Yesterday, on an entirely unsurprising party line vote, the House of Representatives voted to authorize a lawsuit against President Obama on the ground that he exceeded his authority has President when he extended the deadline for employers to comply with the Affordable Care Act’s insurance mandates until 2015:
WASHINGTON — The House of Representatives voted on Wednesday to sue President Obama for overstepping the powers of the presidency — a move that has angered conservatives who call it insufficient, emboldened Democrats who say Republicans are being vengeful, and further eroded much of what is left of bipartisanship on Capitol Hill.
In a 225-to-201 party-line vote, Republicans authorized the House to move forward with a lawsuit against Mr. Obama for his application of the Affordable Care Act, which they argue has been selective and intended to delay the law’s most undesirable aspects.
During a pointed, impassioned hourlong debate, Republicans accused the president of flouting the law and breaking a solemn constitutional oath. They summoned lessons from the American Revolution and the Bible.
Speaker John A. Boehner all but accused Mr. Obama of leaving the Constitution in tatters. “No member of this body needs to be reminded about what the Constitution states about the president’s obligation to faithfully execute the laws of our nation,” Mr. Boehner said from the House floor. “Are you willing to let any president choose what laws to execute and what laws to change? Are you willing to let anyone tear apart what our founders have built?
Democrats pointed to a litany of bills that Mr. Boehner had kept from reaching the floor for a vote this year — legislation to raise the minimum wage, extend unemployment insurance and overhaul the immigration system — and accused Republicans of wasting time and money.
“A sorry spectacle of legislative malpractice,” said Representative Louise M. Slaughter, Democrat of New York. “The majority of the American people recognize this for what it is: political theater.”
The lawsuit was Mr. Boehner’s version of what might be termed impeachment-light — a way to send a signal that Republicans would fight the president’s efforts to revise laws Congress had passed while not going as far as many on the right would like.
But, as the speaker has found with other efforts to appease the right wing of his party, he was not well received. Sarah Palin responded by calling for Mr. Obama’s impeachment, stirring up the kind of intraparty fight that Mr. Boehner had hoped to avoid. (Five Republicans voted no on Wednesday: Paul Broun of Georgia; Scott Garrett of New Jersey; Walter B. Jones of North Carolina; Thomas Massie of Kentucky; and Steve Stockman of Texas.)
Other prominent conservatives ridiculed the lawsuit. Erick Erickson, the blogger and pundit, also called it “political theater” that wasted taxpayer dollars. Mark Levin, the popular radio host and former Reagan administration official, called it a “foolish move” that made him cringe.
On this point, Democrats agree.
In a speech in Kansas City on Wednesday, Mr. Obama’s mere mention of the lawsuit drew boos from the crowd. “Everybody recognizes this is a political stunt,” he said. “But it’s worse than that, because every vote they’re taking like that means a vote they’re not taking to actually help you.”
And he offered Republicans some advice: “Stop just hating all the time. Come on. Let’s get some work done together.”
Democrats have turned the lawsuit and rumblings of impeachment into a financial boon. The party claimed to have raised $1 million on Monday alone. “Don’t let this stand,” read one fund-raising email sent this week by the Democratic National Committee. “Chip in $10 or more before Thursday’s deadline to fight back.”
Representative Steve Israel of New York, chairman of the Democratic Congressional Campaign Committee, said, “When they decide to obsess on suing the president, they shouldn’t be surprised that our base is as energized as they’ve become.”
While there have been times in the past when individual Members of Congress, either alone or in small groups, have tried to sue the President, this is the first time that the House of Representatives as a body has ever filed a lawsuit against a sitting President. In no small part, of course, this is because nobody has ever conceived that such a thing would be possible, wise, or withstand legal scrutiny. Each time that an individual member of Congress has tried to sue the Executive, such as during the Libya incursion when several members tried to sue President Obama based on the provisions of the War Powers Act. As I’ve discussed before, on each of those occasions, the claims being asserted by the legislators were dismissed because the Federal Courts determined that they lacked standing to hear the matter. In part, this is because the a Congressman generally cannot allege any articuable legal injury that would form the basis of a claim that the President has exceeded his Constitutional authority and, in part, it is based on something called the Political Question Doctrine. This doctrine is a rule that courts have developed which essentially says that the Judiciary should not get involved in what are essentially political disputes between the Legislative and Executive Branches. While some advocates for the House lawsuit have argued that there are grounds on which the House as a whole could obtain standing, it seems fairly clear from existing case law that a lawsuit by the House of Representatives would be treated in the same way as a lawsuit by individual House members, and that it would be dismissed without the courts even getting to the merits of the case.
