House Votes To Authorize Utterly Pointless Lawsuit Against President Obama
Your tax dollars, not at work.
Yesterday, on an entirely unsurprising party line vote, the House of Representatives voted to authorize a lawsuit against President Obama on the ground that he exceeded his authority has President when he extended the deadline for employers to comply with the Affordable Care Act’s insurance mandates until 2015:
WASHINGTON — The House of Representatives voted on Wednesday to sue President Obama for overstepping the powers of the presidency — a move that has angered conservatives who call it insufficient, emboldened Democrats who say Republicans are being vengeful, and further eroded much of what is left of bipartisanship on Capitol Hill.
In a 225-to-201 party-line vote, Republicans authorized the House to move forward with a lawsuit against Mr. Obama for his application of the Affordable Care Act, which they argue has been selective and intended to delay the law’s most undesirable aspects.
During a pointed, impassioned hourlong debate, Republicans accused the president of flouting the law and breaking a solemn constitutional oath. They summoned lessons from the American Revolution and the Bible.
Speaker John A. Boehner all but accused Mr. Obama of leaving the Constitution in tatters. “No member of this body needs to be reminded about what the Constitution states about the president’s obligation to faithfully execute the laws of our nation,” Mr. Boehner said from the House floor. “Are you willing to let any president choose what laws to execute and what laws to change? Are you willing to let anyone tear apart what our founders have built?
Democrats pointed to a litany of bills that Mr. Boehner had kept from reaching the floor for a vote this year — legislation to raise the minimum wage, extend unemployment insurance and overhaul the immigration system — and accused Republicans of wasting time and money.
“A sorry spectacle of legislative malpractice,” said Representative Louise M. Slaughter, Democrat of New York. “The majority of the American people recognize this for what it is: political theater.”
The lawsuit was Mr. Boehner’s version of what might be termed impeachment-light — a way to send a signal that Republicans would fight the president’s efforts to revise laws Congress had passed while not going as far as many on the right would like.
But, as the speaker has found with other efforts to appease the right wing of his party, he was not well received. Sarah Palin responded by calling for Mr. Obama’s impeachment, stirring up the kind of intraparty fight that Mr. Boehner had hoped to avoid. (Five Republicans voted no on Wednesday: Paul Broun of Georgia; Scott Garrett of New Jersey; Walter B. Jones of North Carolina; Thomas Massie of Kentucky; and Steve Stockman of Texas.)
Other prominent conservatives ridiculed the lawsuit. Erick Erickson, the blogger and pundit, also called it “political theater” that wasted taxpayer dollars. Mark Levin, the popular radio host and former Reagan administration official, called it a “foolish move” that made him cringe.
On this point, Democrats agree.
In a speech in Kansas City on Wednesday, Mr. Obama’s mere mention of the lawsuit drew boos from the crowd. “Everybody recognizes this is a political stunt,” he said. “But it’s worse than that, because every vote they’re taking like that means a vote they’re not taking to actually help you.”
And he offered Republicans some advice: “Stop just hating all the time. Come on. Let’s get some work done together.”
Democrats have turned the lawsuit and rumblings of impeachment into a financial boon. The party claimed to have raised $1 million on Monday alone. “Don’t let this stand,” read one fund-raising email sent this week by the Democratic National Committee. “Chip in $10 or more before Thursday’s deadline to fight back.”
Representative Steve Israel of New York, chairman of the Democratic Congressional Campaign Committee, said, “When they decide to obsess on suing the president, they shouldn’t be surprised that our base is as energized as they’ve become.”
While there have been times in the past when individual Members of Congress, either alone or in small groups, have tried to sue the President, this is the first time that the House of Representatives as a body has ever filed a lawsuit against a sitting President. In no small part, of course, this is because nobody has ever conceived that such a thing would be possible, wise, or withstand legal scrutiny. Each time that an individual member of Congress has tried to sue the Executive, such as during the Libya incursion when several members tried to sue President Obama based on the provisions of the War Powers Act. As I’ve discussed before, on each of those occasions, the claims being asserted by the legislators were dismissed because the Federal Courts determined that they lacked standing to hear the matter. In part, this is because the a Congressman generally cannot allege any articuable legal injury that would form the basis of a claim that the President has exceeded his Constitutional authority and, in part, it is based on something called the Political Question Doctrine. This doctrine is a rule that courts have developed which essentially says that the Judiciary should not get involved in what are essentially political disputes between the Legislative and Executive Branches. While some advocates for the House lawsuit have argued that there are grounds on which the House as a whole could obtain standing, it seems fairly clear from existing case law that a lawsuit by the House of Representatives would be treated in the same way as a lawsuit by individual House members, and that it would be dismissed without the courts even getting to the merits of the case.
