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Tuesday, December 6, 2016

When House Speaker John Boehner (R-OH) announced his plan to sue President Barack Obama for delaying enforcement of the Affordable Care Act’s employer mandate, the reviews were swift and negative. Legally, the lawsuit seemed destined for failure. Politically, it looked like a dud that could actively backfire on the GOP.

Two months later, things aren’t looking much better for House Republicans’ quest to scramble the balance of power in Washington.

On Tuesday, a federal appeals court tossed out a different lawsuit challenging the Obama administration’s employer mandate delay. The 7th Circuit Court of Appeals in Chicago ruled that the Association of American Physisicans and Surgeons had no right to sue.

Politico’s Jennifer Haberkorn reports:

A unanimous three-judge panel threw out the case only three days after oral argument, a breakneck speed.

The physicians’ group argued that the Obama administration doesn’t have the right to delay the implementation of the employer mandate, particularly without delaying the individual mandate, too. The doctors said they are harmed because when people pay the penalty, they have less income to buy medical care from them.

“The [Supreme] Court has rejected efforts by one person to litigate about the amount of someone else’s taxes (or someone else’s subsidies, which are taxes in reverse),” Judge Frank Easterbrook wrote for the three-judge panel, which also included Judges William Bauer and Richard Posner. All three were nominated to the bench by Republican presidents.

This creates an obvious dilemma for Boehner and the House GOP, who are expected to advance a very similar argument. Making matters worse, their original legal team has jumped ship.

On Friday, The New York Times reported that attorney David B. Rivkin Jr., who had agreed to take the case on behalf of House Republicans, “withdrew from the case under pressure after facing criticism that he had taken on an overly partisan lawsuit.” The report adds that some of Rivkin’s partners feared that the suit would hurt the firm’s credibility, presumably due to its divisive nature and extremely long odds for success.

The new attorney handling the suit, William A. Burck, has recently popped up in the news for helping House Republicans sue Attorney General Eric Holder to turn over documents related to the “Fast and Furious” gun-running scandal, and for defending former Virginia first lady Maureen McDonnell in her corruption trial (neither ended particularly well).

So what is Speaker Boehner to do? He could abandon his plan in the name of fiscal conservatism, and save $350,000 for the taxpayers (and his caucus from a lot of embarrassment). But Republicans still have plenty of fundraising to do before Election Day, so expect them to plow ahead — and to refuse to rest until Obamacare is fully implemented.

AFP Photo/Jim Watson

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