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Rep. Tom Rice (R., S.C.) and constitutional law expert David Rivkin on Wednesday predicted victory in the lawsuit the House is launching against President Barack Obama.
The House Rules Committee held a hearing on the proposed lawsuit, which is intended to prove the unconstitutionality of Obama’s unilateral delay of the employer mandate portion of the Affordable Care Act. Witnesses at the hearing argued about whether the House has standing to sue the president to enforce the law.
“I’m very optimistic that this lawsuit will succeed,” Rivkin said in an interview. “I certainly expect there to be a propaganda offensive to try to stop it, but I don’t see any fundamental legal problems, with regards to standing or the merits.”
Rice said he is “confident we’ll receive settlement of judgment by September,” though Rivkin anticipates a favorable ruling in a D.C. district court by November.
The Rules Committee is set to mark up a resolution next week that seeks the authority to sue the president for actions “inconsistent with his duties under the Constitution of the United States.” Once passed, the resolution would have to be voted on by the full House. A vote is expected by the end of the month, with the lawsuit to follow in late August.
Speaker of the House John Boehner (R., Ohio) announced last week that the lawsuit would focus on the administration’s decision in 2013 to delay the enforcement of the employer mandate under Obamacare, which requires businesses with over 50 full-time workers to provide health insurance or face a fine.
Rice criticized the president’s unilateral actions.
“In a sense he’s rewriting the tax code,” Rice said. “And if a president has that power, then what’s to stop the next president from saying, ‘Well, I don’t like the maximum tax bracket, and therefore I’m not going to enforce it’?”
Rivkin said the lawsuit is necessary to keep intact the “entire separation of powers architecture.”
“Whatever you think about the policy merits of these proposals, they are profoundly disruptive over separation of powers, they debase the constitution, and they need to be stopped,” he said.
Jonathan Turley, a law professor at George Washington University who supports the Affordable Care Act and voted for Obama, agreed.
“Some of President Obama’s statements come strikingly close to assertions by King James I that he could apply ‘natural reason’ to the alteration, and even the suspension, of federal laws,” he said.
Critics of the lawsuit have said the House does not have the proper standing to sue the president.
“There’s just no way a court would find that the House of Representatives as an institution has been harmed by President Obama attempting in good faith to implement the ACA,” Catholic University law professor Victor Williams told Politico.
Rivkin, who has more than two decades of experience in constitutional law, laughed off the notion.
“The people who say that this is the biggest hurdle, are either urged to say so by the administration or they don’t know the law,” he said. “The House of Representatives has repeatedly gained standing in a footprint of a D.C. circuit to enforce legislative subpoenas spanning series of decades.”
Rivkin and Rice said prior lawsuits seeking legislative standing have failed because they did not speak for an entire institution, like the House of Representatives.
“You had small groups of members, and moreover, the things they were challenging were not as clear-cut as the problem of suspending the law that the president is doing now,” Rivkin said of the roughly 45 lawsuits filed in state legislatures and federal court since.
Turley said he believed the lawsuit will face challenges, but it is worth moving forward to return the branches of government to their proper roles.
Rivkin and Rice also criticized the president’s assertion that the lawsuit will “waste taxpayer money,” since the Senate denied to take up a bill authorizing an expedited review of the case, sponsored by Rep. Trey Gowdy (R., S.C.).
“That’s one of 300-odd bills that the House has sent over to the Senate on various matters that they refuse to take up,” Rice said.
“If the administration is so concerned about resources involved in litigation, they should have told Sen. [Harry] Reid [D., Nev.] to pass the expedited review provision,” Rivkin said. “If they think this lawsuit is so likely to fail, why not let it fail quickly?”