The House of Representatives, which did little else of note in 2014, spent a significant amount of time discussing and ultimately passing a measure to allow Speaker John Boehner (R-OH) to file a lawsuit against President Obama over what the GOP characterized as illegal executive overreach. The vote was on a party line. To date, the suit has not been filed. On Monday, though, a new analysis by the Congressional Research Service (CRS) provided at least one reason why Boehner may have been reluctant to go to court.
The suit he proposed to his members focused on one action taken by the Obama administration: the delay of the Affordable Care Act’s requirement that all businesses meeting certain criteria either provide employees with health insurance or pay a fine. The administration announced in 2013 that the so-called “employer mandate” would not be enforced the first year after the ACA took effect.
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Republicans blasted the White House over that decision, claiming the president was in effect rewriting the law unilaterally. (The complaints were somewhat ironic, as the employer mandate is one of the elements of the law most hated by the GOP.)
At least someone on the Republican side of the aisle, however, appears to have had doubts about the suit’s merits, because the CRS, a century-old non-partisan arm of the legislative branch, published “A Primer on the Reviewability of Agency Delay and Enforcement Discretion” on September 4. It was likely a Republican member of Congress; the CRS only works for lawmakers and their committees, and two attorneys who wrote about the report in an article Monday morning contacted congressional Democrats and learned they were unaware of it. Given the findings, it’s difficult to believe a Democrat wouldn’t have immediately publicized the report.
The attorneys are Simon Lazarus and Elisabeth M. Stein, senior counsel and policy counsel, respectively, at the Constitutional Accountability Center, which calls itself “a think tank, law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history.” They published an article about the study on the website of the Washington Monthly on Monday. The study appears to have been first published on the Federation of American Scientists’ Secrecy News Blog.
In its report, the CRS noted there is a long history of federal courts deferring to the judgment of regulatory and law enforcement agencies on exercising “enforcement discretion.” Just as prosecutors are allowed to use their professional judgment when deciding whether or not to bring a case, executive branch agencies have to make similar decisions about when and how to enforce certain regulatory requirements. An agency can delay the enforcement of certain requirements even if they’re legally binding.
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It draws a distinction between agency decisions that impose new obligations on individuals – which must go through a rulemaking process from the Administrative Procedures Act – and the provision of guidance that explains the agency’s plans for enforcing existing rules.
The study assessed the decision by the IRS not to enforce the employer mandate in 2014, a decision announced on July 3, 2013 – more than a year before the House voted to approve Boehner’s proposal to sue the president.
“The IRS promulgated the notice without undergoing notice and comment rulemaking procedures. However, the IRS does not appear to impose a new legal obligation on any parties, but, rather, the IRS seems to notify the public of its intent to not enforce these provisions against employers during 2014,” the study said. “A court would likely find that such a statement is a guidance document, because it merely notifies the public on how the agency plans to perform a discretionary function—enforcement discretion.”
“The important point is that it increasingly looks [like] the widespread outcry about this was just sound and fury signifying absolutely nothing,” said Simon Lazarus, one of the two attorneys who publicized the study.
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“They came back reporting that there are no violations of the APA here,” Lazarus said. “It’s pretty stark when you look at the conclusions.”
Speaker Boehner’s staff did not respond to an emailed request for comment on this story.
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