In my January 5, 2014 post (“Hush Rand, Please!!) I accused Senator Rand Paul of grandstanding by bringing a lawsuit against the National Security Agency.
Two days ago, Paul’s grandstanding morphed into a crude attempt to mine email addresses and raise money for his RANDPAC. The Kentucky United States Senator is asking ten million Americans (!!) to lend their names to his case and, of course, to send money.
Putting aside what his saber-rattling, fund-raising scheme says about Senator Paul, the legal fact is that his lawsuit is frivolous in the extreme. And he and/or his Dream Team of lawyers must know it.
Writing on January 8, 2014 in in National Review Online about another current frivolous grandstanding lawsuit—by Wisconsin United States Senator Ron Johnson, challenging Obamacare—Andrew C. McCarthy explains why Johnson’s case, and by analogy Senator Paul’s, are constitutionally improper and impractical (and, I would add, hypocritical).
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Ron Johnson’s Frivolous Obamacare Lawsuit
It is not constitutionally proper or practical for a legislator to sue the president over a public-policy dispute.
By Andrew C. McCarthy
Back in October, Ron Johnson of Wisconsin slammed his fellow Republican senator Ted Cruz of Texas for what he portrayed as Cruz’s flawed strategy of attempting to defund Obamacare. But it soon became painfully apparent that Johnson had no strategy of his own to mount any meaningful opposition to the law. He had no answers, and barely a coherent thought, when grilled on the matter by Mark Levin. Now, as reported Monday in Alec Torres’s post and outlined in the senator’s own Wall Street Journal op-ed, Johnson has decided that filing a lawsuit is the way to go. . . . thereby demonstrating that he still has no serious strategy — other than to engage in the very sort of grandstanding the Republican establishment accused Cruz of.
Johnson says he will file a complaint in Wisconsin federal court. The point, apparently, is to try to have a judge affirm that it is illegal for President Obama to exempt members of Congress and their staffs from the full financial burden of purchasing insurance through an Obamacare “exchange.”
The senator is right when he says the risibly entitled Patient Protection and Affordable Care Act (PPACA) does not permit this — just as it does not permit various other exemptions, waivers, and actions our would-be emperor-in-chief deems himself empowered to order.
The PPACA provides that people who earn salaries above a certain threshold are not eligible for taxpayer subsidies to defray the cost of health insurance purchased on the new exchanges. It also requires members of Congress and their staffs to obtain insurance through the exchanges. Previously, those members and staffers were covered under the Federal Employees Health Benefits Program (FEHBP), under which taxpayers picked up the tab for nearly three-quarters of their premiums. Federal law enabled this cushy arrangement only for the FEHBP; if Congress wanted to similarly subsidize its own exchange-purchased policies, it needed to write a law saying so.
With Obamacare, Congress failed to do that. As John Fund notes, the resulting loss of premium support would amount to an annual pay cut of between $5,000 and $11,000 per annum for members and staffers (depending on whether they had individual or family coverage under FEHBP). That is, congressmen and their staffs would be experiencing the same pain Obamacare is inflicting on everyone else. But facing mutiny — and realizing that if enough Democrats revolt, Obamacare could be massively amended or repealed — President Obama came to the rescue. His White House Office of Management and Budget purported to “interpret” the PPACA to allow the subsidies to continue. In effect, Obama rewrote Obamacare to spare lawmakers and their staffs.
All that said, however, it is no more constitutionally proper or practical for a legislator to sue the president over a public-policy dispute than for the president to violate valid laws. As I’ve observed before (most recently, here), the Framers gave Congress two tools to rein in a lawless chief executive: the power to cut off funding and the impeachment power. These tools are powerful, but they have serious political ramifications, and thus elected officials shy away from using them. But they are the only tools available, and politicians cannot forever evade accountability. After all, not using these powers has ramifications too, such as encouraging rampant presidential lawlessness.
That puts Beltway pols in a bind: They cannot afford to be seen as doing nothing about Washington self-dealing, but they lack the fortitude to take serious constitutional action. So they get creative when it comes to otiose stunts that give the illusion of action: e.g., parliamentary gimmicks that allow them to appear to oppose bad legislation while ensuring that it passes; resolutions that “censure” or hold “in contempt” lawless officials they lack the nerve to impeach; and, on occasion, big-wind, no-rain lawsuits.
