“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
“An Intra-Republican Bloodbath”: The 2016 Presidential Race And The Coming Death Struggle Within The GOP
There’s an interesting article in The Hill today about some early 2016 jockeying, and it shines a light on just how important this presidential campaign will be to the ongoing struggle within the GOP. Once next month’s elections are over, things are going to get very intense. Here’s an excerpt:
For the past year, Speaker John Boehner (R-Ohio) has been wooing his longtime friend Jeb Bush to jump into the 2016 presidential race, even as he has shunned potential Tea Party rivals like Sens. Ted Cruz of Texas and Rand Paul of Kentucky.
Boehner stepped up his lobbying efforts this week, singing the former Florida governor’s praises in a pair of media interviews.
The Speaker’s preference for yet another Bush White House run is partly political, partly personal. He sees Bush as undeniably the strongest, most viable candidate who could pull the party together after a bruising primary and take on a formidable Hillary Clinton, sources said. And the two men are aligned politically, hailing from the same centrist strand of the GOP.
The next presidential campaign will shape how we all understand the eight-year intra-Republican bloodbath that will have lasted through the Obama presidency, in a way that the 2012 election didn’t. While most of the candidates in 2012 spent plenty of time pandering to the Tea Party, none of them were birthed by the movement. All of the real contenders had been around for a long time, some for decades.
In contrast, 2016 will be the first presidential election in which some of the GOP candidates rose to prominence after Barack Obama’s election. Three potential candidates (Rand Paul, Marco Rubio, and Scott Walker) first got elected to their current positions during the revolution of 2010, and one other (Ted Cruz) two years later. Even if only Cruz among them is still considered a 100 percent pure Tea Partier, this is going to be a primary race defined by a generational split between those who rode the Tea Party to prominence and those who came to public attention before.
If you’re John Boehner, somebody like Ted Cruz getting the Republican nomination would be a terrible rebuke, not just because Cruz has personally been such a pain in Boehner’s behind (constantly encouraging conservative House members to turn against the Speaker), but also because of what it would say about this period in Republican history. If a real Tea Partier were elected, Boehner’s entire Speakership would look like nothing more than roadkill along the way — the “GOP establishment” had done nothing but resist the inevitable, by trying to keep the Tea Party in check, for too long. On the other hand, someone like Jeb Bush becoming president would mean that all the aggravation Boehner endured wasn’t futile; he held the barbarians back, prevented them from ruining the GOP, and the party came through on the other side by taking back the White House.
On the other hand, nothing would be worse for Boehner and other establishment figures than somebody like Bush getting the GOP nomination but then losing to Hillary Clinton — and short of a Tea Partier winning the presidency, nothing would be better for the base conservatives. Those conservatives could say: Look, we’ve tried nominating old, familiar, establishment Republicans three times in a row now, and all it got us was President Obama and now President Clinton. We can’t repeat the same mistake in 2020. It’ll be an awfully compelling argument to those in the party, even if the counter-argument — that nominating someone like Cruz would be a complete disaster — might be true.
It’s possible that a candidate who successfully bridges the two sides could emerge (for instance, Indiana governor Mike Pence could be that candidate). And the establishment folks are going to try to play down the idea that there’s any “battle for the soul of the Republican party” going on at all, since that’s a battle they aren’t sure they can win. But the battle is real, and its outcome, at least for the next decade or two, could be determined by what kind of Republican gets the 2016 nomination, whether he wins or loses, and more broadly, what kind of GOP we have in coming years.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, October 2, 2014
“A Weighty Decision”: Boehner Ready To Punt On ISIS Vote Until 2015
It was Aug. 8, seven weeks ago tomorrow, that President Obama launched U.S. airstrikes on Islamic State targets in Iraq. It was this week when the president expanded the mission to include strikes on ISIS targets in Syria.
And it was last week when Congress decided to give itself another 54 days off, rather than extend legal authority to the Obama administration to conduct this military offensive.
Most of us have been working under the assumption that Congress had one of two options: (1) debate the use of force during Congress’ post-election, lame-duck session; or (2) return to work before the election to do its duty and meet its constitutional obligations.
But in a new interview with Carl Hulse, House Speaker John Boehner (R-Ohio) points to Door #3 – also known as See You Next Year.
[Boehner is increasingly convinced that Congress must hold a full debate on granting President Obama the authority to use military force against terrorists…. But Mr. Boehner believes a post-election, lame-duck session is the wrong time for such a weighty decision.
“Doing this with a whole group of members who are on their way out the door, I don’t think that is the right way to handle this,” he said.
Mr. Boehner, who is open to a more expansive military campaign to destroy the Islamic State, thinks lawmakers should take up the issue after the new Congress convenes in January. At that time, he said, President Obama should come forward with a proposal for consideration.
Greg Sargent noted in response, “You have to love the idea that this is too ‘weighty’ a decision to make during the lame duck session, but not ‘weighty’ enough to vote on before the escalation actually launched, let alone before an election in which voters deserve to know where lawmakers stand on a matter of such great consequence.”
Indeed, it’s difficult to think of a defense for Boehner’s new posture.
Not to put too fine a point on this, but Americans elect members to specific terms, during which they’re expected to meet their obligations. The key word in “lame-duck session” is “session” – these elected federal lawmakers have jobs to do, and the fact that they’re nearing the end of their term doesn’t negate the fact that there’s important work to do.
Boehner makes it sound as if Congress is high school, and everyone can just coast for the last couple of weeks after final exams. That’s crazy – the United States is engaged in combat operations and the people’s elected representatives aren’t supposed to just take a pass on the crisis for the sake of convenience.
As for the notion that the White House “should come forward with a proposal,” I’d remind the Speaker that Congress is a co-equal branch of government. Waiting for the executive branch to write a draft resolution for the legislative branch isn’t a requirement – but Congress approving wars is.
As we talked about yesterday, Americans can take every Republican anti-Obama argument of late – about separation of powers, about co-equal branches of government, about the importance of institutional checks and balances – and throw them right out the window, confident in the knowledge that the GOP didn’t mean a word of it. For all the chatter about the president being an out-of-control, lawless tyrant, here’s an instance in which Obama really is acting without any congressional authority, only to find congressional leaders saying, “No big deal. We’ll think about doing something in a few months, maybe.”
Fair-minded observers can debate the propriety of the president’s actions, but for over two centuries, presidents have gone as far as Congress will let them. Especially in times of war, every Commander in Chief has sought as much power and authority as he can muster.
It’s up to Congress – filled with members who spent the summer complaining about Obama golfing instead of working – to meet its responsibilities. This Congress isn’t even going through the motions. Lawmakers aren’t even keeping up appearances. They’re not even trying.
I thought this Congress couldn’t get any worse. I stand corrected.
By: Steve Benen, The Maddow Blog, September 25, 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
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