or remedied by the court."

"It's not immediately apparent to me who it is that would have standing to show that they would be injured by this," Lee said. "The people directly affected by the employer mandate are employers. But I would imagine that the administration would argue, if sued on this by an employer..., 'You can't show you've been injured by this. We're letting you off the hook.'"

Many of the president's other changes to the law--such as allowing insurers to sell plans outlawed by Obamacare and delaying the individual mandate for those who had their insurance plans canceled--have similarly relieved burdens.

But why couldn't U.S. taxpayers, who will be stuck paying for these executive actions, sue the president? "The general public, the taxpayers, are hurt in that this makes that much more unstable and that much more unaffordable a program that was already unstable and unaffordable. But there is a longstanding jurisprudential rule that one cannot establish standing merely by virtue of one's status as a taxpayer, absent certain rare circumstances," Lee said. 

So when no one has standing to sue the president, is there anything Congress can do to stop his unconstitutional actions? "I think the most effective, efficient way of doing it, the way that sort of maximizes the deterrent effect without significantly disrupting government in general is for Congress to use its spending power in such way that withholds funds in areas in which the president has overreached," Lee said. "There were many who suggested that we do precisely that, for example, with the illegal recess appointments by withholding funding for the Consumer Financial Protection Bureau--you know, when Richard Corday was illegally recess appointed. But alas, the CFPB is funded through the Federal Reserve, which is a private, for-profit corporation and isn't funded by Congress, so that was outside of Congress's purview."

"In other circumstances, Congress has just declined to exercise that option of withholding funding," Lee continued. "But it is what Congress is supposed to do. The Founding Fathers contemplated that. James Madison discussed it in Federalist 57. And it's perhaps the most effective, least intrusive tool for Congress to respond to executive overreach." 

Of course, the problem with Obamacare, as we learned during the 2013 government shutdown, is that the law is funded even if Congress fails to pass a new spending bill. Congressional Republicans may not have the power to stop the president from rewriting parts of Obamacare. But with a little more than two years until another presidential election, they may take comfort in the precedent that if a Democratic president has the authority to suspend significant parts of Obamacare, so would a Republican president.

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