Even assuming that the House manages to get past the standing issues, though, it’s hard to see how their case has any chance of succeeding on the merits. While it’s hard to judge such things before a Complaint has even been made public, there’s something quite odd about the entire basis for the House lawsuit. Essentially, the House seems as though it will be arguing that the President exceeded his legal authority when he delayed enforcement of the mandate until 2015 to give employers more time to comply with the law. In essence then, House Republicans will be asking a Federal Court to force the President to implement the Affordable Care Act, a law that they have vehemently opposed since before it came law, faster and to force employers to comply with the law earlier than they are currently required to under the relevant Treasury Department regulations. More importantly, though, it seems quite apparent that the legal issues that the merits of the lawsuit raise will not be resolved before the extension expires. Even on an expedited basis, it would take at least a year for the issue of standing to be litigated and decided by the District Court and the Court of Appeals, and that period would stretch out even longer if the matter were appealed to the Supreme Court, which seems likely. By this time, the extension period will have expired and the factual basis for the House lawsuit will have become moot before any Court even rules on the merits of the claim. Therefore, even if the House has standing to file a lawsuit against the President in this situation, the lawsuit itself is pointless form a legal point of view.
Of course, this lawsuit isn’t really about the law, it’s about politics. On one level it is the latest round in the disputes that have existed between President Obama and House Republicans since the 2010 elections as well as further ammunition for the GOP in their ongoing argument that the President has exceeded his authority on numerous occasions, although it is striking that the House is not relying on any of those other alleged usurpations in its proposed Complaint. In that respect, the lawsuit is aimed not at winning some objective in Court but at motivating the Republican base to come to the polls in the upcoming midterm elections in the hope that this will be enough to give the GOP the edge it would need to capture control of the Senate. Finally, as many political pundits have observed, it is rather obvious that a primary motivation for the House Leadership in proposing this lawsuit is to placate the Tea Party wing of the GOP and the House GOP Caucus, and to tamp down the impeachment talk that continues to percolate in the Republican Party no matter how much its leaders try to deny that it exists. It is, in other words, a political stunt.
Jennifer Rubin pretty much acknowledges that in her column today:
Whether or not the House has the better of the legal arguments, the suit is worthwhile as a teachable moment (as the president likes to call clarifying events). The House and its supporters in court and in the court of public opinion can make the case that the president has behaved in new and wholly improper ways. The administration should be forced to defend itself, and perhaps take positions that may be problematic when a Republican president is in office. It will help inform the 2014 and 2016 elections, focusing the public on electing people who respect their roles and can work with other branches, not run roughshod over them.
The president has gone from aggrieved victim of congressional intransigence to lawless bully. It’s time someone, even in a symbolic way, called attention to this development. That, in turn, may temper the ambitions of constitutional menaces in future administrations. It will also be amusing to see liberal elites – who claimed President George W. Bush “shredded the Constitution” by issuing signing statements – cheer the concept of an imperial president, shorn of constitutional niceties (such as seeking legislation from Congress)
There’s something inherently irresponsible, though, about using the legal system as a tool for political gain in this matter. Theoretically, at least, filing a lawsuit solely for such a purpose would be a violation of Rule 11 of the Federal Rules of Civil Procedure, which prohibits the filing of claims in Federal Court for “improper purposes” and requires, among other things, that the legal arguments presented be “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” While I’m sure that the Complaint that is ultimately filed will be able to pass this minimal test, viewing it from the perspective of the Jennifer Rubin’s of the world, and judging the intent of Congress solely based on what was said on the House Floor yesterday it is hard for me not to conclude that this lawsuit is being filed for what are arguably improper purposes. At the very least, it is going to be a waste of taxpayer dollars and judicial resources, and an attorney that signs off on it ought to be ashamed. I hope House Republicans are proud of themselves.
Tax dollars are spent on tons of things that we have no idea about and probably wouldn’t approve of. This is political theater and that’s what the base of both parties wants. I know Obama wants this for Fundraising and the GOP wants to use this to get back the Senate.
