Remember when John Boehner was going to sue President Obama? It seems like an age ago, what with all the immigration crises and Ebola outbreaks and wars in the Middle East that happened since the House Republicans got it in their heads to file suit against the president over his changes to the Affordable Care Act’s implementation. The lawsuit was announced with great fanfare, and conservative political observers, like the Wall Street Journal editorial board, were impressed with Boehner’s seriousness. Hearings were held, votes were cast, and the suit was on its way through the legal system.
Or so we thought. Since voting to authorize the lawsuit in early July, Boehner and the House GOP have sat on their hands. “It takes about 10 minutes to walk from the Capitol to the federal courthouse just down the hill,” Politico’s Josh Gerstein reported last Friday, “but House Republicans haven’t managed to make that trip in the four months since they announced they’d be suing the president.”
Boehner’s slow-foot approach to the lawsuit is a bit puzzling, given that he justified the lawsuit in part by arguing that the Constitution was under imminent threat from Obama’s “lawlessness” and action had to be taken immediately. “The legislative branch has an obligation to defend the rights and responsibilities of the American people,” Boehner wrote in an Op-Ed for CNN, “and America’s constitutional balance of powers — before it is too late.” Now Boehner’s people are telling Politico that they’ll get around to it when they get around to it: “A spokesman for Boehner said the date for filing the litigation remains up in the air. ‘No decisions on timing at this point,’ spokesman Kevin Smith said Friday.”
So what’s going on here? Well, there seem to be three answers for why Boehner’s lawsuit is trapped in limbo. The first is that they never actually intended to follow through with the suit and that this was all a pre-election stunt intended to motivate the GOP base and mollify impeachment-crazy conservatives. That’s difficult to demonstrate conclusively, but it’s a satisfactory explanation for the utter lack of progress on the suit four months after its heavily hyped debut.
The second is that Republicans were actually going to file the suit, but started having second thoughts as the legal rationale fell apart and political embarrassments piled up. Key Republicans broke with Boehner by arguing that asking the courts to intervene in a separation-of-powers conflict was not the best solution, and that Congress’ best answer to executive overreach was to actually pass legislation. When the House Rules Committee held its hearing on the merits of the suit, it was discovered that one of the experts Republicans called to testify in favor of suing had previously argued unequivocally that Congress lacks standing to sue the White House.
As for the legal rationale for Boehner’s proposed action, the suit was considered a wild long shot even before the House voted to authorize it, and since then it’s only faced more and more setbacks. The most recent was turned up by Constitutional Accountability Center attorneys Simon Lazarus and Elisabeth Stein, who found a Congressional Research Service report from September that, in their view, leaves zero doubt that Boehner’s suit has no legal merit:
Although shrouded in twelve pages of fine print and protectively bureaucratic phraseology, the report’s bottom line is clear: not merely are the legal underpinnings of the Republicans’ planned lawsuit weak; the report turns up no legal basis - no “there” there - at all.
Per Lazarus and Stein, the report “bears the earmarks of an inquiry, requested by the Speaker or his allies, to give some color of legitimacy to their charges of rampant presidential illegality. Instead, the result validates the lawyers’ maxim not to ask a question when unsure of the likely answer.”
The third explanation for the delay is that Republicans want to wait until after the midterms so that they’re not seen as merely trying to influence the elections. That’s the theory put forth by one conservative legal analyst quoted by Politico: “After the election, it ought to garner more serious commentary, evaluation and judicial review.” This theory doesn’t make a ton of sense. The politicization of the lawsuit already happened. What difference would the simple bureaucratic act of initiating the lawsuit make when they already spent several weeks during the summer politicizing the hell out of the Rules Committee hearing on the suit and the party-line vote to authorize it? It’s a little late for the GOP to argue that they don’t want this to look political.
But whatever the reason, the fact remains that Boehner’s suit, once heralded as a necessary step to curb the abuse of President Obama’s executive authority, is now moribund.