Let's see: can't fix the Highway Trust Fund, can't fully fund a veterans health care bill, can't provide child immigrants with basic due process... but with the five-week summer recess just hours away, our Congresswoman Kristi Noem finds time to vote for a coup.
Yesterday, Rep. Noem joined 224 of her Republican colleagues in voting to sue the President of the United States of America. Noem and friends are hoping to find some activist judge who will usurp executive power and hand it to the legislative branch. That's a coup.
The House wants a judge to rescind the President's one-year delay of the large-business insurance mandate and tax penalties under the Affordable Care Act and force the President to immediately implement and enforce those provisions. Of course, Noem and her fellow Republicans have tried to repeal that law fifty times, but she'll make a federal case of the President's exercise of his authority to implement that law more slowly than planned.
And yes, the President has that authority:
In fact, applicable judicial precedent places such timing adjustments well within the Executive Branch's lawful discretion. To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been "unreasonably delayed." But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor a credible end to its dithering. In deciding whether a given agency delay is reasonable, current law tells courts to consider whether expedited action could adversely affect "higher or competing" agency priorities, and whether other interests could be "prejudiced by the delay." Even in cases where an agency outright refuses to enforce a policy in specified types of cases -- not the case here -- the Supreme Court has declined to intervene. As held by former Chief Justice William Rehnquist in a leading case on this subject, Heckler v. Chaney, courts must respect an agency's presumptively superior grasp of "the many variables involved in the proper ordering of its priorities." Chief Justice Rehnquist suggested that courts could lose their deference to Executive Branch judgment if an "agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." The Obama Administration has not and is not about to abdicate its responsibility to implement the statute on whose success his historical legacy will most centrally depend [Simon Lazarus, "Delaying Parts of Obamacare: 'Blatantly Illegal' or Routine Adjustment?" The Atlantic, 2013.07.17].
Question #1 for Kristi at her upcoming debates with Corinna Robinson: "Tell us, Congresswoman, how does suing the President to force implementation of a law that you want repealed and that you say will increase costs for businesses practically benefit South Dakota?"
Question #2: "How much will your lawsuit cost the taxpayers?"
Question #3: "Barack Obama won two Presidential elections and is in the sixth year of his Presidency. Are you willing to acknowledge this fact and move on?"
Voters, feel free to bring these questions up at all of the constituent service events and town halls that I'm sure Rep. Noem will be filling her recess calendar with. But don't take too long to ask: along with frivolous litigation, Noem is busy organizing a pheasant hunt for her big donors September 14–16. Suggested donations: $1,500 for individuals, $2,500 for PACs. (I'd like to see what kind of shotgun a PAC packs.)146 comments