Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

When Obama Rewrites Obamacare, Why Doesn't Anyone Sue Him? Senator Mike Lee explains.
The Weekly Standard ^ | February 11, 2014 | John McCormack

Posted on 02/12/2014 7:36:18 PM PST by 2ndDivisionVet

President Obama has repeatedly suspended parts of the Affordable Care Act without the consent of Congress. The latest unilateral action happened Monday night, when the administration announced another delay of the employer mandate, the law's provision that businesses with more than 50 employees must provide their employees with insurance starting in 2014 or pay large fines. In July, the president decreed the mandate wouldn't be enforced at all in 2014, and last night administration officials declared that businesses with 50 to 99 employees wouldn't be penalized in 2015.

Republicans have denounced such actions as "lawless." But if what the president has done is illegal, then why haven't Republicans, or anyone else, taken him to court to stop him? According to Senator Mike Lee of Utah, a conservative Republican with impeccable legal credentials, the main problem is finding someone who would have the standing to sue the president over his unilateral changes to the law.

In order to establish standing, Lee told THE WEEKLY STANDARD in a phone interview, "You've got to show three things: you've got to show that the plaintiff has suffered an injury in fact--a concrete, particularized harm that's fairly traceable to the conduct of the defendent, and it is capable of being redressed or remedied by the court."

"It's not immediately apparent to me who it is that would have standing to show that they would be injured by this," Lee said. "The people directly affected by the employer mandate are employers. But I would imagine that the administration would argue, if sued on this by an employer..., 'You can't show you've been injured by this. We're letting you off the hook.'"

Many of the president's other changes to the law--such as allowing insurers to sell plans outlawed by Obamacare and delaying the individual mandate for those who had their insurance plans canceled--have similarly relieved burdens.

But why couldn't U.S. taxpayers, who will be stuck paying for these executive actions, sue the president? "The general public, the taxpayers, are hurt in that this makes that much more unstable and that much more unaffordable a program that was already unstable and unaffordable. But there is a longstanding jurisprudential rule that one cannot establish standing merely by virtue of one's status as a taxpayer, absent certain rare circumstances," Lee said.

So when no one has standing to sue the president, is there anything Congress can do to stop his unconstitutional actions? "I think the most effective, efficient way of doing it, the way that sort of maximizes the deterrent effect without significantly disrupting government in general is for Congress to use its spending power in such way that withholds funds in areas in which the president has overreached," Lee said. "There were many who suggested that we do precisely that, for example, with the illegal recess appointments by withholding funding for the Consumer Financial Protection Bureau--you know, when Richard Corday was illegally recess appointed. But alas, the CFPB is funded through the Federal Reserve, which is a private, for-profit corporation and isn't funded by Congress, so that was outside of Congress's purview."

"In other circumstances, Congress has just declined to exercise that option of withholding funding," Lee continued. "But it is what Congress is supposed to do. The Founding Fathers contemplated that. James Madison discussed it in Fedralist 57. And it's perhaps the most effective, least intrusive tool for Congress to respond to executive overreach."

Of course, the problem with Obamacare, as we learned during the 2013 government shutdown, is that the law is funded even if Congress fails to pass a new spending bill. Congressional Republicans may not have the power to stop the president from rewriting parts of Obamacare. But with a little more than two years until another presidential election, they may take comfort in the precedent that if a Democratic president has the authority to suspend significant parts of Obamacare, so would a Republican president.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Government
KEYWORDS: employermandare; mikelee; obama; obamacare; obamacaremandate; obamaobamacare
Navigation: use the links below to view more comments.
first 1-5051-54 next last

1 posted on 02/12/2014 7:36:18 PM PST by 2ndDivisionVet
[ Post Reply | Private Reply | View Replies]

To: 2ndDivisionVet

Needs a Writ of Mandamus in there somewhere.


