Though the Republicans’ lawsuit against President Obama hasn’t received much attention lately, a decision by the 7th Circuit Court of Appeals to throw out a similar suit has put the case back on the map.
Both lawsuits challenge the administration’s decision last summer to delay for one year the Affordable Care Act’s employer mandate—which requires medium and large firms to provide coverage to their full time employees or pay a steep penalty.
On Monday, the 7th Circuit Court of Appeals threw out a suit filed by the Association of American Physicians and Surgeons in 2011, saying the plaintiffs did not have standing to sue. "The Supreme Court does not think that the Constitution's structural features are open to litigation by persons who do not suffer particularized injuries," Judge Frank H. Easterbrook wrote on behalf of the Circuit panel.
For its parts, the group of doctors argued that the employer mandate could negatively impact their business because when people pay the penalty, they have less income to buy medical care from them. That argument, however, did not fly.
The suit is similar to that authorized by House Republicans in July to sue the president over the same delay. Of course, the GOP’s argument differs from the doctors’. They say Obama’s use of executive authority to bypass Congress “threatens the separation of powers.”
“There’s going to be a standing problem…for sure,” said Mark Rust, managing partner at Barnes & Thornburg LLP in Chicago. It’s not clear how the House was injured by the delay…and that will still need to be made clear.
The House hasn’t filed the lawsuit yet, and the case has suffered some recent setbacks. Last Friday, House lawmakers got new lawyers after the previous attorney pulled out citing political pressure from other clients over the nature of the suit, Politico reported.
Rust said that the 7th Court Circuit threw out this case because of no standing “doesn’t necessarily weaken the Republicans’ case, because each case is decided on merit…. Still, it reinforces the fact that courts take standing issue very seriously.”
Still, it’s unclear what the House Republicans’ standing may be. As noted by Politico, the decision written by the 7th Circuit panel could give others an idea on how to successfully achieve standing and get the suit heard.
The panel wrote that although the doctors were the “wrong party” to file a suit, "someone else would be a much more appropriate champion of the contention that the Internal Revenue Service has not done what it should to accomplish the statute's goal of universal coverage."
That may suggest that a business that had previously not insured its full-time employees could offer a similar suit and have standing.
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