GOP's dopey lawsuit problem: Why a political gambit is doomed to failure

John Boehner says his suit against Obama is not political -- but politics are determining its scope

Published July 8, 2014 3:20PM (EDT)

John Boehner                                   (Reuters/Jonathan Ernst)
John Boehner (Reuters/Jonathan Ernst)

Just as everyone finished pretending that some actual news had been made about John Boehner’s plan to sue president Obama, some actual news happened. Roll Call’s Daniel Newhauser reported late yesterday afternoon that Boehner is “moving cautiously toward a late-July vote” on legislation that would authorize the suit, and that “sources on and off Capitol Hill have doubts that Boehner would target any immigration action.”

I obviously don’t know who Newhaus’ sources are, but if the general feeling coming from people in the know is that Boehner isn’t inclined to tackle immigration with his special little lawsuit, then that’s a pretty good indicator that this is the stunt everyone assumes it to be.

Over the last couple of weeks, ever since Boehner announced his lawsuit plans, he’s been wrapping himself in the mantles of principle and history. “At various points in our history when the executive branch has attempted to claim for itself the ability to make law,” Boehner’s June 25 memo to colleagues said, “the Legislative Branch has responded, and it is only through such responses that the balance of power envisioned by the Framers has been maintained.” With Boehner’s lawsuit announcement coinciding so closely with the final death of immigration reform and renewed Republican antagonism toward the president’s deportation policies, it felt like Obama’s executive actions on immigration were in Boehner’s cross hairs.

But the politics of immigration apparently have Boehner spooked. Going after Obama’s executive action to defer deportations for younger undocumented immigrants “could alienate Hispanic voters and give political fodder to those who already seek to paint the Republican Party as nativist,” Newhaus writes. It’s amusing that this could be what’s holding Boehner back; he did everything he could to slow-foot immigration reform and poison the GOP’s attempts at "rebranding" and their standing with Latino voters couldn't be much worse, so suing the president over immigration would be like setting fire to the ashes. Regardless, Boehner’s preferred target is apparently the post-passage changes made to the Affordable Care Act, which is a crowd-pleaser for the GOP’s conservative base.

When you start tailoring the parameters of the lawsuit to minimize political harm or maximize political benefit, it’s hard to argue that the suit isn’t rooted in politics. Newhaus quotes law professor Jonathan Turley saying, “the more issues that are piled into these lawsuits the more it looks like a political question.” In this case I’d say the opposite is also true. By focusing it as narrowly as he can on an issue that he feels is politically beneficial, Boehner would be sending the message that his commitment to the separation of powers and the wills of the Framers extends only so far as it will help his colleagues on the other side of the Capitol take control of the Senate.

An extremely narrow suit would also run counter to basically everything Boehner has been saying thus far about his intentions. The way he’s been describing it, Boehner intends the suit to be a historic check on executive authority. He’s been talking it up as a pushback to a problem of grand scope:

On one matter after another during his presidency, President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce – at times even boasting about his willingness to do it, as if daring the America people to stop him.  On matters ranging from health care and energy to foreign policy and education, President Obama has repeatedly run an end-around on the American people and their elected legislators, straining the boundaries of the solemn oath he took on Inauguration Day.

He’s also been portraying the problem as being so severe it requires sweeping action to save the country’s future, which is facing immediate peril. Here’s the conclusion to Boehner’s Op-Ed: “The legislative branch has an obligation to defend the rights and responsibilities of the American people, and America's constitutional balance of powers -- before it is too late.”

After setting up this epic clash between the legislative and executive branches over rampant lawlessness spanning many years and embodied by several varieties of executive action, he’s going to come back and say, “Actually we’d rather limit this fight to the Treasury Department’s tweaking of the Affordable Care Act’s employer mandate”? That doesn’t wash.

Whatever he settles on, Boehner has mountains of skepticism to overcome, on both the left and the right. And in the end, the scope of Boehner’s lawsuit is secondary to whether he can convince a judge to agree that Congress has standing to sue the White House in the first place. There’s a high likelihood that the courts will come back and tell him that the best thing he can do to curb executive authority is to use the tools made available to him by the Constitution for that explicit purpose: namely, legislating. That’s not something Boehner’s particularly good at, but that doesn’t mean it’s lost its effectiveness.

By Simon Maloy

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