Congratulations to John Boehner! Defying the odds and expectations, the speaker of the House actually followed through on a promise, albeit belatedly. On Friday, Boehner’s office announced that the House of Representatives had finally filed its lawsuit against Barack Obama over his changes to the implementation of the Affordable Care Act. After the House voted along party lines to authorize the suit in July, the case fell into limbo as Republicans ran into difficulty finding a lawyer who would actually take the case.
But now they’ve successfully lawyered up, having tapped legal scholar Jonathan Turley to serve as lead counsel. If you’ve been following the twists and turns of this drama, you might recall that Turley was one of the two witnesses who testified before the House Rules Committee in favor of approving the suit. Now he’s made the jump from expert witness to (very likely well-compensated) participant, and the Republican suit against the president is officially on the books.
Which is to say that the suit has very likely just begun its short, uneventful journey to being thrown out of court. To figure out why, all one has to do is look at what happened the last time a member of Congress tried to sue Obama.
Back in 2011, a group of 10 lawmakers led by then-Rep. Dennis Kucinich filed suit against the president, claiming that Obama’s decision to intervene militarily in the Libyan civil war was unconstitutional given that he had not obtained authorization from Congress. At the time there was a real debate over whether Obama had acted outside the scope of his authority – a debate made murky by the fact that presidents have been unilaterally ordering military action for decades, to no real objection from Congress. Kucinich and his buddies decided that the best way to resolve the issue was to initiate a lawsuit, and they hired themselves a lawyer: Jonathan Turley.
That suit was filed on June 15, 2011. The administration filed a motion to dismiss the case, arguing that members of Congress lack standing to sue the executive branch. Four months after the suit was filed, Judge Reggie Walton of the District Court for the District of Columbia granted the motion to dismiss and came down hard on Kucinich and his compatriots. Walton dismissed outright the notion that the plaintiffs had any business filing their suit, pointing to the “line of cases that have all but foreclosed the idea that a member of Congress can assert legislative standing to maintain a suit against a member of the Executive Branch.”
In a footnote to his ruling, Walton chastised the plaintiffs for wasting the time and resources of the court in pursuit of a political goal:
While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law. The Court does not mean to imply that the judiciary should be anything but open and accommodating to all members of society, but is simply expressing its dismay that the plaintiffs are seemingly using the limited resources of this Court to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.
The court didn’t rule on the constitutional issue raised by the suit, but that’s sort of the point – Congress doesn’t have standing to sue the president because the Constitution grants Congress means to check the authority of the executive that don’t involve the courts. The bar a member of Congress must clear in order to sue the White House is extraordinarily high, and the people involved in Kucinich v. Obama were fully aware that they were almost certain to fail. After the case was thrown out, Turley posted a statement on his website calling it “a disappointing but not unexpected decision.”
You’d have to think that Turley is expecting disappointment this time around as well. But he’s just a man with a passion for tilting at this particular windmill – what would a dismissal mean for Boehner? The short answer: nothing good.
Politically, the lawsuit makes some sense, but not much. Suing Obama over the ACA or immigration or whatever is one way Boehner can appease the easily agitated members of his caucus who are just itching to get into a fight with Obama over government funding or introduce articles of impeachment. In hyping the lawsuit, Boehner claimed that he was standing up against an imminent threat to the Constitution and throwing up roadblocks to a would-be tyrant who intends to run roughshod over Congress.
When it fails to even get a hearing in court, Boehner will look foolish. All that talk about standing up to Obama and defending the Constitution will have been laid low by the fact that he couldn’t get a judge to agree to hear his case. And all the impeachment- and shutdown-happy conservatives are going to start asking what he’s prepared to do to make good on his promises to save Congress from Obama’s “power grabs.”