The more we learn about John Boehner’s scheme to sue President Obama, the more it begins to sound like a terrible idea. I know that the Wall Street Journal editorial board and other august intellectual heavyweights on the right are impressed with Boehner’s commitment to good government, but as you dig into Boehner’s political and policy motives, you start seeing so many ways in which this stunt can horribly backfire.
Last week, Boehner announced that the lawsuit — the scope of which he’d hinted could touch on everything from health care to energy to education to foreign policy — would be narrowly focused on Obama’s 2013 decision to delay enforcement of the Affordable Care Act’s employer mandate. (Boehner’s statement said that Obama “creat[ed] his own law by literally waiving the employer mandate,” making him guilty of misstating what Obama actually did and misusing “literally.”)
“That’s not the way our system of government was designed to work,” Boehner said. The inescapable logic of this position is that, for the government to properly function, the employer mandate must immediately go into effect.
You know who hates the employer mandate? Republicans. You know which specific Republican really, really hates the employer mandate? John Boehner. In 2011, the Speaker’s office released a report detailing “the economic and fiscal consequences" of the Affordable Care Act. As you can imagine, the findings were not pretty. According to the report: “A study by the National Federation of Independent Businesses (NFIB), the nation’s largest small business association, found that an employer mandate alone could lead to the elimination of 1.6 million jobs between 2009 and 2014, with 66 percent of those coming from small businesses.”
It’s possible that he has since reconsidered his attitude toward the employer mandate, but this seems unlikely. What Boehner is doing is suing to force implementation of a policy that he’s said will hurt the economy.
Politically, Boehner’s suit looks like an impotent half-measure with internally inconsistent logic. In his statement explaining the scope of the suit, Boehner said the Constitution needed protecting: “This isn't about Republicans versus Democrats; it’s about the Legislative Branch versus the Executive Branch, and above all protecting the Constitution.” Boehner’s CNN Op-Ed said the danger to the Constitution and the country was imminent: “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.” Boehner’s been clear on this point: the Constitution is under urgent threat by the president.
And his response to this urgent threat is … to ask the courts for permission to sue? He’s essentially making a case for impeachment, but arguing that the best remedy is an uncertain legal process that will take years to find resolution, if it even makes it to court in the first place. The logic doesn’t hold up.
If the courts reject Boehner’s lawsuit for lack of standing — a likely outcome — what then? He’s already gone on record describing the need to protect the government and the American people from Obama’s Constitution-killing executive orders. If the courts tell him no, is he just going to say “oh well, guess that’s it for the Constitution, no one can say we didn’t try”?
He’ll be under more pressure than ever from conservatives to actually go forward with impeachment. If he doesn’t, he’ll look like a fool and seem even weaker than he already is. If he does, he’ll invite a repeat of the political disaster Republicans endured in 1998.
But let’s say the courts do grant Boehner standing and the lawsuit goes through — it’ll be a glorious victory for the American voter and the Constitution, right? Not really. While Boehner is busily complaining that the executive branch is amassing too much power for itself, his prescribed remedy will succeed in granting more power to the judiciary, which right now tends not to get involved in spats between the other two branches.
Jonathan Bernstein lays out the problems with inviting the courts to act as arbitrators between the executive and the judiciary:
Normally, each branch has an opportunity to interpret the law (those separated institutions sharing powers again), but doctrines such as standing limit the courts' ability to intervene.
If, however, they can intervene whenever a house of Congress is unhappy, then the courts get a much more active role in determining what the laws say. And why just a house of Congress? What if the president sued Congress, for example, if it failed in its obligation to produce appropriations bills on time? Instead of a government shutdown, would we get an injunction and then a judicial act of appropriations, with someone appointed by Bill Clinton or Ronald Reagan making 302(b) allocations by judicial fiat? Or perhaps we'd wind up with individual senators jurisdiction shopping, looking for a friendly judge to overturn some fight they lost in committee or on the Senate floor.
Boehner says he’s acting in the interest of American voters, but what he’s actually doing is putting the only branch of the federal government that doesn’t answer to voters in a position to accumulate greater power.
Gaming out scenarios like this gives one the impression that Boehner doesn’t really know what the endgame is here. That would be consistent with pretty much every other grand and dramatic gesture he’s made during his Speakership that’s ultimately blown up in his face.