More seems curious than straightforward in Speaker John A. Boehner’s current plan for suing President Barack Obama.
But one of the easier things to understand is what the litigation might accomplish inside the House Republican Conference: a cooling of the intensifying and politically problematic talk about how nothing short of impeachment will do.
Legislation to authorize the lawsuit will get its first public hearing on July 16 at the Rules Committee. It’s on course for passage entirely along party lines in two weeks, just before the August recess begins. So it will be toward the end of September, just as Congress is preparing to decamp for the campaign trail, before the House’s lawyers actually take their complaint to the federal courthouse at the foot of Capitol Hill.
That means there’s almost no chance for even a preliminary resolution before the midterm elections. But the schedule will nonetheless provide the infuriated House Republicans several opportunities for venting their bloodlust this summer and fall.
Giving members of the GOP rank and file this way to focus their red meat rhetoric, and their appeals for donations from the hard right, could make calls for impeachment fade, if not quite disappear. And that is what Boehner has made clear he wants.
In this curious way, he is in the same place as his predecessor as speaker, with whom he sees eye-to-eye on next to nothing. But in the previous decade, Nancy Pelosi emphatically drew the line against having her Democratic House move to impeach President George W. Bush — choosing instead to preserve the vestiges of institutional seriousness for the House. That helped her avoid a constitutional showdown and denied her fellow liberal mainstays the most dramatic way possible to express anger at Bush’s launching of the Iraq War under inaccurate pretenses. Pelosi also concluded six summers ago that such a show vote might do her party more damage than good, angering swing voters (and galvanizing the GOP) so much that Democrats might squander their solid lead close to an election.
That seems very much like the calculation Boehner is now making. There will need to be a limit to the House’s formal expression of the passionate disdain that Republicans hold for almost everything to do with the 44th president. And, for reasons of political self-interest as much as deference to the democratic system, the line will be drawn at the Obama lawsuit.
There is no way to prevent some gadfly on the far right from introducing a resolution of impeachment, just as a gadfly on the far left (former Rep. Dennis J. Kucinich of Ohio) did twice. Such a proposal gets parliamentary privilege under the House rules, which in essence means it’s guaranteed some kind of floor vote. Both times in 2008 , all the Democrats including Kucinich voted to refer his measures to the Judiciary Committee — where Pelosi made sure the bills of particulars against Bush were never heard from again.
Such quick and choreographed roll calls are the best outcome that can be expected by those advocating for Obama's impeachment, who now include such luminaries on the tea-party-right as 2008 vice presidential nominee Sarah Palin and former Rep. Allen B. West of Florida.
Boehner is betting the conservative clarion callers will be more satisfied by the lawsuit, although initial reaction on the right has not been so hot.
The speaker had signaled he’d push the House to advance litigation alleging Obama had overstepped his executive authority and defied congressional direction on a wide array of fronts, mentioning energy regulations, education standards and foreign policy. Conservatives were pressing him to go further and sweep in some of the president’s more politically popular executive actions, such as raising the minimum wage on federal contracts and granting deportation relief to some immigrants brought to the United States illegally as children.
Instead, Boehner now says the lawsuit should focus on a single presidential action, Obama's delaying the start of the penalties for businesses that don’t provide medical insurance as required by the Affordable Care Act. “In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate,” the speaker said in a statement. “That’s not the way our system of government was designed to work. No president should have the power to make laws on his or her own.”
Making the suit entirely about Obamacare permits the GOP to resurrect a line of attack that had withered in recent months, but still energizes the party’s base as much as anything else. The choice remains odd on several other fronts.
As a matter of political communications, the suit runs the risk of sending a decidedly mixed message. The House is taking Obama to court to make him enforce a law that the House itself is on record wanting to both delay or scratch off the books. Republicans have famously voted for an outright repeal of the ACA dozens of times. And last summer, they passed legislation specifically written to codify the president’s employer mandate delay.
As a matter of law, it’s not easy to see how the House argues successfully that it has standing to bring such a suit. The general rule in a civil case is that plaintiffs must demonstrate they’ve been tangibly harmed by the other side’s actions, and time after time federal judges have said it’s not sufficient for members to claim a loss of political or institutional clout because a president frustrated the will of Congress.
Complicating matters further, the lawsuit will come more than a year after Obama acted, so a judge may wonder what took an outraged House so long. And the presidential postponement of the employer mandate ends with the end of the year, after which a judge may consider the matter moot.
But January is not the month that matters most to Boehner’s team of politically attuned attorneys. November is.
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