2 posted on 02/12/2014 7:38:10 PM PST by Mike Darancette (Do The Math)
[ Post Reply | Private Reply | To 1 | View Replies]

To: 2ndDivisionVet

How about articles of impeachment you twit.


3 posted on 02/12/2014 7:49:27 PM PST by driftdiver (I could eat it raw, but why do that when I have a fire.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: driftdiver
This is consumer fraud and by extension voter fraud! Impeach his fraudulent arse!
4 posted on 02/12/2014 7:52:37 PM PST by blaveda
[ Post Reply | Private Reply | To 3 | View Replies]

To: 2ndDivisionVet

The leadership of the cave party, formally the republican party, do not have the ba**s.

I know of four little 1st grade girls who do have more ba**s than them who will do a better job.


5 posted on 02/12/2014 7:53:06 PM PST by chiefqc
[ Post Reply | Private Reply | To 1 | View Replies]

To: 2ndDivisionVet

Actually, this doesn’t seem all that complex to me. There are many employees of these small businesses who now will not have health insurance from their employer as promised by the law, because Obama has let their employer off the hook in terms of meeting the mandate’s requirements for another year. There will certainly be a large subset of those affected employees who can show that their personal health care expenditures would be far lower under a plan provided by their employer (as required by the law) than under an exchange plan that they pay for out of their own pocket, even with subsidies. Every one of those employees has standing to sue.

In other words, in helping businesses to avoid the employer mandate, Obama is hurting the workers who the mandate was supposed to help.


6 posted on 02/12/2014 7:54:38 PM PST by RightFighter (It was all for nothing.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: driftdiver

A stab to the heart of the matter: Bravo!


7 posted on 02/12/2014 7:55:02 PM PST by Psiman (PS I am not a crackpot)
[ Post Reply | Private Reply | To 3 | View Replies]

To: blaveda

>> This is consumer fraud ...

And it was forced on the Country and abruptly reeked havoc on many financially and health-wise.


8 posted on 02/12/2014 7:56:40 PM PST by Gene Eric (Don't be a statist!)
[ Post Reply | Private Reply | To 4 | View Replies]

To: driftdiver; blaveda

Impeached? He could behead a troop of girl scouts on the White House lawn during the Easter Egg roll, butcher them, barbecue them and serve them to all the participants and he still wouldn’t be impeached. And if you criticized him about it, the press would say “it’s a black thing” and accuse you of being a racist tea bagging rethuglican for bringing it up while licking their fingers and asking Michelle what kind of “awesome” spice rub they’re using and beg for more of that “delicious” macaroni & cheese and a refill of their Kool-aid.


9 posted on 02/12/2014 7:57:34 PM PST by 2ndDivisionVet (Jealousy is when you count someone else's blessings instead of your own.)
[ Post Reply | Private Reply | To 3 | View Replies]

To: 2ndDivisionVet

why ? Obama owns the Judges


10 posted on 02/12/2014 7:59:57 PM PST by molson209 (Hillary Clinton)
[ Post Reply | Private Reply | To 1 | View Replies]

To: 2ndDivisionVet
"You've got to show three things: you've got to show that the plaintiff has suffered an injury in fact--a concrete, particularized harm that's fairly traceable to the conduct of the defendent, and it is capable of being redressed or remedied by the court."

Standing is with every taxpayer that will have to bail out this manadate which effecively breaks the economic intent (however flawed) of the law. I think any additional costs to the taxpayer or increase to the deficit should be sufficient standing. the court could provide the remedy it failed to do the first time it looked at the ACA and declare it unenforceable and dishonest.

Constitutionally only the congress has the legal right to modify the law or to repeal it. Which one do you think I support?

11 posted on 02/12/2014 8:00:41 PM PST by Cannoneer ( "..raise a standard to which the wise and honest can repair.." GW)
[ Post Reply | Private Reply | To 1 | View Replies]

To: 2ndDivisionVet

You’re right of course. The gutless bastards.


