Less than a week ago, I noted that the lawsuit against President Obama had still not been filed notwithstanding the fact that it had been authorized at the end of July and that House Leadership had said it would be filed before the midterms. In part, the delay was necessitated by the fact that the initial law firm that House GOP Leadership had hired to handle the case had backed out after negative reaction from long standing clients. In addition, though, it seemed apparent that the realization had set in that filing before the midterms could end up back firing on the GOP, and that the grounds for the lawsuit were not very strong to begin with. Now, the lawsuit has hit another snag:
House Speaker John Boehner’s still-unfiled lawsuit against President Barack Obama for exceeding his constitutional power is in more trouble.
For the second time in two months, a major law firm has ceased work on the lawsuit, sources say.
Attorney Bill Burck and the Quinn Emanuel firm halted preparations for the proposed suit in recent weeks, according to two sources familiar with the situation. Last month, the lawyer originally hired to pursue the case, David Rivkin of Baker Hostetler, made a similar abrupt exit.
A spokesman for Boehner declined to discuss the status of the House’s relationship with Burck and Quinn Emanuel. However, spokesman Kevin Smith said Wednesday evening that House leaders are considering having the lawsuit filed by lawyers already on the House payroll.
“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,” Smith said.
Boehner’s office also suggested the suit, which planned to challenge Obama’s failure to implement aspects of his health care reform law, could be broadened if Obama goes forward, as promised, with plans for executive action on immigration.
“We are also closely following what the administration does on executive amnesty, and the possible impact that could have on the litigation strategy,” Smith said.
A House leadership aide said if the immigration issue is litigated it would be in addition to, and not in lieu of, challenging Obamacare.
Burck declined to comment about the status of the litigation. The contract he signed with the House last month bars his firm and its employees from speaking to the media about the litigation without prior approval from the House General Counsel Kerry Kircher.
Moving the litigation in-house could also help quiet a regular line of criticism from Democrats: namely that Republicans are wasting taxpayer funds on a lawsuit against the president. Lawyers at both firms were to be paid up to $500 an hour for a total of up to $350,000 for the first stage of the case.
(…)
A new resolution and a new vote would likely be required if the suit were expanded to matters other than Obamacare, such as immigration.
Lawyers involved in discussions about the planned lawsuit said they originally expected it to be filed in September, but POLITICO reported last week that it was unlikely the case would be filed before the election. Some cited the turmoil on the legal team, while others said they suspected a decision to deliberately lower the profile of the lawsuit in advance of the midterms.
In addition, a Congressional Research Service report completed in September and published Friday by two liberal lawyers in the Washington Monthly indicated that a suit focusing on delayed enforcement of some aspects of Obamacare was likely to get little traction in the courts.
Some Democratic lawyers and a few Republican attorneys have said they believe it’s possible no suit will ever be filed.
At this point, I wouldn’t be surprised if that’s what actually happens. The point at which the underlying claims against the President that would be included in the lawsuit that is authorized by the resolution passed in July, in addition to being incredibly weak are also approaching the point where they are likely to be moot by the time any Court would get around to actually considering the merits of the case. More likely than not, it would take at least a year for the question of whether or not the House even had legal standing to sue the President to be resolved. While the odds are that the ultimate answer to that question seems likely to be no, if it somehow turns out that the Courts allow the suit to go forward it would only be after that preliminary legal question would be resolved and the issue of the delay in the employer mandate would be over by then and there would be no case or controversy for the Court to deal with. At that point, as I’ve said before, we’re likely to be at the point where President Obama is, at most, months away from leaving office in any case. So, proceeding forward solely on a lawsuit on these grounds seems like a waste of time and resources even if the House decides to keep the legal work in House.
As the linked article notes, though, things could change from the perspective of the Republicans in the House if the President takes Executive action of some kind on immigration as many still expect him to do after the elections. At that point, the House, and the Senate if the GOP does end up in Republican hands, could decide to change or expand the focus of the lawsuit to include challenges to those actions whatever they might be. That would require passage of a brand new resolution, of course, and the Senate would have to pass its own resolution if Senate Republican Leadership decided that it wanted to join in on the lawsuit. Additionally, such a lawsuit would face the same problems regarding standing, the Political Question Doctrine, and justicability that the current proposed lawsuit does. As with that proposed lawsuit, the hypothetical new one would likely take at least a year making it through the District Court and Circuit Court of Appeals and, potentially, Supreme Court before those preliminary questions are resolved. While a lawsuit based on the immigration issue would not face the same mootness issue in the future that one based on PPACA delays would, it would face other problems on the merits that would make it seem likely that it would succeed. For example, the laws Congress has passed give the Executive Branch significant discretion in enforcing immigration laws, especially when it comes to the question of how to handle deportation proceedings. If, as many expect, the President’s actions end up resembling an expanded form of the Deferred Action For Childhood Arrivals (DACA) program announced in 2012, then it’s hard for me to see a Court ruling that the actions are impermissible. Additionally, the GOP would be taking a significant political risk by challenging Obama on this issue. While it would be popular with the party base, it would further alienate Latino and young voters, and that could be a problem for Republicans heading into 2016.
In the end, of course, the lawsuit, either the one now contemplated or some future suit based on immigration, isn’t really about legal arguments. It’s about the political struggle between the President and Congress and about the Republican Parry’s efforts to placate a base that has been demanding to see Republican Congressional Leadership “get tough” with President Obama. In other words, it falls directly into the category of cases covered by the Political Question Doctrine that leads Federal Courts to generally avoid getting involved. To some extent, the GOP leaders in the House and the Senate achieve most of their political goals merely by threatening the lawsuit, so perhaps they will ultimately decide not to file it, though. Even if they do go ahead, though, the fact will remain that their goals are purely political and that their legal grounds are, at best, incredibly weak. In other words, any lawsuit that Congress files against the President may not be frivolous to be considered sanctionable under the rules that govern Civil Procedure in the Federal Courts, but it would be likely to come pretty darn close.