Even assuming that the House manages to get past the standing issues, though, it’s hard to see how their case has any chance of succeeding on the merits. While it’s hard to judge such things before a Complaint has even been made public, there’s something quite odd about the entire basis for the House lawsuit. Essentially, the House seems as though it will be arguing that the President exceeded his legal authority when he delayed enforcement of the mandate until 2015 to give employers more time to comply with the law. In essence then, House Republicans will be asking a Federal Court to force the President to implement the Affordable Care Act, a law that they have vehemently opposed since before it came law, faster and to force employers to comply with the law earlier than they are currently required to under the relevant Treasury Department regulations. More importantly, though, it seems quite apparent that the legal issues that the merits of the lawsuit raise will not be resolved before the extension expires. Even on an expedited basis, it would take at least a year for the issue of standing to be litigated and decided by the District Court and the Court of Appeals, and that period would stretch out even longer if the matter were appealed to the Supreme Court, which seems likely. By this time, the extension period will have expired and the factual basis for the House lawsuit will have become moot before any Court even rules on the merits of the claim. Therefore, even if the House has standing to file a lawsuit against the President in this situation, the lawsuit itself is pointless form a legal point of view.
Of course, this lawsuit isn’t really about the law, it’s about politics. On one level it is the latest round in the disputes that have existed between President Obama and House Republicans since the 2010 elections as well as further ammunition for the GOP in their ongoing argument that the President has exceeded his authority on numerous occasions, although it is striking that the House is not relying on any of those other alleged usurpations in its proposed Complaint. In that respect, the lawsuit is aimed not at winning some objective in Court but at motivating the Republican base to come to the polls in the upcoming midterm elections in the hope that this will be enough to give the GOP the edge it would need to capture control of the Senate. Finally, as many political pundits have observed, it is rather obvious that a primary motivation for the House Leadership in proposing this lawsuit is to placate the Tea Party wing of the GOP and the House GOP Caucus, and to tamp down the impeachment talk that continues to percolate in the Republican Party no matter how much its leaders try to deny that it exists. It is, in other words, a political stunt.
Jennifer Rubin pretty much acknowledges that in her column today:
Whether or not the House has the better of the legal arguments, the suit is worthwhile as a teachable moment (as the president likes to call clarifying events). The House and its supporters in court and in the court of public opinion can make the case that the president has behaved in new and wholly improper ways. The administration should be forced to defend itself, and perhaps take positions that may be problematic when a Republican president is in office. It will help inform the 2014 and 2016 elections, focusing the public on electing people who respect their roles and can work with other branches, not run roughshod over them.
The president has gone from aggrieved victim of congressional intransigence to lawless bully. It’s time someone, even in a symbolic way, called attention to this development. That, in turn, may temper the ambitions of constitutional menaces in future administrations. It will also be amusing to see liberal elites – who claimed President George W. Bush “shredded the Constitution” by issuing signing statements – cheer the concept of an imperial president, shorn of constitutional niceties (such as seeking legislation from Congress)
There’s something inherently irresponsible, though, about using the legal system as a tool for political gain in this matter. Theoretically, at least, filing a lawsuit solely for such a purpose would be a violation of Rule 11 of the Federal Rules of Civil Procedure, which prohibits the filing of claims in Federal Court for “improper purposes” and requires, among other things, that the legal arguments presented be “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” While I’m sure that the Complaint that is ultimately filed will be able to pass this minimal test, viewing it from the perspective of the Jennifer Rubin’s of the world, and judging the intent of Congress solely based on what was said on the House Floor yesterday it is hard for me not to conclude that this lawsuit is being filed for what are arguably improper purposes. At the very least, it is going to be a waste of taxpayer dollars and judicial resources, and an attorney that signs off on it ought to be ashamed. I hope House Republicans are proud of themselves.
