The One Big Problem The GOP May Have With Its Lawsuit Against Obama

House Republicans are suing President Barack Obama for unilaterally delaying Obamacare’s employer mandate. At the same time, the GOP has identified repealing the mandate as one of their potential moves if they take control of the Senate next year.

Can those two objectives really co-exist?

The GOP and its supporters believe they can simultaneously move ahead with the lawsuit and repeal. But some outside experts who are supportive of Obamacare said that if Republicans were to repeal the mandate, it could be problematic for their legal action.

It’s easy to see a couple of reasons why an ongoing lawsuit to challenge the Obama administration’s delay of the mandate might complicate any effort to fully repeal it. How can you sue the president for delaying something that you are also working to completely eliminate? The political optics, at least, are a bit muddy.

There is also a legal question, Tim Jost, a health law professor at Washington and Lee University who supports Obamacare, told TPM. Perhaps the toughest part of the case the House will have to make is that it’s been injured by the president’s actions. If they repeal — or move to repeal — the mandate, can they really claim to have standing to challenge its delay?

“I think there are real problems with standing, no matter how this thing goes,” Jost told TPM. “But I think they would have much less of a case if the employer mandate were repealed. It seems to me that there would be no injury at all.”

But that’s not an opinion shared by the GOP or its supporters off the Hill.

“I do not believe the leader’s lawsuit should complicate or impede any congressional action to repeal or address the fundamentally flawed employer mandate provision in the ACA,” Amanda Austin, health policy expert at the National Federation of Independent Businesses, one of the lead plaintiffs in the 2012 U.S. Supreme Court case to overturn Obamacare, told TPM in a statement.

And Republicans on the Hill said that a repeal of the employer mandate could still be on the party’s agenda in 2015 if it controls both chambers of Congress.

“It does not preclude that at all,” one House leadership aide told TPM when asked if the lawsuit would stop any action on the mandate. So repeal could come up for a vote in 2015? “Definitely possible,” the aide said.

The lawsuit is about the process, not the end result, a Senate GOP aide told TPM. That aide also said that repealing the mandate would still be on the table if Republicans assumed control of Congress.

“If the GOP takes the Senate, we will continue to target the mandates — employer and individual — regardless of the lawsuit,” the aide said. “Congress doing it is much different than the administration unilaterally doing it.”

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