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July 11, 2014

John Boehner’s Lawsuit Stunt

Yesterday Speaker of the House John Boehner announced that in the coming weeks he will bring before the House a resolution authorizing a lawsuit against the President. The heart of the lawsuit will allege that Obama has failed to live up to his oath by ignoring/rewriting parts of the Affordable Care Act, specifically his unilateral and extralegal delay in enforcing the employer mandate.

This is a ridiculous, meaningless stunt designed to enable the GOP to tell voters they are doing something while not doing anything that will matter.

Messaging problems aside (and if you think the GOP messaging geniuses can sell the double bank-shot argument that they hate the mandate but want it enforced, I have a bridge for sale), consider what Boehner is doing here. Everyone knows the mandate will throw the majority of the insurance market into chaos far worse than what we saw this winter in the individual market. Clearly Boehner doesn’t want that outcome which is pretty strong evidence this is a stunt. If he wins, the employer mandate will instantly go into effect. The Supreme Court doesn’t issue rulings that say, “We rule for the plaintiff but we know he’s really just trying to score some political points. So even though he won, we won’t give him what he asked for.”

Another indication this is a stunt is the timing. Obama announced the employer mandate delay last July so it will be well over a year before the suit is even filed in court. Why the delay? Because if they had filed it last year, Boehner ran the risk of actually getting a verdict in this case.

The way the schedule will shake out, it’s extremely unlikely the Supreme Court (and this case will be appealed there by both parties) will ever rule on the merits of the suit. Why? Because before the courts decide if Obama actually violated the Constitution they will have to first decide if the House of Representatives even has standing (the right to bring the suit) in the first place. This will be litigated at the District, Appeals and Supreme Court levels. It’s almost impossible to imagine that the case will be heard by the Supreme Court any earlier than October of 2016. Obama will leave office 3 months after that and once his term is up, the case will be moot. And even if the Court rules prior to January 20th, 2017, that will just be on the standing issue. If the House is found to have standing the case will be sent back to the district court for trial at which point…it will dismissed as moot since Obama won’t be President any more.

Starting to see why this is a stunt?


Now, political stunts can be useful. They can draw attention to an issue, serve to rally political pressure and do all sorts of other things. But this isn’t a suit designed to do any of these things. It will be a long and technical court battle of standing.
This will not engage the public and arouse any public sentiment against Obama. And it’s not meant to. This particular type of political stunt is designed to kill an issue while simultaneously enabling a politician or politicians to say they are doing something.

Boehner can rally the troops by saying, “we are taking a tough stand against Obama’s overreach by going to court” but it doesn’t cost him anything (Literally. Taxpayers will be on the hook for the legal fees) but he can look tough. Meanwhile no effort will be made to rouse public opinion, the real power against an overreaching President. No, the issue will be tucked away in the hallowed halls of a courthouse, out of sight and out of mind. But something(!) is being done.
Even if all that weren’t true, this is still an awful idea.

For far too long the Congress, under control of both parties, have ceded far too much power to the executive and relied far too much on the courts to clean up their messes.

This legislative cowardice has led to the empowerment of unaccountable bureaucrats to promulgate an unending flow of regulations that too often turn otherwise law abiding citizens into criminals because they don’t keep up with the latest edition of the federal registry. Courts meanwhile are left to fill in the blanks and try to make heads or tails out of vague and sometimes contradictory statutes. Inviting the courts and unelected judges into a fight between the political branches will only weaken what many people say it’s the pre-eminent branch among equals. The founders put it first after all and they expected Congress to act accordingly.

Now the proper reaction to this kind of lawlessness is impeachment. The problem is not that it would be politically harmful to the GOP (It would be but that shouldn’t be a consideration, the country should come first) but rather that it won’t work. The Democratic controlled Senate would never convict.

So what option does the House have? Fortunately James Madison in Federalist 58 has the answer.

The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure. But will not the House of Representatives be as much interested as the Senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the Senate? Or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government.

John Boehner apparently reads that charge from the man generally credited with writing the Constitution and thinks, “Nah bro, sue ‘em!”.

Count me on Madison’s side here.

Of course the weak willed among us will say, “The House can’t shut the government down again!” If you wish to put partisan interests above the welfare of the nation’s constitutional order, be my guest. But there is another option at hand.

I propose today a different approach. Let's do away with the concept of "comprehensive" spending bills. Let's break them up, to encourage scrutiny, and make spending cuts easier. Rather than pairing agencies and departments together, let them come to the House floor individually, to be judged on their own merit. Members shouldn't have to vote for big spending increases at the Labor Department in order to fund Health and Human Services. Members shouldn't have to vote for big increases at the Commerce Department just because they support NASA. Each Department and agency should justify itself each year to the full House and Senate, and be judged on its own.

This plan would enable the House to target certain spending in order to force the executive to heel while funding the rest of the government. Oh and if the Senate doesn’t take up or pass the appropriations bills that’s up to them. The House will have done its work.

Oh, who is the TEA party firebrand who suggested such a rash course of action? A fellow named John Boehner.

Yes, being the Speaker of the House is hard. Yes it involves being strong willed and creative at times. But mostly it entails standing up for the prerogatives of the United States House of Representatives in order to preserve, protect and defend the Constitution of the United States of America. If that’s a bridge too far for John Boehner and House Republicans they should just say so aand save us the bother of their stunt lawsuits.

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posted by DrewM. at 09:53 AM

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