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I'm pretty excited about the GOP lawsuit against the administration because it turns out they are coming into my little world of trial law.  There are rules and case law here that govern how to deal with ridiculous law suits like this one.

They even provide for getting rid of lawsuits before the GOP can ask a single question or demand a single document or hold a single deposition.

Turns out that, unlike State courts, Federal courts have limited jurisdiction.  There must be a certain amount in controversy or have a unique Constitutional question.

So I feel pretty good about this thing going away in a big damn hurry.

Let me introduce you to the Federal Rules of Civil procedure.  Its a set of 86 rules covering several large areas within trial law including starting cases, discovery, trial and post trial.  Its pretty complete and we spend a lot of time on it in law school.

Among these include rule 12 entitled: "Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing"  I want to introduce you to two specific sections 12(b) and 12(c).

My story continues below the fold.

12(b) provides:

"(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19"

12(c) is the mechanism for making it all go bye-bye:

"(c) Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings."

So there you have it.  Very simple really.  Federal courts can hear cases that have unique federal questions or in disputes between people of 2 states with more than $75,000 in controversy.

Given all this there are likely 2 ways to trip up the GOP case by the time the first conference hearing is set:  There is no subject-matter jurisdiction and there will be a failure to state a claim upon which relief can be granted (Rule 12(b)(1) and Rule 12(b)(6).

Given that I really don't have the time to write a Memo of Points and Authorities for the Administrations Motion to Dismiss, let me simply point out a few things:

1. The GOP wants to force the Administration to execute a law faster.  The administration has never said it would not execute the law, just not now.  Not sure, but pretty sure the Executive Branch is in charge of enforcing law, not Congress, so stfu.  What in fact are we talking about here?  

2. The GOP will need to show some sort of damage.  Since they have repeatedly (50 times or so) have tried to repeal ACA, clearly they have not been damaged by a delayed enforcement of a part of the ACA when the don't want any of it all.  No damages.  No case (i.e., they won't be able "to state a claim upon which relief can be granted.")

All this said, I do think there can be any number of counter-claims the Administration can file that could file.  Just spit-balling here but there are any number of torts that can be tossed out there from intentional tort to economic torts.

However, my favorite thing here is that since they are trying to compel him to do something, they are asking for relief under equity.  My favorite maxim in equity law is that you must ask for equity with "clean hands."  As in, have you contributed to the problem?  I'm not sure that the judge will be able to keep a straight face.

Fri Aug 01, 2014 at 9:56 AM PT: Folks, since so many of you have asked or talked about Rule 11 and sanctions, I have penned a follow up diary on the subject.  You can find it at:

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