Interesting though that Nate Silver, former darling of the left has a column saying, “The Democrats’ strategy has a parallel in 2006. That year, Republicans tried to rally their base around purported Democratic threats to impeach President George W. Bush”
http://fivethirtyeight.com/datalab/obama-impeachment-msnbc-fox-news/
While I regret the timing of the lawsuit, the remedies that all agree Congress has to reing in an executive branch it feels it has overreached are either unfeasible or highly disruptive. So why not have the courts settle a separation of powers dispute?
“Essentially, the House seems as though it will be arguing that the President exceeded his legal authority when he delayed enforcement of the mandate until 2015 to give employers more time to comply with the law.”
IOW, it’s perfectly OK with you for ANY president to make changes in any given piece of legislation – which is not part of his job? No? Then what do you mean? Where Would you draw a line?
“Of course, this lawsuit isn’t really about the law, it’s about politics.” And the (illegal) delay – design to delay unpleasant consequences of a poorly-written and even more poorly thought out bill until after an election – was NOT political?
Nice try.
@MR X:
Seriously?
When one considers all the other options, I think Boehner is the best alternative.
http://www.thinkingpoliticsforum.com/2014/07/boehners-lawsuit-is-least-bad-of-all.html
I find myself enjoying the precedent Obama’s setting. The next president can sic the IRS on all those liberal advocacy groups, decide when and how to enforce whatever laws he likes, rewrite laws on the fly, and undo all of Obama’s executive orders with a stroke of his pen. For example, if Obama grants amnesty to illegals by EO, then the next prez can take it away just as easily.
A fun little application of Gerald Ford’s observation that “a government big enough to give you everything you want is big enough to take away everything you have.”
I expect the District Court to easily dismiss this nonsense lawsuit bu then it will be appealed to those right wing idealogues on the DC Court of Appeals.
@alanstorm:
IOW, it’s perfectly OK with you for ANY president to make changes in any given piece of legislation – which is not part of his job? No? Then what do you mean? Where Would you draw a line?
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Er, delaying a deadline isn’t the same as changing the law. Think again- or maybe, just think.
@TPF: Because the courts won’t deal with anything they consider a “political question”?
@stonetools: Er, delaying a deadline isn’t the same as changing the law.
Except when the deadline is hard-coded into the law itself. The law says this WILL happen ON this date.
Or would it have been fine to simply “extend the deadline” of the Bush tax cuts, which had a sunset date written into the original bill?
@gVOR08:
So? Isn’t true.
SLATE
“A lot of people after 2012 started seeing what Nate was saying as tablets handed down from God,” said Cook, founder and editor of the Cook Political Report. “They started acting on it, in terms of donations. So I understand why the DSCC and DNC would bitch and moan about stuff we do, but go nuclear on Silver. The audience that Rothenberg and we have—it’s a Washington audience, mostly. It’s media, lobbyists, political action committees, political pros, grazing and taking things with a grain of salt. Nate has a very different audience and a sort of aura of infallibility.”
Silver cultivates that aura by declining to listen to the Democrats’ spiel. According to Cook, the DSCC sat with him and his team for “hours” before they issued a tranche of terrifying new Senate race ratings. Silver does not submit to any spin sessions. He collates the numbers, tells readers how he did so, and then laughs at the deniers.
Still, Democrats are happy to use Silver for their purposes. When he is bearish on a Republican, as he was on Scott Brown, it makes it into Democratic pitches. When he predicts a bad outcome for a Democrat, it makes it into even more pitches. Doom, the sort of doom that the reader is elite enough both to see and to halt, is a fantastic motivator.
So official Democrats are performing a neat mental trick: They actually disagree with Silver—hence their vigorous attacks on his recent forecast—but also use his gloom to help their fundraising. An open question for Silver is whether he’ll retain his popularity on the left if the election offers nothing but bad news for Democrats. Do the liberals who checked in daily with FiveThirtyEight and got good news after the Romney-Obama debate in Denver really want to be reminded of how bad the Senate races look? It was one thing to see which way a swing state like Virginia might tip, but it’s something else to obsess over a Senate race in a deep-red state where the candidate asking for your donation is going to distance himself or herself from the president you still support.
