House Republican Caucus: The Gang That Couldn’t Think Straight
Well, Speaker Boehner Sues the President is officially a thing now. The House Rules Committee, the gatekeeper for legislation and resolutions to get to a floor vote, ruled yesterday, along partisan lines, to allow it. Personally, I’m all for it because, lately, the GOP’s flair for far-fetched, stagy political tactics is the “gift that keeps on giving” for Democratic fund-raising.
And House Democrats certainly made the most of the amendment process, yesterday, to press that advantage. Nobody covered that quite as well as Rachel Maddow and David Corn, last night . . .
Sounds like very risky business for a party that wants to retake the Senate in November. Especially given the fact that a majority of Americans think that the Boehner lawsuit is a pretty bad idea:
There’s not a lot of public appetite for a Republican push to sue President Barack Obama, or for calls by some conservatives to impeach him, according to a new national survey.
A CNN/ORC International poll released Friday morning also indicates that a small majority of Americans do not believe that Obama has gone too far in expanding the powers of the presidency.
By a 57%-41% margin, Americans say House Republicans shouldn’t file the suit. As with the question on impeachment, there’s a wide partisan divide over the lawsuit.
On the question: “Should Obama be impeached and removed from office?”—35% say Yes and 65% say No.
And then there’s the business community, a typically Republican-leaning group, who would probably not thank the GOP for removing the president’s “transition relief” and pulling up the date for compliance to a law that they’ve voted to repeal 50 times.
Aside from the public’s dim view, a majority of legal scholars predict that it’s a far outside shot that Boehner’s case will even make it into a courtroom.
As Timothy Egan of The New York Times put it:
So far, legal experts have reacted to Boehner’s potential lawsuit with the rhetorical equivalent of guffawing until their morning coffee runs out their noses.
A recent case, along the same lines, just failed for the same reason that Boehner’s case is expected to: lack of standing.
That case was a similarly lame-brained suit brought by Sen. Ron Johnson (R-WI) who challenged an Obama administration rule change that allowed congressional staffers to get subsidies while signing up for Obamacare.
Here’s what Judge William Griesbach [a 2002 Bush appointee] decided in that case, two days ago:
Given that the plaintiffs receive, at worst, a benefit, they cannot claim to be injured under an equal protection theory.
There is nothing in the Constitution stipulating that all wrongs must have remedies, much less that the remedy must lie in federal court. In fact, given the Constitution’s parsimonious grant of judicial authority, just the opposite is true. As the Supreme Court has observed, “[o]ur system of government leaves many crucial decisions to the political processes. The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.”
Another legal issue that has been raised about Boehner’s case is that he is representing that the entire legislative branch, i.e., Congress—has been injured and that Congress has exhausted all remedies, but his suit only represents one house of Congress—by a slim partisan majority, at that. I suspect that the Senate would not agree that it has been a) injured or b) exhausted all remedies.
And, given the following from Vox, I’d say that Justice Scalia, one of the most conservative of the supremes, agrees:
Justice Antonin Scalia wrote in a Supreme Court dissent last year that the consequences of loosening standing requirements could be vast. Scalia darkly imagined a system “in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress’s liking.” He added, “Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor.”
So. A reasonable person might ask “why would the GOP embark on such a high-profile fool’s errand with an important mid-term election pending?”
And the answer is probably—lesser of two evils—or as Ezra Klein put it:
Assuming House Republicans ultimately back Boehner’s lawsuit, it will begin a lengthy legal process as the case winds its way through the courts. House Republicans will be able to go back to their districts and tell their base that they’re doing something radical and even unprecedented to bring Obama to heel. Meanwhile, Boehner can argue that attempting impeachment before the case finishes would be counterproductive: if Republicans raise impeachment as a remedy there’s no way the courts will get involved. They’ll just let Congress work it out.
Boehner is letting Republicans throw as many parties as they want in the House so he can make sure they don’t drink and drive home.