Republicans in Congress admit Obama violating Constitution but say they can't fight it
Politically, Republicans are on solid ground when they accuse the president of violating the Constitution with his unilateral changes in Obamacare.
But legally, they don't have a leg to stand on.
Washington Republicans on Sunday restated their argument that President Obama has violated the Constitution by using executive orders to alter the Affordable Care Act but acknowledged they likely have no recourse or ability to stop another incident.
Sen. Mike Lee, R-Utah, told "Fox News Sunday" that congressional Republicans think the president abused the government's separation of powers by using the executive orders to sidestep Congress and delay the law's employer mandate.
However, he said critics would be challenged to win in court because Congress lacks the so-called "legal standing" to present the case and they would have a "tough time" finding somebody hurt enough by the delays to be a good plaintiff.
"The president knows this is wrong," said Lee, among the most outspoken ObamaCare critics. "What gives him the ability to rewrite the law?"
Last week the president, for the second time in about seven months, delayed the employer mandate, which requires medium- and large-sized businesses to offer insurance to employers.
The original Jan. 1, 2014, start for the mandate, which requires businesses with 50 to 99 full-time employees to offer the insurance or face a tax penalty, was delayed in July for one year. On Monday, Obama delayed it until 2016.
Rep. Xavier Becerra, D-Calif., defended the president's actions Sunday, telling "Fox News" that Obama is "making sure laws are written and executed" to help Americans.
He also said that if Obama's actions "were against the Constitution somebody would have sued him by now."
Is this just a cop out? Not at all, and it demonstrates both the strengths and weaknesses of our Constitution.
The reason a plaintiff needs "standing" in order to challenge Obama's actions, or to challenge the constitutionality of any law, is to prevent frivolous and politically motivated attacks by Congress (or private groups with an agenda). It's one of those checks that prevents a minority in congress from usurping the power of the execuitve by preventing them from making an end run around the president to the courts.
Someone in this case who would have standing would be a business - or perhaps an insurance company - who would be adversely affected by the change in deadlines. Rep. Xavier's statement notwithstanding, several legal experts have already weighed in saying that the president's actions are, indeed, unconstitutional. But as Elizabeth Price Foley, a law professor, points out, since the changes actually benefit people, it will be hard to prove injury:
When a president delays or exempts people from a law - so-called benevolent suspensions - who has standing to sue him? Generally, no one. Benevolent suspensions of law don't, by definition, create a sufficiently concrete injury for standing. That's why, when President Obama delayed various provisions of Obamacare - the employer mandate, the annual out-of-pocket caps, the prohibition on the sale of "substandard" policies - his actions cannot be challenged in court.
Republicans have introduced a measure in the House that would allow the legislature to sue the executive to prevent the president from making such changes. And because it authorizes the House to sue the president over the unconstitutionality of his alterations, the bill doesn't have to pass the Senate or be signed by Obama.
But the problem with standing persists and it is doubtful that any suit by the House would be accepted in federal court.
What Obama has done by riding roughshod over the Constitution will come back to haunt us in the future. Anyh president from now on can use the "Obama rule" to change legislation more to his liking or political advantage, making a mockery of the separation of powers and well-ordered government.