Boehner’s Blunderbuss

The Speaker’s authority to sue federal officials is remarkably broad.

The House passed a resolution Wednesday authorizing Speaker Boehner to file suit on its behalf.  A resulting suit is unlikely to succeed for a host of reasons, including the dubious legal standing of the House to bring such a case.  But if it does succeed, this kind of  mechanism could have real benefits at some future time when a Democratic Congress is facing a Republican Administration reluctant to enforce environmental laws.  Indeed, the Resolution is impressively broad and open-ended. The press has portrayed the House resolution as limited to claims that Obama has violated the Constitution by delaying the employer mandate.  But actually the Speaker has much more leeway than that.  He can file repeated law suits on a wide range of subjects, against any official from Obama down to an orderly at a federal hospital, based on statutory violations as well as constitutional ones.

What subjects are covered?  The Resolution authorizes suits involving:

(1) any provision of the Health Care Act, not just the employer mandate — and the statute includes provisions on issues apart from Obamacare such as digitalizing medical records;

(2)  Any provision of Title I or subtitle B of title II of the Health Care and Education Reconciliation Act of 2010.  Title I covers health insurance, Medicare and Medicaid, and subtitle B of title Title II covers several issues, including funding for community mental health centers.

(3) “Any related law.”

Put these together and it appears that any federal program dealing in any way with health care is at least arguably covered.

Who can be sued under this Resolution?  Basically, anyone getting a federal pay check, right down to the person who empties the wastebaskets in HHS.  Coverage includes: “the President, the head of any department or agency, or any other officer or employee of the executive branch.”  

What’s the time span?  The Resolution does not merely authorize a single suit. It authorizes the Speaker to file “one or more civil actions.”  Nor is there any time limit stated in the Resolution to this authority: at least by its terms, this is a permanent augmentation of the Speaker’s powers, though it might need a pro forma renewal at the beginning of each session.

What kinds of legal claims?  Pretty much everything: failure “to act in a manner consistent with that official’s duties under the Constitution and laws of the United States”, “including a failure to implement any such provision.”  So basically, any legal issue that could be raised against a federal employee or agency by anyone at all can also be the subject of a lawsuit by the Speaker, so long as the issue relates to healthcare.

Like the large majority of legal scholars, I don’t expect the courts to entertain these lawsuits.  But turnabout is fair play, and there’s something appealing about using this precedent for a future Speaker Pelosi suing a future President Bush for failing to enforce environmental laws to the hilt. On the other hand, the very breadth of this law may make courts think twice about making inter-branch litigation the new normal.   [Note: thanks to Dean Rowan for tracking down the language of the Resolution for me.]

, ,

Reader Comments

5 Replies to “Boehner’s Blunderbuss”

  1. Whatever one’s view of this lawsuit — and I share the view that standing is a serious hurdle here — I would think there would be near universal concern about the potential implications of the Obama Administration’s approach to implementing the PPACA were it applied to environmental law.

    1. Jonathan–It seems to me almost like BAU in environmental law. Congress is constantly setting deadlines for EPA to implement the statutes which EPA misses by months or years. But maybe I’m missing something different about the ACA implementation.


      1. Dan —

        It’s certainly business as usual for agencies to fall behind in environmental law and to miss statutorily imposed deadlines — and it’s business as usual for the courts to hold them to account and to compel agency action that is unlawfully withheld or unreasonably delayed.

        What’s not BAU in environmental law is for the EPA to prospectively announce that it will miss statutorily mandated deadlines, and set new deadlines of its own devising. Nor is it BAU for the EPA to announce that if it will miss a deadline that statutory obligations imposed on private parties are therefore excused and inoperable. Nor is it BAU in environmental law for the EPA to waive statutory obligations and implementing regulations through a press conference and three page guidance letter to state agencies. Nor is it business as usual to excuse a subset of regulatory agencies without statutory authorizaton. Yet all of these things have been done in PPACA implementation, and I’ve yet to see a serious defense of any of these actions (as opposed to some other measures, such as the OPM rule on leg staff plans or the IRS tax credit rule, where reasonable minds may disagree). Indeed, even those who are inclined to defend the Administration have had a hard time with many of these actions. See, e.g.,


  2. Hi Jonathan. I haven’t followed the merits of the complaints that carefully, since health care finance is a bit outside my bailiwick. I found an interesting defense of the Obama Administration’s practices, citing precedents from earlier Administrations, in the New England Journal of Medicine. In any event, the authorization to sue seems much broader than the issue you’re highlighting. It seems to set the stage for litigation over any regulation or failure to regulate that the Speaker objects to.


    1. Dan —

      I would think you know enough administrative law to evaluate the two sets of arguments and their persuasiveness. The Lazarus/Jost piece you cite would, in effect, undercut judicial efforts to force action under a wide range of environmental statutes, and ensured there was no incentive to enter into settlements, such as those governing species listings. Heckler v. Chaney is not an all-purpose cover for executive discretion (as the Supreme Court properly noted in, among other cases, Mass v. EPA). I don’t think one has to know anything about health care finance. Just statutory interpretation and administrative law.

Comments are closed.

About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

READ more

About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

READ more