“Institutional Treason”: Boehner’s Lawsuit Is Betrayal Of Congress
Republicans have finally filed their lawsuit against the president over implementation of the Affordable Care Act. Actually, the president isn’t a respondent; the suit names the Secretary of Health and Human Services and the Treasury Secretary. It’s still a horrible idea.
Michael Lynch and Rachel Surminsky at the Monkey Cage provide one reason: The suit is likely to fail. The first issue is “standing.” To get into court, the House would have to prove that it was damaged by the way the administration carried out the ACA, and courts have consistently rejected that idea. Beyond that, it’s far from clear that the administration’s actions, including the delay of the employer mandate and cost sharing for insurance companies, were beyond the normal discretion the executive branch has to carry out laws. Just because some Republicans want to pretend that before January 2009 presidential power had been limited to pardoning Thanksgiving turkeys doesn’t mean they are right.
And if Republicans win, it would be terrible for Congress.
I’ll say it again: Speaker John Boehner and House Republicans aren’t asking for authority to be returned from the White House to Congress. They want an imperial judiciary that could trump either of the elected branches.
In a system of separated institutions sharing powers, which is what the Constitution created, all three branches do things that look a lot like legislating, but laws can trump administrative or judicial rule making. That gives Congress serious clout within the system. This lawsuit, however, is an abdication of that clout. In effect, it says that the courts, not Congress, should have the last word when there’s a dispute between branches.
Filing this lawsuit amounts to institutional treason. Boehner and House Republicans should be ashamed. The rest of us can only hope that the courts rescue them by keeping to precedent and tossing this lawsuit into the garbage.
Then, perhaps, the House could consider getting back to legislating.
By: Jonathan Bernstein, Bloomberg View, The National Memo, November 21, 2014
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“Learning The Hard Way”: House Republicans Can’t Find Anyone To Sue The President
It’s not so easy, it turns out, for Congress to sue the president.
Speaker John Boehner is finding that out the hard way after a second law firm withdrew from representing the House in the Republican-led lawsuit against President Obama over his use—or overuse—of executive authority. William Burck of the Washington-based firm Quinn Emanuel pulled out of the case last month, not long after he signed a contract with the House to replace David Rifkin of BakerHostetler.
The yet-to-be-filed suit has become an embarrassment for the speaker after he led the House in a party-line vote to authorize legal action against Obama back in August. The lawsuit would accuse the president of exceeding his authority by delaying implementation of the Affordable Care Act’s employer mandate without permission from Congress.
In both cases, according to sources working on the issue, the law firms succumbed to political pressure from Democratic clients who threatened to pull their business if the firms represented the House GOP in a partisan suit. Congressional Democrats had decried Boehner’s move as a waste of taxpayer money. They also successfully parlayed the planned lawsuit into a fundraising boon by telling liberal supporters it was a prelude to impeachment, which Boehner insisted was not the case.
But not only did the two firms withdraw, they ditched the case so quickly that neither of them performed enough work to bill the House, sources said. In an odd silver lining for House Republicans, nearly three months after they signed off on the lawsuit, not a single dollar of taxpayer money has been spent. It’s also not a given that the legal proceedings, whenever they begin, will drag out beyond Obama’s presidency. The expectation among staff working on the case is that a federal court, once the lawsuit is filed, could decide fairly quickly on whether it would go forward. There is little precedent for one chamber of Congress suing the president under these circumstances, and Republican staffers acknowledge the case could get thrown out.
House leaders have now all but given up on finding a new lawyer who will take the case, and Boehner is instead considering assigning the work to the chamber’s in-house counsel, which is a position appointed by the speaker.
“The litigation remains on track,” Boehner spokesman Kevin Smith said Thursday, “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.”
Another wild card is the likelihood that Obama will issue a broad executive order legalizing undocumented immigrants after the November election, a move that would inflame Republicans and generate calls for more legal action. In other words, the House could vote again in November or December to add immigration to the resolution authorizing a lawsuit over Obamacare.
“We are also closely following what the administration does on executive amnesty, and the possible impact that could have on the litigation strategy,” Smith said.
Democrats, meanwhile, have turned from criticizing Boehner to mocking him.
“Speaker Boehner cannot find a single lawyer in the entire country—even at $500 dollars an hour in taxpayer money—to file a lawsuit that is so totally devoid of any legal merit,” said Drew Hammill, a spokesman for Minority Leader Nancy Pelosi.
Burck did not return requests for comment. His firm’s withdrawal was first reported by Politico on Wednesday night.
By: Russell Berman, The Atlantic, October 30, 2014
“What’s A Speaker To Do?”: It’s Not Looking Good For Boehner’s Anti-Obama Lawsuit
When House Speaker John Boehner (R-OH) announced his plan to sue President Barack Obama for delaying enforcement of the Affordable Care Act’s employer mandate, the reviews were swift and negative. Legally, the lawsuit seemed destined for failure. Politically, it looked like a dud that could actively backfire on the GOP.