12 posted on 02/12/2014 8:00:48 PM PST by driftdiver (I could eat it raw, but why do that when I have a fire.)
[ Post Reply | Private Reply | To 9 | View Replies]

To: 2ndDivisionVet

Correct me if I’m wrong, but Mike Lee has essentially just said that a lawless president (and I use that term loosely) can be as lawless as he wants, because nobody has “standing” to stop him.

We already know nobody had the b-—s to stop him, but “standing”? Seriously?


13 posted on 02/12/2014 8:01:36 PM PST by workerbee (The President of the United States is DOMESTIC ENEMY #1!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: 2ndDivisionVet

The US Constitution provides the remedy. Unfortunately there is no way the Senate would remove him from office with RATs in the majority. I also suppose there is now way the House would impeach him, given the majority of the majority lacks the testicular fortitude to do so.


14 posted on 02/12/2014 8:02:08 PM PST by ConservativeInPA (We need to fundamentally transform RATs lives for their lies.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: 2ndDivisionVet; Jim Robinson; All

BULL!

Just have the House Sergeant of Arms hand deliver a House Subpoena to B. Hussein Obama to appear before the full House to answer questions about his apparent Dereliction of Duty as Commander in Chief before, during and after the 2012 Benghazi Murders.

If B. Hussein Obama does not appear within the 24 hour time limit specified in the House Subpoena, then the Speaker of the House shall appoint a House Special Counsel with binding Subpoena powers to investigate the following scandals:
*Benghazi:
*NSA,
*IRS,
*and rewriting Federal Law by Obama, Holder, and others to be named later.


15 posted on 02/12/2014 8:02:17 PM PST by Graewoulf (Democrats' Obamacare Socialist Health Insur. Tax violates U.S. Constitution AND Anti-Trust Law.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: RightFighter

Very good paint. The employees who by law are supposed to have employer-provided coverage should have legal standing to sue.


16 posted on 02/12/2014 8:02:23 PM PST by LowTaxesEqualsProsperity
[ Post Reply | Private Reply | To 6 | View Replies]

To: Cannoneer

No, see my comment above. The people who have standing are the employees of small businesses who are not receiving employer-provided health coverage because their employer has been excused from their responsibilities under the mandate. The courts do not give standing to someone who cannot show that they have already been harmed by an action, so it wouldn’t be sufficient to just go to the court and say “well I’m a taxpayer and we are going to have to bail this out.”


17 posted on 02/12/2014 8:04:22 PM PST by RightFighter (It was all for nothing.)
[ Post Reply | Private Reply | To 11 | View Replies]

To: LowTaxesEqualsProsperity

It is my understanding that Employers may lay off people but not attribute it to the costs of Zerocare? I thought that is what Rush said today but I was busy and listening with half an ear!


18 posted on 02/12/2014 8:07:17 PM PST by acapesket
[ Post Reply | Private Reply | To 16 | View Replies]

To: RightFighter

Wait long enough and the taxpayer will have standing too.


19 posted on 02/12/2014 8:09:56 PM PST by Cannoneer ( "..raise a standard to which the wise and honest can repair.." GW)
[ Post Reply | Private Reply | To 17 | View Replies]

To: 2ndDivisionVet

Courts are always absolutely sure that no one has standing.

They never, ever, however, explain who DOES have standing.

Har har, it’s a secret, yuck yuck yuck.

It’s called FU, America.


20 posted on 02/12/2014 8:12:12 PM PST by Talisker (One who commands, must obey.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: RightFighter

Incidentally, I’m not sure whether the courts would allow one of those affected employees to sue the president directly. I think it might be possible that the courts would require the lawsuit by the employee to be directed towards their employer. So, the employee would be suing the employer to demand that the employer abide by the requirements of the employer mandate. So, the employer’s response would be “we don’t have to abide by the mandate until 2016 because the president has given us a pass.”

This would then allow the court to declare that the business was indeed subject to the mandate, effectively nullifying President Obama’s failure to enforce the law.