The latter species of gamesmanship is not in Congress’s constitutional arsenal precisely because political accountability is the foundation of representative self-government. Public-policy matters — such as, who should be entitled to subsidies in a convoluted central-planning scheme — must be decided by elected officials who answer to the voters, not by politically unaccountable judges. In the absence of some constitutional defect (and there is nothing inherently unconstitutional about the political class’s inveterate practice of insulating itself from the effects of the crummy laws it enacts), the “political question” doctrine requires courts to butt out. The reasons for this are practical as well as legal.
Courts have no power to enforce their rulings. They are completely dependent on the executive branch to see that their writs are obeyed. If a court were foolish enough to entertain Senator Johnson’s lawsuit, what would happen if it ruled in his favor? Presumably (and presumptuously), the court would direct the president to enforce its ruling against . . . the president. Good luck with that. President Obama does not just flout statutes that impede his agenda; he ignores and undermines court decisions, too (see, e.g., here, here, here, here, and here). He’s an equal-opportunity outlaw.
The political-question doctrine ensures that public-policy controversies are settled politically — ultimately at the ballot box. That is as it should be. Unlike the judiciary, Congress has real power to stop the president’s Obamacare malfeasance. Lawmakers need not content themselves with ineffectually declaring subsidies illegal; they can actually cut off the public funding that pays for the subsidies.
Senator Johnson claims that this constitutional response is unavailing because Democratic majority leader Harry Reid won’t allow such legislation to come to the floor. That, however, is a political problem, not a legal one. Reid is using the muscle that Senate rules give the majority. It is up to Republicans to do a competent job of spotlighting the subsidy scandal and forcing Reid’s hand. Johnson and Republicans have innumerable ways of gumming up the legislative works to retaliate for Reid’s obstinacy and put Democrats in the politically dicey position of defending Washington privilege. But legislative losers do not get to use the courthouse to refight their Capitol Hill defeats.
The sad truth is that GOP opposition to the subsidies is not as full-throated as it ought to be because the political class is benefitting from the subsidies. And one ruefully recalls that it was as much Republicans as Democrats who excoriated Cruz when he made a riveting case against the manifold depredations of Obamacare. The GOP has only itself to blame for its political impotence.
But the point is that Johnson and other lawmakers have real power to undermine Obama’s malfeasance. Judges have no such power. If a court orders the president to do something, and the president scoffs at the order, the court has no recourse and looks weak. Judges do not like to look weak. Nor should we want them to. Ordered liberty depends on the perceived legitimacy and finality of judicial rulings. That is why our system reserves those rulings for real disputes in which the judicial writ will actually be dispositive.
The political-question doctrine — like the related prohibition against issuing advisory opinions — relieves courts of the burden of intervening in legislative debates. When our system functions properly, public-policy questions are decided in the political process by elected officials who answer to the voters; the judicial power is reserved for real cases and controversies involving truly aggrieved people.
That limitation on court intervention is called the “standing” doctrine. It holds that there is no justiciable case unless the claimant has suffered a concrete injury resulting in quantifiable damages as the result of some alleged violation of the law. Senator Johnson seems to grasp that he has no case unless he establishes some such harm. At the end of his op-ed, he breezily rationalizes that he has standing because:
The OPM ruling forces me, as a member of Congress, to engage in activity that I believe violates the law. It also potentially alienates members of Congress from their constituents, since those constituents are witnessing members of Congress blatantly giving themselves and their staff special treatment.
This is fatuous. No one is accusing Johnson of violating the law, much less forcing him to violate it. The Obama administration has construed Obamacare to allow the subsidy. The construction may be invalid but no one will be sued or prosecuted by the Obama Justice Department for following it, and Johnson can decline the subsidy if he does not want it. The bit about alienated constituents, moreover, is just the kind of theoretical, speculative, incalculable claim of harm that the standing doctrine precludes from court adjudication.
If Senator Johnson is really worried about his constituents becoming alienated by congressional self-dealing and Obamacare’s lawlessness, he should be joining in, rather than lambasting, legislative efforts to defund the PPACA. He and his fellow Republicans should also be using their considerable privileges under Senate rules to block appointments and legislation until Senator Reid relents on his refusal to allow a vote on amendments to end the special subsidies for Congress — to say nothing of ending President Obama’s other lawlessness in the implementation of Obamacare. Republicans should be teeing the subsidy scandal up as a powerful 2014 campaign issue.
Those are proper uses of a lawmaker’s legislative power. The same cannot be said for clogging the courts with frivolous lawsuits.
— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.