Two months later, things aren’t looking much better for House Republicans’ quest to scramble the balance of power in Washington.
On Tuesday, a federal appeals court tossed out a different lawsuit challenging the Obama administration’s employer mandate delay. The 7th Circuit Court of Appeals in Chicago ruled that the Association of American Physicians and Surgeons had no right to sue.
Politico’s Jennifer Haberkorn reports:
A unanimous three-judge panel threw out the case only three days after oral argument, a breakneck speed.
The physicians’ group argued that the Obama administration doesn’t have the right to delay the implementation of the employer mandate, particularly without delaying the individual mandate, too. The doctors said they are harmed because when people pay the penalty, they have less income to buy medical care from them.
“The [Supreme] Court has rejected efforts by one person to litigate about the amount of someone else’s taxes (or someone else’s subsidies, which are taxes in reverse),” Judge Frank Easterbrook wrote for the three-judge panel, which also included Judges William Bauer and Richard Posner. All three were nominated to the bench by Republican presidents.
This creates an obvious dilemma for Boehner and the House GOP, who are expected to advance a very similar argument. Making matters worse, their original legal team has jumped ship.
On Friday, The New York Times reported that attorney David B. Rivkin Jr., who had agreed to take the case on behalf of House Republicans, “withdrew from the case under pressure after facing criticism that he had taken on an overly partisan lawsuit.” The report adds that some of Rivkin’s partners feared that the suit would hurt the firm’s credibility, presumably due to its divisive nature and extremely long odds for success.
The new attorney handling the suit, William A. Burck, has recently popped up in the news for helping House Republicans sue Attorney General Eric Holder to turn over documents related to the “Fast and Furious” gun-running scandal, and for defending former Virginia first lady Maureen McDonnell in her corruption trial (neither ended particularly well).
So what is Speaker Boehner to do? He could abandon his plan in the name of fiscal conservatism, and save $350,000 for the taxpayers (and his caucus from a lot of embarrassment). But Republicans still have plenty of fundraising to do before Election Day, so expect them to plow ahead — and to refuse to rest until Obamacare is fully implemented.
By: Henry Decker, The National Memo, September 23, 2014
“Sniveling Little Children”: Boehner Laments ‘Knuckleheads’ Within House GOP
Once in a while, House Speaker John Boehner (R-Ohio) sounds like a man who isn’t entirely fond of his ostensible followers.
Speaker John Boehner said that he’s got a “few knuckleheads” to deal with, and that’s largely why the Republican majority in the House looks good on paper but doesn’t always pan out with votes.
“On any given day, 16 of my members decide they’re going to go this way, and all of a sudden, I have nothing,” he said, describing the reality of his “paper majority” in the House, The Hill reported. “You might notice I have a few knuckleheads in my conference.”
According to the report in the conservative Washington Times, Boehner went on say, “Dealing with Democrats is one thing. Dealing with the knuckleheads is another.”
Whether he finds one easier to deal with than the other was unclear.
These comments come just five months after the Ohio Republican publicly mocked his own members over their reluctance to work on immigration reform.
“Here’s the attitude: ‘Oh, don’t make me do this. Oh, this is too hard,” Boehner said, in a tone deriding House Republicans as if they were sniveling children. He added, “We get elected to make choices. We get elected to solve problems, and it’s remarkable to me how many of my colleagues just don’t want to.”
Remember, this was the Republican Speaker referring to Republican House members. Now Boehner is also willing to concede an unknown number of his members are “knuckleheads,” too.
The candor is certainly welcome, though the larger point is how understandable the Speaker’s dissatisfaction is.
As we were reminded in late July, when House Republicans killed Boehner’s border bill, the Speaker has surprisingly limited influence over what his members actually support.
A Democratic source on Capitol Hill recently sent around a brutal collection of bills Boehner asked his members to support, only to see his own House GOP conference reject his appeals: a grand bargain, a debt-ceiling bill in 2011, a payroll tax extension, a transportation bill, a farm bill, one fiscal-cliff bill, another fiscal-cliff bill, another farm bill, and then yesterday. I think my source might have even missed a couple, including the collapse of Boehner’s debt-ceiling bill in February 2014.
What’s more, think about how regularly Boehner is pushed around. He didn’t want to initiate a debt-ceiling crisis, but his members didn’t give him much of a choice. The Speaker didn’t want to hold several dozen ACA repeal votes, but his members called the shots on this, too.
Four years after taking hold of the Speaker’s gavel, Boehner has no legislative accomplishments and has developed a reputation as the weakest Speaker in modern times.