@Jenos Idanian #13:
The Bush tax cuts were indeed extended beyond their original expiration date of 2010, then (partially) permanently extended as a matter of law. I don’t remember people insisting that the Bush tax cuts MUST expire at the date originally set by statute , lest the Republic fail. Thanks for making my point
@stonetools: My admittedly very brief research shows that the Bush tax cuts were extended by law, not by fiat. I’ll look into it more later.
But the extension was in 2010, when Obama was president, so if there is a precedent, it’s on him.
Oh, and in 2012, it wasn’t extended by fiat, but by Congress and made retroactive.
@MR X:
So if Democrats agree with Nate Silver-its a sign they are in cahoots.
If they disagree with his forecasts-Its a sign they are STILL in cahoots.
So the voices are coming from INSIDE your tin foil hat, right?
(hat tip to commenter at Lawyers, Guns & Money blog).
@stonetools:
Not my words jerk off. slate. You know slate right?
Try getting off this site for a change and have some mental curiosity for
A change. You really make me laugh with your
Reflexive leftist comments without actually reading people’s
comments.
@MR X:
It’s certainly isn’t clear from your comment where in Slate you are quoting from or where the quote from Slate ends and your analysis-if you are engaging in analysis- begins. May be you could be clearer in future.
Wherever it derives from, the idea that the Silver is a “darling of the Left” is-well I’ll go with specious.
This is about two things: 1) throwing a bone to the Tea Party loons in hopes of distracting them from a suicidal impeachment debacle and. 2) Fundraising on both sides.
There already is a mechanism in place if an agency isn’t willing to execute the law. Unfortunately, the current interpretation allows very wide leeway to the agency, so this delay wouldn’t necessarily be a problem, especially given that it isn’t an attempt to not implement the entire law.
So the GOP is reduced to stunts like this.
@michael reynolds: You are so cynical! I believe Boehner honestly wants the President to reverse his decision and force companies to comply with the ACA immediately!
@MR X:
heres the article if you care http://www.slate.com/articles/news_and_politics/politics/2014/03/nate_silver_s_2014_senate_prediction_the_fivethirtyeight_whiz_forecasts.html
My Opinion on this is the Same. Both sides benefit. Political theater for the masses. Yes, its a pointless lawsuit that has 0 zero chance of winning but could just be the shot in the arm the Dems need to boost turnout to hold onto the Senate.
For those who believe in strict construction of the Constitution, this is a very odd action. Nothing in Article I authorizes Congress as whole, little lone just the 1/2 the legislature, to sue the President to enforce a specific law. Nothing in the debates in the Constitutional Convention indicated that James Madison, Alexander Hamilton, Gouverneur Morris, etc. or in the Federalist Papers suggested one house of the Congress to resort to the Federal courts to resolve a political dispute with the Executive. The founders were quite explicit that they believed Congress as whole could control the executive through the power of the purse (which in this case would require the Republican House and the Republican minority in the Senate reaching a compromise position with the Democratic majority in the Senate) or “the President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” Federalist 69 (A. Hamilton). Further, this President was popularly reelected just two years ago, when most of these issues, including the implementation of the Affordable Care Act, were plainly known. The provision of the law that the President delayed for one year due to administrative issues and adaption, the employer mandate, goes into effect on January 1, 2015, which will likely be before the case is decided.
@stonetools:
It’s derived from the commutative property of politics. Let’s lay out the math:
Liberalism == facts based
Nate Silver == facts based
therefore: Nate Silver == Liberalism
In Sunday’s Washington Post, Bush II Health & Human Services Secretary Michael O. Leavitt concurred that “The [Obama] Administration’s decision to delay the employer mandate was wise,” in light of the Bush Administration’s initially bumpy but ultimately successful phase-in of the 2004 prescription drug benefit to Medicare. Though “wise,” is the current postponement “illegal”? On the contrary, Treasury’s Mazur wrote to Chair Upton, such temporary postponements of tax reporting and payment requirements are routine, citing numerous examples of such postponements by Republican and Democratic administrations when statutory deadlines proved unworkable.
