"One of the difficulties with many of these acts of lawlessness is that they're very cleverly designed to make it difficult to find plaintiffs with standing," Cruz said Wednesday in a speech to the Federalist Society. He thinks the latest employer mandate delay is assailable, though.
The Washington Examiner's Philip Klein noted that the delay "directly contradicts the text of the law," which requires employers with more than 50 employees to provide insurance.
"Under the new rules, in 2015, the penalties will only hit employers who have 100 or more employees," Klein explained in February.
Therein lies the opportunity. "I will confess, the litigator in me the, day I saw that news broke, immediately said, 'aha, they've created standing,' " Cruz said. "Because if you have an employer with 100, 101, 102, 105 employees, under the statute, that employer is supposed to have the burden [of providing insurance], and so is the employer with 95 employees. And the administration has now given his competitor a benefit in the marketplace that is contrary to the text of the law. So, I note that to some of the more creative legal minds. There are other cases that are pending that I hope are successful but that have standing challenges. That struck me as one of the clearest instances where there is a clear, discernible set of of plaintiffs with standing to challenge it, and it ain't a complicated lawsuit."
In general, Republicans may be hesitant to file lawsuits that force Obama to implement the Affordable Care Act's provisions, but Cruz made the suggestion while discussing his new report on 76 actions by the president that he views as abuses of executive authority.
"[A]n imperial presidency threatens the liberty of every citizen," Cruz said in the report. "Because when a president can pick and choose which laws to follow and which to ignore, he is no longer a president."
Speaking about the issue of liking or disliking a given policy created through an abuse of presidential authority, Cruz recalled that "the Scriptures tell us, there came a Pharaoh who knew not Joseph and his sons."