House Republicans have the will to sue the president over the Patient Protection and Affordable Care Act.
They have the financial resources.
What they don't have is a lawyer.
Politico first reported Wednesday that for the second time in two months, a law firm has dropped out of a potential House GOP lawsuit over the new healthcare law. William A. Burck with Quinn Emanuel Urquhart & Sullivan has stopped working on the lawsuit, Politico reported, citing unnamed sources. His departure follows the earlier exit of the first lawyer hired to handle the case, David Rivkin of BakerHostetler.
Repeated attempts to reach Rivkin, Burck and House Speaker John Boehner's office for comment Friday were unsuccessful.
Kevin Smith, a spokesman for Boehner, released a statement earlier this week saying, “The litigation remains on track, but we are examining the possibility of forgoing outside counsel and handling the litigation directly through the House, rather than through law firms that are susceptible to political pressure from wealthy, Democratic-leaning clients,” according to Politico.
The lawsuit was authorized by a House resolution passed in July. The House GOP has been planning to sue over the administration's delay in implementing the employer mandate of the law, which will require companies with 50 or more employees to provide healthcare coverage.
Though the lawyers and politicians have so far been mum on the vanishing counsel, observers are speculating as to what it all might mean.
Ron Pollack, executive director of Families USA, which supports the ACA, said it's not surprising that the House GOP is having trouble keeping a lawyer.
“This is a specious lawsuit that was (initiated) for political reasons and the law firms undoubtedly recognize that a lawsuit like this will be considered to be frivolous and would be thrown out very quickly,” said Pollack, who is also a former law school dean. “I wouldn't want to be a partner in law firm that handled such a frivolous lawsuit.”
The vanishing lawyers, however, don't necessarily speak to the merits of the case, said Todd Gaziano, a senior fellow in constitutional law with the Pacific Legal Foundation, which has filed its own lawsuit challenging the ACA. He said it's likely the main problem is pressure on the firms.
“When a firm normally commits to take a case, particularly the second time, they've done an actual conflicts check and determined there's no actual conflict, and if they change their mind, it indicates there must be some serious pressure that makes them do that,” Gaziano said.
The first lawyer, Rivkin, pulled out of the case in September because healthcare-related clients pressured the firm to do so, according to Politico.
Tom Miller, a resident fellow at the American Enterprise Institute, a neo-conservative think tank, said he predicts the House will likely turn the matter over to its in-house counsel.
“Sometimes it's very uncomfortable for a major law firm with a number of different clients, some of whom would be not happy with a result of this litigation, to harmonize everybody,” Miller said.
He said the timing of the lost lawyers might also change the situation in other ways. It's possible the litigation might not be as important in a few weeks if the Republicans take the Senate in the upcoming midterm elections, he said. It's possible if that happens, lawmakers might want to try to tackle the healthcare law legislatively rather than in the courts.
Gaziano said the timing of these latest events might even be a silver lining for House Republicans.
“If the suit is filed after the election, it takes away a lot of the sting that this was some sort of election stunt,” Gaziano said.
Follow Lisa Schencker on Twitter: @lschencker
