ACA Ruling Could Kill Boehner’s Suit Against President

ACA Ruling Could Kill Boehner’s Suit Against President

WASHINGTON, D.C. (July 22, 2014): This morning’s ruling by a federal appeals court – that individuals cannot use ACA subsidies for health insurance on federally-run exchanges – may undercut arguments by House Speaker John Boehner that the U.S. House of Representatives would have legal standing to sue the president over his decision to delay the ACA employer mandate, suggests a law professor who has been able to obtain standing in many situations in which most other scholars said it was impossible.

ACA subsidies ruling

In today’s subsidies ruling, the court held that one private individual had standing because he “does not wish to purchase health insurance and that, but for federal credits, he would be exempt from the individual mandate.”  If subsidies were not available, he would not have to buy health insurance, or pay a penalty for refusing to do so. So, even though his “injury” results, as the court itself notes, from his purely ideological opposition to “government handouts,” his own self-caused potential liability for a penalty is enough to give him legal standing.

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But, in hearings on Boehner’s suit just last Wednesday, at least two witnesses testified that the House would have standing to sue only if no other entity would have standing to bring the same issue before the courts.  However, said public interest law professor John Banzhaf at the time, such entities probably do exist, and their existence therefore would seriously weaken the arguments for the law suit that the only way to get a judicial ruling on this legal issue is to permit suits by one branch of Congress.

President Obama violated the constitution upon delayed ACA employer mandate

The Republicans reportedly plan to argue that President Obama violated the Constitution when he “unilaterally” delayed the so-called “employer mandate” – a requirement under the ACA that businesses with more than 50 workers provide health coverage for their workers. “Surely there is at least one worker employed by a company which had planned to provide the insurance mandated by the ACA, but who will not enjoy the coverage by that date specifically because the company changed its mind when the administration removed its only incentive (the penalties) to provide it by that date,” says Banzhaf.  In such a case, the worker would clearly suffer “an injury in fact” “directly traceable” to the legal action being challenged, and would obviously be within the class of person sought to be protected by the act, argues Banzhaf, reciting the ordinarily requirements for standing repeatedly cited by the U.S. Supreme Court.

In addition, there probably are companies, which committed to providing the coverage mandated by the ACA to their employees by the specified date, who will be at a competitive disadvantage when its direct competitors declined to provide such coverage once the mandate’s penalties are delayed.  Being forced to pay more for its workers’ insurance than its competitors causes it the economic injury which courts have always recognized as the key to standing, says Banzhaf.  And surely there are other entities which can likewise show some injury in fact from the President’s decision, says Banzhaf, who in several remarkable cases was able to get standing despite existing legal requirements.

“Today’s decision – that an individual has standing to challenge decisions made under the ACA, even if his alleged injury is caused by purely ideological concerns – strongly suggests that numerous non-governmental entities like employers and workers would likewise be found in an appropriate case to have legal standing to challenge ACA decisions.  This would severely undermine Boehner’s argument that an extraordinary law suit, by only one branch of Congress, is necessary to challenge presidential decisions under this statute, and therefore that the House should have standing.” suggests Banzhaf.

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418 @profbanzhaf

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