It seemed unlikely that John Boehner’s plan to sue President Obama could turn into an even bigger embarrassment for the speaker of the House, but it’s never wise to doubt Boehner’s aim when shooting at his own foot.
Last week, Politico reported that Boehner and the House Republicans, after spending much of the summer arguing that immediate legislative action was needed to curb the Obama administration’s executive overreach, have not yet actually filed the lawsuit. The potential reasons for the delay are many: The suit was just a stunt, the GOP thought better of it when the political and legal winds turned against them, or they’re just waiting until after the election to avoid the appearance of politicization. But now we have another reason to consider: They can’t actually find any lawyers who will take the case.
Last night, Politico reported that a law firm the Republicans had hired to work on the case had called it quits – the second time in two months that this has happened. Apparently the firms in question were under pressure from other clients to back out of the case:
Rivkin’s firm withdrew in September after health-care-related clients pressured the firm to back out of representing the House in the Obamacare-related suit. Two sources told POLITICO in recent days that a similar scenario played out with Burck’s firm, with clients bringing pressure to get the firm off the case.
It’s tough to know what to make of this. The intent behind Boehner’s suit would be to challenge the administration’s decision to delay enforcement of the Affordable Care Act’s employer mandate. It’s an awkward situation for everyone involved given that the GOP is effectively suing to force the implementation of a law they want to repeal because they say it will destroy the economy. The consensus among legal observers is that the suit won’t actually make it to the courts because Congress lacks standing to sue the White House. There’s also the timing issue – the administration delayed enforcement of the employer mandate until Jan. 1, 2015. If the Republicans drag their feet long enough, they’ll be in the position of suing to enforce a provision of the law that is already being enforced.
In short, it’s a bizarre case with a very low probability of success and a high potential for embarrassment. In that sense, a degree of hesitancy from the legal community is perfectly understandable. To get around their difficulty in finding legal representation, a spokesman for Boehner told Politico that they’re considering using in-house attorneys: “The litigation remains on track, but we are examining the possibility of forgoing outside counsel and handling the litigation directly through the House, rather than through law firms that are susceptible to political pressure from wealthy, Democratic-leaning clients.”
They can blame faceless wealthy Democrats all they want, but this looks terrible for Republicans, given the enthusiasm with which they set this process in motion. Just about the only thing that hasn’t gone wrong for them is that both law firms they hired bowed out before they could rake in any taxpayer-provided legal fees.
This actually gets to the question of whether the GOP, if they gain full control of Congress next week, will be able to effectively govern. As I’ve pointed out, the House GOP has already told everyone that they can’t, and Boehner’s lawsuit is a pretty strong indicator that they’re right. The whole idea behind Boehner’s suit is that he, as leader of the House of Representatives, is unable to come up with a legislative solution to what he considers executive encroachment on Congress’ authority. The Constitution empowers Congress to serve as a check on the executive branch, and grants it tools to fulfill that role. Boehner, in suing Obama, is in effect saying that he wants to cede that authority to the judiciary (which is a terrible idea).
It’s a bit laughable for Boehner and the House Republicans to say they’re capable of governing when they’re also trying to get a judge to do their job for them, and they can’t even do that competently.