I’m not sure that the courts would require that, as they may allow a lawsuit directly against the president, but I suspect that there would have to be some kind of a tweak to the lawsuit in order to make sure that they were suing the correct entity.


21 posted on 02/12/2014 8:12:32 PM PST by RightFighter (It was all for nothing.)
[ Post Reply | Private Reply | To 17 | View Replies]

To: 2ndDivisionVet

This “standing” bs never came up until obastard.

What about the individuals that have been forced into the obastardcare at higher costs and lesser benefit. Are they not discriminated against and have they not lost a competitive advantage if they are tradesmen or professionals competing with companies who provide same or similar services and who are exempted from this BS?


22 posted on 02/12/2014 8:14:11 PM PST by Sequoyah101
[ Post Reply | Private Reply | To 1 | View Replies]

To: chiefqc

They don’t have the votes.


23 posted on 02/12/2014 8:15:31 PM PST by mylife (Ted Cruz understands the law and does not fear the unlawful.)
[ Post Reply | Private Reply | To 5 | View Replies]

To: 2ndDivisionVet

Amen.
Sad but it’s true.
He is protected.


24 posted on 02/12/2014 8:16:50 PM PST by mylife (Ted Cruz understands the law and does not fear the unlawful.)
[ Post Reply | Private Reply | To 9 | View Replies]

To: Talisker
Probably the only thing that will correct all of this is a popular uprising. I wonder, skeptically, if there are enough of us create the movement that will purge DC of the politicians and elect real statesmen. Dr Ben Carson is right "...if you believe that the same thing can't happen again." i.e. NAZI like erosion of rights to some degree. I think the process has already begun.
25 posted on 02/12/2014 8:17:56 PM PST by Cannoneer ( "..raise a standard to which the wise and honest can repair.." GW)
[ Post Reply | Private Reply | To 20 | View Replies]

To: 2ndDivisionVet

Fraud in the inducement by the millions, is damages.

Not to mention the constitutional violation of separation of powers.


26 posted on 02/12/2014 8:19:19 PM PST by cicero2k
[ Post Reply | Private Reply | To 1 | View Replies]

To: 2ndDivisionVet
""I think the most effective, efficient way of doing it, the way that sort of maximizes the deterrent effect without significantly disrupting government in general is for Congress to use its spending power in such way that withholds funds in areas in which the president has overreached," Lee said."

Boner and McConnell roll over and disagree.

27 posted on 02/12/2014 8:22:31 PM PST by Paladin2
[ Post Reply | Private Reply | To 1 | View Replies]

To: ConservativeInPA
The Republican pickle is that they cannot act to make Obambi comply with the law because they didn't vote for it and it would implement requirements that they don't particularly support in the first place.

Best bet is to not stand in the way of the man's train wreck. It's coming and it will be colossal.

28 posted on 02/12/2014 8:25:18 PM PST by Cannoneer ( "..raise a standard to which the wise and honest can repair.." GW)
[ Post Reply | Private Reply | To 14 | View Replies]

To: Cannoneer

In the mean time let us hope he does not burn the entire country down.


29 posted on 02/12/2014 8:27:17 PM PST by mylife (Ted Cruz understands the law and does not fear the unlawful.)
[ Post Reply | Private Reply | To 28 | View Replies]

To: 2ndDivisionVet

At this point they could prolly get away with invoking the 25th ammendment and removing his azz for incompetence. Unfit for office.


30 posted on 02/12/2014 8:28:30 PM PST by Georgia Girl 2 (The only purpose of a pistol is to fight your way back to the rifle you should never have dropped.)
[ Post Reply | Private Reply | To 9 | View Replies]

To: mylife

I worry more about the dependent class that will not be able to handle the crush that will come if it goes south. I think most of us are prepared and capable of helping ourselves each other through troubled times. They will find out that they well get more help from their fellow countrymen than they will from their government. It could get ugly though.