The surprise isn’t that Boehner calls his members “knuckleheads”; the surprise is that he doesn’t use stronger language in public.
By: Steve Benen, The Maddow Blog, September 17, 2014
“Will The House GOP Stop The War on ISIS?”: If You Hamper The War Effort Of One Side, You Automatically Help That Of The Other
So here, with Congress now trying to figure out what to do about President Obama’s request for funding for the Syrian rebels, we have a glimpse, as rare in its way as an eclipse or a meteor shower, of two Republican pathologies colliding head-on. The first is their biological urge to oppose Obama on all matters. The second is the House Republicans’ chronic eleventh-hour melodramatics about keeping the government funded every September. I could throw in a third—John McCain’s ever-mounting and ever-more-obvious personal bitterness toward Obama—but we’ll lay him aside for today and focus on this joining of the two pathologies, which in the worst-case scenario threatens to derail Obama’s anti-ISIS campaign before it even starts.
Fast background: Congress has to pass a continuing resolution by September 30 or we’ll have a government shutdown again. Actually, in practical terms, it has to pass it within the next few days, because the Jewish holidays are coming and Congress is going on recess so members can go back home and campaign.
In an election year, no one on the GOP side wants to risk a government shutdown (check that—Ted Cruz still kind of does!). The two parties are mostly arguing about the Export-Import Bank, the newest piece of coal for the tea party fire, but that’s the kind of thing they usually agree at the last minute to extend for another six months.
But that was the pre-ISIS state of play. Then we all saw the beheading videos, and fighting the Islamic State became a matter of urgency. Obama had asked Congress for $500 million in aid to the Syrian rebels back in June, but Congress, in its laconic, congressional way, was originally going to wait until next year to get around to that. But now the administration wants that $500 million—which is actually part of a larger $2 billion request that would include other money for operations in Iraq and Ukraine—to be passed now. And it wants it included in the “CR,” as they call it.
As you probably know, the House Republicans met Thursday morning in the aftermath of Obama’s speech to figure out how to proceed. As you probably also know, they didn’t figure it out. Some support Obama’s request—John Boehner does, and the relevant committee chairmen. Others, of course, don’t trust Obama. Some want to keep the Syria money in the CR. Others want to pry it out and have two votes, one on government funding and one on the Syria dough.
What would be the point of this? There is no point. Long Island Republican Peter King said something in Politico about how “it sends a stronger message” if it’s a separate vote, which is nonsense. Can you picture Bashar al-Assad sitting in Damascus talking with a top aide and saying, “Well, I don’t think $500 million is a serious amount of money,” and the aide says, “Gee, boss, I don’t know, I mean, they passed it on a separate vote”?
Please. The only reason to have a separate vote is to diddle the White House around. “Assert congressional prerogative” is the more euphemistic way to put it, but I can guarantee you that if President Romney were asking for this money, the only thing Republicans would be debating would be how many times they could each vote yea. Similarly, the shocking demand among some Republicans for greater action—for ground troops, even—is equally hypocritical. If Obama had proposed ground troops, they’d be hyperventilating about how scandalous it was of him to want to send our troops into harm’s way. They’re just looking for a hook—the handiest excuse to oppose Obama that they can find.
Obviously, passing the $500 million in the quickest way possible is what sends the strongest “message,” as if anyone even cares about such messages. What matters is that the money gets authorized. If the House Republicans pull it out of the resolution and make it a free-standing vote that will happen later, then all that accomplishes is that it gives talk-radio land and the conservative Twittersphere a few days to badger Republicans about casting a pro-Obama vote (and right before an election). And if that happens, and the right finds some excuse to work itself into a lather over this, Boehner may just decide that the easiest thing is to send them home without voting on Syria at all.
In one of his more famous essays, “Pacifism and the War,” George Orwell wrote that pacifism “is objectively pro-fascist. This is elementary common sense. If you hamper the war effort of one side you automatically help that of the other.” Orwell was writing of course about World War II, which I concede this is not (although I submit that it would be nice to see similar rhetorical restraint from the Republicans, who never tire of invoking Munich when they’re harping on Obama for not being tough enough). But if it isn’t World War II, neither is it the last Iraq War, which was completely unprovoked and based on lies. ISIS has killed Americans, and its threat to the region is clear and obvious. The Islamic State is evil by any measure. House Republicans may not trust the president and may prefer to see all this done differently. But without going as far as Orwell did (he later walked back the essay, after all) we can fairly ask if they want to have done nothing to check the Islamic State’s march.
I actually don’t think it will come to that. Even so, if I were a moderate Syrian Sunni, I wouldn’t be putting in orders for any tactical ballistic missiles just yet.
By: Michael Tomasky, The Daily Beast, September 12, 2014
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