There’s little common ground on presidential lawsuit

Nevada’s congressional delegation was divided late last month when the House voted 225-201 to sue President Barack Obama for allegedly violating his constitutional duties by delaying a key provision of the Affordable Care Act.

This week, back in the district for the August recess, two Nevada congressmen on either side of that vote explained their positions in interviews with the Review-Journal’s editorial board.

Rep. Joe Heck, a Republican, said he voted in favor of the lawsuit because of separation of powers: The Affordable Care Act said businesses must offer health care to their employees by a date certain, and Obama simply didn’t have the authority to waive that deadline. (And yes, Heck acknowledged the irony: He and the Republican caucus support delaying the mandate, which they believe will be harmful to business.)

“This isn’t an issue of Republican, Democrat, Barack Obama, future president, past president,” Heck said. “This is an issue of at what point does a president exceed his or her authority as granted to them under Article II of the Constitution. For me, that’s what it’s about.”

Heck added: “When you have the chief executive unilaterally changing law, that I do believe usurps the congressional authority as the sole body responsible for promulgating legislation.”

He said his party wanted to find the most egregious, most easily explained example of Obama allegedly exceeding his constitutional warrant. (A further irony: Republicans were not heard to object when former President George W. Bush used his executive authority to delay parts of his Medicare Part D program after its own rocky rollout.)

But the House may have a tough hill to climb, legally speaking. Courts could decide to stay out of the debate entirely by saying it’s a political question to be settled by the legislative and executive branches. Or, they could rule the House can’t demonstrate an injury or an adequate remedy required to establish standing.

Heck soundly rejected the idea of impeaching the president, another option discussed by Republicans. “I support the concept of moving forward with the lawsuit,” he said, adding, “But I think we have to take a stand that says, you can’t just go around unilaterally, change laws, especially laws that you signed.”

For Democratic Rep. Steven Horsford, however, the issue is severely overblown, and Obama has the flexibility to decide how to best fulfill his constitutional responsibility to “…see that the laws are faithfully executed.”

“On this issue specifically, the president is administering the law as required under the Constitution,” Horsford said. “He is not failing to enforce a provision, he is delaying the employer mandate provision, which is within his authority as the president. And every constitutional person who’s looked at this that I’ve read about agrees that the president is working within his authority.”

While it’s true that many scholars believe Obama has the flexibility to delay the mandate, it’s certainly not unanimous. George Washington University law professor Jonathan Turley, for example, has testified that Obama is in the wrong, and that the House does have the ability to sue him as a result.

“Many have embraced the notion that all’s fair in love and politics,” Turley said in a written statement to the House Judiciary Committee in February. “However, as I have often said too many times before Congress, in our system it is often more important how we do something than what we do. Priorities and policies (and presidents) change. What cannot change is the system upon which we all depend for our rights and representation.”

Turley added: “To be clear, I do not view President Obama as a dictator, but I do view him as a danger in his aggregation of executive power. It is not his motives but his means that I question.”

Obama has been rebuked by the Supreme Court before: Justices ruled unanimously in June that several recess appointments to the National Labor Relations Board were unconstitutional, because the Senate wasn’t in recess when he made them.

But it’s vastly less clear that the employer mandate delay constitutes a similar violation. It’s even less clear that the Republican goal — a precedential decision about the limits of executive power — will issue from the lawsuit. About the only thing Heck and Horsford seem to agree upon when it comes to this issue is that courts will ultimately resolve it, one way or the other.

Steve Sebelius is a Review-Journal political columnist who blogs at SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.