31 posted on 02/12/2014 8:31:35 PM PST by Cannoneer ( "..raise a standard to which the wise and honest can repair.." GW)
[ Post Reply | Private Reply | To 29 | View Replies]

To: molson209
. . . owns the judges . . "

Judges and I'm starting to think the republican congress. No one knows the extent of Obama's NSA data mining operations against the "opposition" as well as anyone else who might complain. There's a lot of anecdotal evidence out there and it sure feels like blackmail. Can't wait to read the books after he's retired back to "Hawaii" or wherever it is that he came from.

32 posted on 02/12/2014 8:32:33 PM PST by atc23 (The Confederacy was the single greatest conservative resistance to federal authority ever.)
[ Post Reply | Private Reply | To 10 | View Replies]

To: 2ndDivisionVet

Impeachment is an alternative.


33 posted on 02/12/2014 8:39:04 PM PST by kabar
[ Post Reply | Private Reply | To 1 | View Replies]

To: ConservativeInPA

It matters not whether the Senate convicts him or not. The Reps should do their constitutional duty and let the chips fall where they may. Forget the political fallout and do what is right.


34 posted on 02/12/2014 8:42:12 PM PST by kabar
[ Post Reply | Private Reply | To 14 | View Replies]

To: 2ndDivisionVet

Why do we care who has standing according to someone who doesn’t follow the LAW?

We need civil disobedience—the pResident doesn’t follow any law...why should WE the PEOPLE? Screw Barry.


35 posted on 02/12/2014 8:49:35 PM PST by Mortrey (Impeach President Soros)
[ Post Reply | Private Reply | To 1 | View Replies]

To: 2ndDivisionVet

It seems to me that you could sue any insurance company that sells you an old policy or a version of an old policy since, regardless of what 0napoleon says, it wouldn’t be legal under the law. If someone would do that it would shut down his whole delay scam.


36 posted on 02/12/2014 9:03:56 PM PST by TigersEye (Stupid is a Progressive disease.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: mylife

Sad p;art is if they have the house and senate they do not have the ba** s to do anything, at least with the present leadership, but waiting on the sidelines are those 1st grade little girls with the ba** to do what they will not do.


37 posted on 02/12/2014 9:23:05 PM PST by chiefqc
[ Post Reply | Private Reply | To 23 | View Replies]

To: 2ndDivisionVet

In the near future the legality of these deferrals will be challenged, but not by suing the President. Instead, the suit will against the employer who illegally failed to comply with ACA.

Eventually some uninsured employee of a firm with 50-99 employees will get in a car crash and run up a $1 million bill in ER. It’s bound to happen. He won’t be able to pay up, and either he, or the hospital, will sue his employer for failing to have mandated insurance.

Whether a Presidential decree has legal authority to override the law will be determined in this manner.


38 posted on 02/12/2014 9:24:07 PM PST by RBroadfoot
[ Post Reply | Private Reply | To 1 | View Replies]

To: 2ndDivisionVet
" the Federal Reserve, which is a private, for-profit corporation".

But...but...oh...:-(

39 posted on 02/12/2014 9:26:01 PM PST by Eagles6 (Valley Forge Redux)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Talisker

Technically, I think it’s the FYTW clause of the Constitution. Since it was written in invisible ink, most people don’t know about it.


40 posted on 02/12/2014 9:28:38 PM PST by RBroadfoot
[ Post Reply | Private Reply | To 20 | View Replies]

To: chiefqc

Since when do we have the Senate?


41 posted on 02/12/2014 9:32:16 PM PST by mylife (Ted Cruz understands the law and does not fear the unlawful.)
[ Post Reply | Private Reply | To 37 | View Replies]

To: chiefqc

My mistake.
I missed the “if”.


42 posted on 02/12/2014 9:33:07 PM PST by mylife (Ted Cruz understands the law and does not fear the unlawful.)
[ Post Reply | Private Reply | To 37 | View Replies]

To: 2ndDivisionVet
The Republican majority House could and should impeach him. It's irrelevant whether the Senate convicts.

