Republicans eye Obama lawsuit, but party leaders are not on board

Republican lawmakers bashed the Obama administration at a House Judiciary Committee hearing Tuesday for opting not to enforce core parts of the Affordable Care Act, such as minimum requirements for individual healthcare plans.

Rep. Trent FranksHarold (Trent) Trent FranksArizona New Members 2019 Cook shifts 8 House races toward Dems Freedom Caucus members see openings in leadership MORE (Ariz.), the chairman of the Judiciary panel’s Constitution and Civil Justice subcommittee, said Congress should sue the administration to spur Obama to enforce the healthcare law as written.


“I think that’s the only choice we have, and that’s not just on ObamaCare, that’s on a host of different things,” Franks told The Hill.

“He simply embodies a breathtaking arrogance that ignores the law he’s sworn to uphold.”

But neither Speaker John BoehnerJohn Andrew BoehnerThe Memo: Lawmakers on edge after Greene's spat with Ocasio-Cortez What's a party caucus chair worth? Biden's relationship with top House Republican is frosty MORE (R-Ohio) nor Senate Republican Leader Mitch McConnellAddison (Mitch) Mitchell McConnellWashington showing signs of normalcy after year of restrictions Former OMB pick Neera Tanden to serve as senior adviser to Biden Lawmakers reach agreement on bipartisan Jan. 6 commission MORE (R-Ky.) has endorsed a potential lawsuit against the administration.

A spokesman for BoehnerJohn Andrew BoehnerThe Memo: Lawmakers on edge after Greene's spat with Ocasio-Cortez What's a party caucus chair worth? Biden's relationship with top House Republican is frosty MORE referred questions about a potential lawsuit to the House Judiciary panel.

A spokesman for McConnell did not respond to a request for comment.

Boehner and McConnell have taken on Obama in the courts. The Speaker took on the administration when it shifted its stance on the Defense of Marriage Act. McConnell filed an amicus brief on Obama’s use of recess appointees.

Republicans on the Judiciary Committee highlighted various laws Tuesday that the administration has declined to enforce, such as immigration law.

Obama announced during the 2012 presidential campaign that he would halt the deportation of law-abiding illegal immigrants who were brought to the country as children.

“Mr. Obama is unilaterally ignoring immigration law in many cases,” Franks said at Tuesday’s hearing.

Rep. Luis Gutiérrez (D-Ill.) defended Obama’s action and noted at the hearing that he had three such immigrants working in his congressional office.

“They’re here. There are 11 million of them. Let’s figure out a way how we legalize their status,” he said

The administration has also eased off of prosecuting the federal prohibition against marijuana in states that have decriminalized the sale and use of the drug.

The administration announced over the summer it would reduce mandatory-minimum sentencing, and in September, Attorney General Eric HolderEric Himpton HolderOne quick asylum fix: How Garland can help domestic violence survivors First redistricting lawsuits filed by Democratic group On The Trail: Census data kicks off the biggest redistricting fight in American history MORE expanded mandatory-minimum sentencing relief.

Rep. Michele BachmannMichele Marie BachmannBoehner says he voted for Trump, didn't push back on election claims because he's retired Boehner: Trump 'stepped all over their loyalty' by lying to followers Boehner finally calls it as he sees it MORE (R-Minn.) said last month she is discussing with several GOP colleagues the possibility of suing Obama over his decision to suspend the Affordable Care Act’s requirements for health insurance plans, which threatened to cause millions of people to lose their policies.

The congresswoman’s office told the MinnPost: “She and some of her colleagues have had discussions about the best recourse to put a stop to his unconstitutional actions.”

However, Sen. Mike LeeMichael (Mike) Shumway LeeOvernight Energy: Colonial Pipeline says it has restored full service | Biden urges people not to panic about gasoline shortages | EPA rescinds Trump-era cost-benefit rule Senate panel advances Biden's deputy Interior pick Hillicon Valley: Global cybersecurity leaders say they feel unprepared for attack | Senate Commerce Committee advances Biden's FTC nominee Lina Khan | Senate panel approves bill that would invest billions in tech MORE (R-Utah), a member of the Senate Judiciary Committee and a former clerk to Supreme Court Justice Samuel Alito while he was on the Third Circuit Court, is skeptical.

He said it would be difficult for Congress to demonstrate that it had legal standing to sue the administration for delaying ObamaCare’s employer mandate or allowing insurance companies to continue offering plans that did not meet the law’s requirements.

“There are a couple problems. The president and those who are advising him are very smart. They’ve made these executive modifications in areas where it may be difficult to find someone who can establish Article III standing,” he said.

“Take the one-year suspension of the employer mandate. Who’s injured by that?” he added. “Because these are one-year suspensions we’re looking at, it can be somewhat difficult to push through a piece of litigation in that one-year period.”

The danger potential GOP litigants face is that it would take far longer than a year to resolve their complaints in court, by which time the one-year suspension of the employer mandate or the health plan requirements would be moot.

Sen. Ted CruzRafael (Ted) Edward CruzFormer OMB pick Neera Tanden to serve as senior adviser to Biden Seth Rogen says he's not in a feud with 'fascist' Ted Cruz, whose 'words caused people to die' GOP votes to replace Cheney with Stefanik after backing from Trump MORE (R-Texas), another member of the Senate Judiciary Committee and a former clerk to former Supreme Court Chief Justice William Rehnquist hasn’t endorsed the legal option, either. He says it’s premature to discuss his next round of tactics for dismantling ObamaCare.

But Rep. Darrell Issa (R-Calif.) on Tuesday countered that Congress would have little recourse to curb Obama’s power if it could not use the courts.

“If we cannot go and get the court to decide the differences between the two branches then … the imperial presidency is complete,” he said.

Republicans on the Judiciary Committee warned Tuesday that Obama had dramatically expanded the powers of the presidency and eclipsed Congress’s authority.

Franks at Tuesday’s hearing pointed to other actions taken by the administration not based explicitly on laws passed by Congress.

He cited taxation of political contributions, political speech disclosures for federal contractors and the deep-water drilling ban.