In fact, applicable judicial precedent places such timing adjustments well within the Executive Branch’s lawful discretion. To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been “unreasonably delayed.” But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor a credible end to its dithering. In deciding whether a given agency delay is reasonable, current law tells courts to consider whether expedited action could adversely affect “higher or competing” agency priorities, and whether other interests could be “prejudiced by the delay.” Even in cases where an agency outright refuses to enforce a policy in specified types of cases — not the case here — the Supreme Court has declined to intervene. As held by former Chief Justice William Rehnquist in a leading case on this subject, Heckler v. Chaney, courts must respect an agency’s presumptively superior grasp of “the many variables involved in the proper ordering of its priorities.” Chief Justice Rehnquist suggested that courts could lose their deference to Executive Branch judgment if an “agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” The Obama Administration has not and is not about to abdicate its responsibility to implement the statute on whose success his historical legacy will most centrally depend.
http://www.theatlantic.com/national/archive/2013/07/delaying-parts-of-obamacare-blatantly-illegal-or-routine-adjustment/277873/
It’s not pointless, Doug.
It’s about the mid-terms. Viewed as a campaign move, it’s not dumb or pointless at all.
The lawsuit itself may be groundless (and I think it is), but since actually winning the suit isn’t actually the point, that doesn’t really matter, does it?
Heh. You do know, Jenos, that executive orders have always been like that (revokable at the stroke of a pen), right? And the Obama has issued fewer than Bush did, and there has been a general downward trend in them for decades? Of course you knew that.
Extending a deadline != re-writing a law on the fly.
The IRS targetted a lot of groups that it thought were bullshitting about their charitable nature, including lefty groups. As they should, because tax evasion is a real thing that happens. Added scrutiny is, of course, a horrible crime. Like torture, perhaps, since we’ve been playing the false equivalence game lately. And of course you have zero proof that Obama “sicced” the IRS on anyone, but why would that stop you from claiming he did?
Don’t ever change, Jenos.
@MR X:
I saw that Silver article. It makes sense, though I’m not entirely sure using Fox vs. MSNBC as proxies for party strategy is perfect methology. They make decent proxies, I’ll grant.
The Dems will definitely try and make hay (or, viewed another way, lemonade from lemons) over the suit and the steady drip drip drip of impeachment talk from loose lips on the Right. Wouldn’t you?
edit: incidently, Silver wasn’t “the darling of the left” perse. He told “the Left” they were going to get clobbered in 2010 and was correct. “The Left” did not respond by calling him names but rather by thinking maybe he knew what he was doing. In 2012, this was confirmed. With regard to projecting election results, he’s good and remains as much of a “darling” as he ever was. Which is to say he’s trusted to be reasonably accurate.
@Rob in CT:
I do agree with you that if i were the DNC that i would be using this as a rallying cry to get people out in a midterm election. It might just be the difference in the Dems holding on to the Senate.
@MR X:
I think it will take more than that. The GOP probably has to do something more self-destructive in order to ensure the Dems hold the Senate. This is always possible with the present-day GOP, of course.
@Rob in CT:
Given today’s shenanigans, the GOP are already in self-destruct mode. Let’s not interrupt them.
Your comment presupposes a Republican president. That may be a little ahead of ourselves.
Of course, the fact that Obama has issued fewer executive orders than any president since Grover Cleveland is irrelevant.
and the Democrats never tried anything of the like with Bush… right?
@Kari Q: Of course, the fact that Obama has issued fewer executive orders than any president since Grover Cleveland is irrelevant.
Kari, I guess you’re ignorant of the aphorism of “quality over quantity?” Or do you actually think that the content of the orders is irrelevant?
@Kari Q: Kari, I guess you’re ignorant of the aphorism “it’s okay if you’re a Republican?”
See, it’s completely wrong to bring up something a Republican president did, whether it’s signing statements or crashing the economy or not fulfilling a campaign promise. We’re just living in the past and not holding Obama responsible. However, when the Republicans do something that Democrats have done it’s perfectly fine for them to say “they did it first” as we’ve seen yesterday with the impeachment post. It’s actually fun to watch them do it once you know to look for it.
@beth:
Also true is the way they have totally erased from public memory that a guy named GWB governed for eight years and applied mostly conservative Republican policies, and failed completely both at domestic and foreign policy. The quickest way to shut up a conservative? Start talking about GWB and discussing the failure of the policies he carried out.
@ Jenos
Perhaps you can provide some specifics detailing how Obama’s executive orders are somehow of lower “quality” than those of previous presidents. Please be specific.
Or are cliches all you have to bring to the discussion?