Now if the Republicans win a majority in the Senate, keep the House and still do not impeach, well then the GOP is finished.

43 posted on 02/12/2014 9:40:50 PM PST by Eagles6 (Valley Forge Redux)
[ Post Reply | Private Reply | To 9 | View Replies]

To: FReepers; Patriots; FRiends

"Obamacare - Repeatedly "fundamentally transformed" via King Obama's - unilateral pen."





Free Republic is Your Voice and Your Forum!
We Really Need and Appreciate Your Loyal Support!
PLEASE Make Your Donation Tonight, Monthly, if You POSSIBLY & RELIABLY can!

44 posted on 02/12/2014 10:15:37 PM PST by onyx (Please Support Free Republic - Donate Monthly! If you want on Sarah Palin's Ping List, Let Me know!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: 2ndDivisionVet

“”I think the most effective, efficient way of doing it, the way that sort of maximizes the deterrent effect without significantly disrupting government in general is for Congress to use its spending power in such way that withholds funds in areas in which the president has overreached,” Lee said”

Oh, I see-—like stopping the federal deficit budget from being raised—like the way ya’ll did that?


45 posted on 02/12/2014 10:32:42 PM PST by freeangel ( (free speech is only good until someone else doesn't like it)
[ Post Reply | Private Reply | To 1 | View Replies]

To: driftdiver

Being a resident of Rush’s Realville, I must wonder how do we get impeachment through the dingyharry Senate?

Now if we can get a significant Congressional majority in November, the whole world changes.


46 posted on 02/12/2014 10:42:27 PM PST by X-spurt (CRUZ missile - armed and ready.)
[ Post Reply | Private Reply | To 3 | View Replies]

To: 2ndDivisionVet

funny...but sad and true.


47 posted on 02/12/2014 11:05:52 PM PST by killermosquito (Buffalo, Detroit (and eventually France) is what you get when liberalism runs its course.)
[ Post Reply | Private Reply | To 9 | View Replies]

To: 2ndDivisionVet

I would think that a possible legal case could have to do with the favored groups exempted from the law, and those who have not been exempted could sue under equal protection.

I realize the Supremes’ ruling that the ACA is a tax makes this more difficult, as the tax code is full of special exemptions, but the exemptions have clear political ends, and thus could conceivably fall under RICO, where standing wouldn’t be an issue.

It seemed to me that the first exemptions issued by the administration exposed the whole law to nullification, under equal protection rights, but I’m not a lawyer, so maybe not.


48 posted on 02/13/2014 3:32:36 AM PST by wayoverontheright
[ Post Reply | Private Reply | To 1 | View Replies]

To: 2ndDivisionVet
A BS way out of following the law... by a treasonous politician yet I repeat myself

Here I will help:

18 usc § 2384 seditious conspiracy...

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

Holder and Obama should be charged with this... and in effect committing treason by overthrowing the government...

Seditious Conspiracy

49 posted on 02/13/2014 3:56:39 AM PST by SERE_DOC ( “The beauty of the Second Amendment is that it will not be needed until they try to take it.” TJ.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: 2ndDivisionVet

“You’ve got to show three things: you’ve got to show that the plaintiff has suffered an injury in fact—a concrete, particularized harm that’s fairly traceable to the conduct of the defendent, and it is capable of being redressed or remedied by the court.”


What about an employee of a company that does not supply insurance and has more than 50 employees? Has that employee not suffered “injury in fact” and is it not traceable to the defendent (government overtly allowed the employee’s boss to not obey the law), and can the court not remedy it (require the defendent to uphold the law)?


50 posted on 02/13/2014 5:05:22 AM PST by cuban leaf
[ Post Reply | Private Reply | To 1 | View Replies]


Navigation: use the links below to view more comments.
first 1-5051-54 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson