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Conyers: Boehner Lawsuit Against President Obama Is Pure Political Theatre

Today, Congressman John Conyers Jr., Ranking Member of the House Judiciary Committee, opposed H. Res. 676, a resolution that would authorize the Speaker of the House to file suit against President Obama for “failure to enforce the Affordable Care Act.”

Click HERE to watch Mr. Conyers explaining his opposition to the lawsuit on the House Floor.  Below are his remarks as prepared for delivery:

     I rise in strong opposition to H. Res. 676 – which would authorize the Speaker, on behalf of this House, to file suit against the president for failing to enforce the Affordable Care Act.  I oppose this seriously flawed measure for many reasons, including:

• The fact that it addresses a nonexistent problem;
• It violates constitutional requirements and  fundamental separation-of-powers principles;
• It diverts Congress from focusing on truly critical matters that require prompt legislative responses.

     I ask unanimous consent to include in the record a letter signed by several constitutional law scholars outlining the reasons why a lawsuit filed pursuant to H. Res. 676 is likely to fail.  To begin with, H. Res. 676 seeks to solve a nonexistent problem because the president has, in fact, fully met his obligation to faithfully execute the laws.  Allowing flexibility in the implementation of a major new program, even where the statute mandates a specific deadline, is neither unusual nor a constitutional violation.  Indeed, in the case of the Affordable Care Act’s employer mandate, the administration acted pursuant to statutory authorization granted to it by Congress.

     Section 7805(a) of the Internal Revenue Code authorizes the treasury secretary to issue any rules necessary for the enforcement of the Code, including the provisions that enforce the employer mandate.  Exercising discretion in implementing a law is the reality of administering sometimes complex programs and is inherent in the president’s duty to “take care” that he “faithfully” execute laws.  This has been especially true with respect to the Affordable Care Act.  The president’s decision to extend certain compliance dates to help phase-in the Act is not a novel tactic.  Yet, even though not a single court has ever concluded that reasonable delay in implementing a complex law constitutes a violation of the Take Care Clause, the majority insists there is a constitutional crisis.

     In addition, a suit initiated under H. Res. 676 would itself be unconstitutional and would violate separation of powers principles.  This is because such a lawsuit would essentially allow federal courts to second-guess decisions by the Executive Branch in how it chooses to implement a policy. The federal judiciary, under the political question doctrine, avoids answering such questions precisely because a court is not appropriate forum to resolve issues of complex policy.

     Additionally, it is highly unlikely that Congress could satisfy the standing requirements of Article III of the Constitution that must be met in order to enforce the Take Care Clause.  To meet those requirements, a plaintiff – under the Supreme Court’s 1997 decision in Raines v. Byrd – must show, among other things, that it suffered a concrete and particularized injury.  Injury amounting only to an alleged violation of a right to have the Government act in accordance with law – which is what this resolution contemplates – is not judicially cognizable for Article III standing purposes.

     This is in stark contrast to cases where Congress has sought to protect a fundamental power, like its subpoena authority.  In subpoena enforcement cases, courts have found standing for one House of Congress to sue because a specific legislative prerogative was at stake, constituting a sufficiently concrete injury to Congress to confer Article III standing. Article III's standing requirements enforce the Constitution's separation-of-powers principles.  Congress cannot simply legislate away these constitutional standing requirements.

     Finally, H. Res. 676 is obviously just pure political theater that distracts the public from the fact that this Republican-controlled House has failed to address a whole host of critical issues.  These include immigration reform, extending unemployment insurance, enhancing environmental protections, ensuring worker safety, and helping those who are financially struggling.  Coincidentally, H. Res. 676 shares a number with H.R. 676, the “Expanded and Improved Medicare for All Act,” which I introduced in February of 2013.

     H.R. 676 would create a publicly-financed, privately-delivered health care system that would greatly improve and expand the already existing Medicare program.  My legislation would ensure that all Americans have access, guaranteed by law, to the highest quality and most cost effective health care services regardless of their employment, income or health care status. Instead of discussing this and other critical matters, today we continue to waste  precious resources on a patently unconstitutional measure that would authorize a lawsuit destined to fail.

     We owe it to the American people to address real, not imaginary, challenges facing our Nation, including enhancing health care for all Americans.”

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