So let's get this straight. John Boehner, the Republican speaker of the House of Representatives, whose party wants to repeal Obamacare, plans to sue President Barack Obama for failing to fully implement Obamacare. The president, who did everything he could to push the measure through Congress, refuses to enforce provisions that he signed into law.
Who declared it Opposite Day in Washington? Next we'll be seeing the tea party demanding higher taxes and Nancy Pelosi joining the National Rifle Association.
There are other rich ironies in this unseemly spectacle. House Republicans actually voted last year to do exactly what they now indict Obama for doing — postponing the employer mandate to provide health insurance. Liberals who rarely lose sleep over burdensome regulation of business insist that employers should be temporarily spared this one.
Boehner himself seems to have suffered a slight failure of nerve. He had earlier leveled a sweeping accusation: "On one matter after another during his presidency, President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce." He went on: "We elected a president. We didn't elect a monarch or king."
But when he announced the details of his suit, it contained only one particular: Obama had delayed the requirement in the law that many employers provide health insurance coverage to their workers. This is the stuff of monarchs? Kaiser Wilhelm would not be impressed.
Nor are the courts likely to be. As The Wall Street Journal reported, "The good news for the House GOP is that courts have never said a congressional chamber may not sue the president for usurping legislative powers. The bad news is that courts have never agreed to take up such a case either."
Why not? One reason is that courts generally allow suits only by people who can show they've been harmed by an alleged wrong, and coming up with a tangible injury to members of the House won't be easy to do.
Another is that if Congress thinks the president is running amok, it has plenty of ways to rein him in. It can pass legislation overruling him. It can withhold funding for this or other presidential priorities. It can even impeach and remove him from office — an option Boehner has rejected.
Judges generally regard disputes between the executive and legislative branches as something for them to work out without assistance from the bench. That's an entirely sensible approach. If the courts were to step in every time the White House thinks Congress is out of line, or vice versa, the elected officials would spend all their time suing instead of negotiating. That is not how American democracy is supposed to work.
The claim that Obama failed in his constitutional duty to "take care that the laws be faithfully executed," we should note, is not absurd. His health insurance reform required businesses with more than 50 full-time employees to provide them with coverage starting this year. But because of the administration's many troubles in rolling out Obamacare, and complaints from businesses, he decided, not once but twice, to delay enforcing the requirement. It's not clear he may do that.
"While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so," writes Stanford University law professor Michael McConnell, a former federal appeals court judge. Except for Richard Nixon, he says, "no prior president has claimed the power to negate a law that is concededly constitutional." Many legal scholars differ, treating the presidential waiver as a routine adjustment to facilitate the overall implementation of the program.
Even if the courts were to accept this case, the ultimate resolution wouldn't come for a long time — maybe not until Obama is on his way out. It makes no sense to go to court to enforce an Obamacare provision that any Republican, if elected president in 2016, would quickly move to repeal.
A better idea would be for the House GOP to go Obama one better and pass a bill repealing the employer mandate altogether. A study by the Robert Wood Johnson Foundation concluded that this change "will not reduce insurance coverage significantly" but will "remove labor market distortions that have troubled employer groups and which would harm some workers." They might find some Democrats in agreement.
Boehner and his fellow Republicans in Congress can ride herd on the administration through oversight hearings, legislation and control of the purse strings. Instead of running to the courts over Obama's use of his powers, they should make use of their own.