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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

November 2, 2014 Posted by | House Republicans, John Boehner | , , , , , , | Leave a comment

“It’s Your Money”: Speaker Boehner’s Lawyer Is Charging The American Taxpayer $500 An Hour To Sue Obama

Last January, a Washington attorney named David Rivkin co-authored an article in Politico Magazine that laid out a legal theory that Speaker John Boehner (R-OH) now plans to use to sue President Obama because the president is not implementing Obamacare fast enough. Yet, as ThinkProgress laid out shortly after Boehner announced that he would file the lawsuit, Rivkin’s legal theory rests upon “a glaring misrepresentation of a recent Supreme Court decision that undermines much of the basis for this lawsuit.

Nevertheless, Boehner decided to hire Rivkin to represent the GOP-led House in its suit against the president. Rivkin’s price? $500 an hour, all charged to the American taxpayer.

The contract caps Rivkin’s fees at a total of $350,000, although, if past is prologue, this cap will rise quickly. During the litigation challenging the Defense of Marriage Act, Boehner hired former Solicitor General Paul Clement to defend anti-gay discrimination at a fee of $520 per hour. Although an early iteration of Clement’s contract capped his total fees at $500,000, the total cost of Boehner’s legal services rose to $2.3 million. Clement’s legal fees were also charged to the American taxpayer.

However much money Rivkin ultimately collects from the American people, he is unlikely to win his lawsuit if the judges who consider it follow existing law. As a general rule, a plaintiff bringing a lawsuit must have actually been injured in some way by the person they are suing. Neither Boehner nor any other member of Congress, however, has been injured by President Obama’s decision to delay implementation of the provision of the Affordable Care Act at issue in this case. Additionally, in a 1997 case called Raines v. Byrd, the Supreme Court explained that suits brought by members of Congress alleging that their institutional rights as lawmakers have been injured are highly discouraged.

Nevertheless, it’s worth noting that the Roberts Court has shown a willingness to abandon established law when Obamacare is involved, so there is no guarantee that Rivkin will lose.

 

By: Ian Millhiser, Think Progress, August 25, 2014

August 28, 2014 Posted by | House Republicans, John Boehner, Taxpayers | , , , , , , , | Leave a comment

“Perry Case Complicates Boehner’s Lawsuit”: Republicans Arguing One Thing For Perry, And The Exact Opposite For Obama

The indictment of Governor Rick Perry of Texas and his subsequent court case are about to complicate things politically for John Boehner. No matter the actual outcome of Perry’s case, the arguments made by Perry and his supporters are going to provide an easy equivalence with Boehner’s plans to sue President Obama — an equivalence that would not have existed had Perry not been indicted.

Perry is making the claim that the entire thing is just a partisan witchhunt, driven by out-of-control Democrats in the liberal enclave of Austin. He may succeed in convincing the public of this — and it remains to be seen whether this will help or hurt Perry among Republican primary voters in the upcoming presidential contest. So far, he has signaled that he’s going to wear it as a Republican badge of honor — standing up to liberals trying to tear him down in the courts. Here is Perry’s lawyer, summing up this defense:

The facts of this case conclude that the governor’s veto was lawful, appropriate and well within the authority of the office of the governor. Today’s action, which violates the separation of powers outlined in the Texas Constitution, is nothing more than an effort to weaken the constitutional authority granted to the office of Texas governor, and sets a dangerous precedent by allowing a grand jury to punish the exercise of a lawful and constitutional authority afforded to the Texas governor.

He is arguing that the voters entrusted Perry with executive powers, which Perry then faithfully exercised, and that the case against him is nothing more than Democrats fighting a partisan battle that they already lost at the ballot box.

Now, I should explicitly point out that I have no idea what the actual facts are and until a jury hears the case, it is impossible to know whether the indictment was partisan overreach or not. I’m not going to argue the facts of the case here, to put this another way — we’ll all have plenty of time to do so as the case makes its way through the legal system in the months to come. I’m instead focusing only on the politics of the case.

Perry and his defenders are going to be making the case for strong executive power, which (they will say) is supposed to be executed without the interference of the courts. That’s Perry’s argument in a nutshell, and so far he has not been shy about strongly making this argument himself.

But this is going to become a major political stumbling block for House Republicans when John Boehner actually files his own lawsuit against President Obama. Because they’ll be arguing that, in Texas, the executive should be allowed to execute his powers without interference from the courts; while at the same time arguing that on the national level the courts should indeed interfere with the executive attempting to exercise his powers. The parallels are going to be obvious to all, in fact.

Again, the facts of both cases won’t even really enter into the discussion much, because while one party thinks the Texas case is weak, the other party is going to say the same thing about Boehner’s case. The real argument, in both cases, is: Should this be the way politics works? At what point should political arguments be handled by the justice system? Perry’s case is all about politics from beginning to end. Boehner’s case will be too.

Republicans were counting on Boehner’s case to whip their base voters into a frenzy, right before the midterm elections. They were all set to pronounce the righteousness of their position, using the justice system to rein in an otherwise-unchecked president. That’s going to be a lot tougher sell now, especially since it is scheduled to happen after weeks and weeks of discussing the merits of the case against Perry. Republicans will be denouncing using the justice system against an executive in purely partisan fashion, and then they’ll have to start arguing that John Boehner has every right to use the justice system against an executive in purely partisan fashion. The turnabout will be so dramatic it might induce whiplash.

