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Monday, July 14, 2014

The CapitolUnless you’ve been hiking Mount Kilimanjaro for the last month, you’ve no doubt heard about Speaker Boehner’s proposed lawsuit against the President.  The Speaker, and apparently many House Republicans, are upset that the President has not, in their view, upheld his oath of office by faithfully executing the laws passed by Congress.

A draft resolution released last week shows that the focus of the lawsuit will be none other than the already much-litigated Affordable Care Act.  Regardless of how one feels about the lawsuit or ACA, it’s impossible to ignore the great irony in House Republicans suing the President for not faithfully executing over a law they’ve tried to repeal some 40 times.

It’s easy to see the political reason, though: the Republicans think it’s a bad law and that the President and Congressional Democrats should have to campaign with its perceived flaws being fully realized.  The President’s delays do not allow that to happen, and effectively insulates him and his party from having to face voters angry over the ACA, in the Republicans’ view.

But the real question is this: what if Speaker Boehner wins?  Set aside the merits, for a minute, and consider that possibility.
Take, for example, the “play or pay” employer mandate.  The Speaker wins and now what?  Is the delay no longer effective?  Does that mean that penalties could be assessed against employers in 2014 (and small employers in 2015) even though they thought they had a pass?
And what of the nondiscrimination rules under the ACA that apply to insured plans?  Those have been on hiatus since 2010.  Will there be penalties assessed for those failures now?

While those results are theoretically possible, they seem practically unlikely.  A judge would hopefully recognize that there weren’t solid rules for the administration to implement and for employers to follow.  Such a “gotcha” would unfairly punish a non-party to the lawsuit (employers) and a court would hopefully recognize that.  Additionally, the Speaker is unlikely to ask for those results as a remedy since they would have the opposite effect of currying favor with the people.

Regardless of where or how this goes, it will make for interesting political theatre, but hopefully the fallout, if any, will be minimal to employers still grappling with the ACA.

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