To the casual observer of politics, the two cases are going to sound an awful lot alike. Some Democrats, perhaps realizing this, have already expressed doubts about the case against Perry. The woman at the heart of the case isn’t exactly a “poster child” character, since video exists of her drunk driving arrest, which doesn’t exactly inspire confidence in her personality. To defend the case against Perry means also having to defend her, which is why some Democrats are already backing away from this one.

But Republicans won’t be able to back away so easily from Boehner’s case. This isn’t some squabble in one faraway state; this is national politics. The speaker of the House will be suing the president of the country, which can’t be written off as some sort of parochial affair. House Republicans are already on the record, having voted to proceed with the lawsuit right before the August break. For some Republicans, the lawsuit won’t even go far enough — Boehner is already walking a tightrope with Republicans who want to see him impeach Obama. Boehner won’t be able to back down, to put this another way.

But now the argument for suing Obama is going to get more complicated than anyone could have foreseen. Perry’s case is going to prepare the ground with the public, and provide Democrats with an easy response: “How is this case any different than Perry’s?” Republicans are going to be arguing one thing for Perry, and the exact opposite for Obama. This is going to become more and more obvious to all concerned, in fact.

The best Boehner can hope for, at this point, is that Perry’s case moves very, very slowly. Maybe everyone will forget about it if there is no breaking news from Austin in the next month or so. My guess, however, is that Democrats will be more than ready to remind everyone of the similarities between the two cases, and how Republicans are taking positions in the two which are completely contradictory. The Perry case — again, no matter how it turns out — has certainly made it a lot more politically complicated for Boehner to move forward with his lawsuit.

 

By: Chris Weigant, The Huffington Post Blog, August 20, 2014

 

August 20, 2014 Posted by | House Republicans, John Boehner, Rick Perry | , , , , | Leave a comment

“Watching A Bad Idea Backfire”: Republican Antics Are Killing The GOP Among Swing Voters

For the last several weeks, the more congressional Republicans talked about suing, and possibly impeaching, President Obama, the more Democrats smiled. Aaron Blake explained why: the Republican antics are “killing the GOP among swing voters.”

The McClatchy-Marist College poll shows political moderates oppose the impeachment of Obama 79 percent to 15 percent. That’s a stunning margin. And not only that, if the House GOP did initiate impeachment proceedings, moderates say it would turn them off so much that they would be pulled toward the Democrats. By 49-27, moderates say impeachment would make them more likely to vote Democratic than Republican in 2014.

But it’s not just impeachment. As we’ve noted before, the House GOP’s lawsuit against Obama’s use of executive orders is turning out to be a political loser too. In fact, it’s not much more popular than impeachment.

Americans say 58 percent to 34 percent that the GOP should not sue Obama, and moderates agree 67-22. Moderates also say by a 50-25 margin that the lawsuit makes them more likely to back Democrats in 2014.

Oops.

Congressional Republicans, by targeting the president so aggressively, probably assumed this would motivate the GOP base, if nothing else, but even that isn’t entirely going according to plan. Greg Sargent, looking at the same data, explained this morning, “The poll also finds that 88 percent of Democrats say the lawsuit would make them more likely to vote for their side, while 78 percent of Republicans say the same.it…. [T]his effort may scratch the hard-right GOP base’s impeachment itch, but it could end up motivating Democrats more.”

And yet, GOP officeholders and candidates still can’t help themselves.

Even as Republican leaders try to downplay their anti-Obama schemes, and dismiss impeachment rhetoric as a Democratic “scam,” the message doesn’t seem to have reached everyone in the party. Just yesterday, we heard more impeachment talk from a House GOP candidate

Matthew Corey, the Republican challenging Rep. John Larson (D-CT) in Connecticut, said Saturday that he believes President Obama should be impeached, according to the Bristol Press. Corey said that Obama has violated the constitutional provision that gives Congress “all legislative powers” and said the president has been “breaking the oath of office.” He also said he supported the House’s efforts to sue Obama for choosing “what parts of a law he wants to enforce.”

… and a current House GOP lawmaker.

Rep. Steve King called into Glenn Beck’s radio program this morning to discuss his confrontation last week with advocates of immigration reform. During the interview, King told Beck that it is vitally important for House Republicans to rein in President Obama for the remainder of his term so that he cannot destroy America before this nation can elect a new president “whom God will use to restore the soul of America.”

Saying that Republicans cannot “unilaterally disarm” by taking the threat of impeachment off the table, King declared that the GOP must work to “restrain this president so that he doesn’t do serious destructive damage to our constitution” in order to allow this nation to “limp our way through his terms of office.”

This sort of talk has practically become a daily occurrence. If the McClatchy-Marist data is correct, Democrats are likely hoping it doesn’t stop anytime soon.

 

By: Steve Benen, The Maddow Blog, August 13, 2014

August 14, 2014 Posted by | GOP, House Republicans, Impeachment | , , , , , , | Leave a comment

   

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