“If Boehner Sues Obama, John Roberts Wins”: Enhancing Judicial Power At The Expense Of The Elected Branches
The story on House Speaker John Boehner’s lawsuit against President Barack Obama is pretty simple: regardless of whether the administration overstepped, what’s at stake is whether the courts are being empowered at the expense of the elected branches of government.
For starters, there’s zero evidence that Obama has been unusual in his use of executive powers. If he’s overdone it, then all the recent presidents have done so, too. The idea that he’s some sort of tyrant who acts differently than other modern presidents is nonsense.
In fact, It’s perfectly normal for presidents and executive branch departments and agencies to make broad interpretations of law that look a lot like legislating. It’s how the system works, and pretty much how it always worked. Thus Richard Neustadt’s famous claim that the system isn’t “separation of powers,” but separated institutions sharing powers.
Nonetheless, there are rules constraining how laws may be interpreted, and it is possible that in specific instances, the administration may have acted beyond what the law allows.
Indeed, experts have made the case that this kind of overreach occurred with the delayed implementation of the employer mandate in the Affordable Care Act (which, apparently, is going to be central to the House Republicans’ lawsuit), though other experts disagree.
In any case, it would be unprecedented, and in fact would constitute a significant change to the constitutional system, if the courts allowed Congress to sue the president over the ACA delay.
The technical issue is “standing.” For the courts to consider a lawsuit, the person or group bringing the suit has to show they were harmed in some direct way. So, for example, in the recent recess appointment case, Noel Canning Corp. was able to show that it had directly been harmed by an action taken by members of the National Labor Relations Board who had been recess-appointed. Generally, the courts have ruled (Vox has a good explainer on this) that Congress isn’t eligible to sue the president just because it doesn’t like what he’s done.
What Boehner is claiming now is that Congress, or the House of Representatives in this case, should be able to sue the president for not following the law if no one else would be able to do so.
If that succeeds, however, the big winner in the long run wouldn’t be Congress. It would be the courts.
By the logic of Boehner’s own action (despite what he says), this isn’t about a tyrannical president refusing to obey the law. If House Republicans believed that Obama was an out-of-control dictator, then they couldn’t also believe that a court ruling would be sufficient to constrain him.
What’s actually happening is that the House doesn’t interpret the law in the same way as the president, and the question is how to resolve the variance. Normally, each branch has an opportunity to interpret the law (those separated institutions sharing powers again), but doctrines such as standing limit the courts’ ability to intervene.
If, however, they can intervene whenever a house of Congress is unhappy, then the courts get a a much more active role in determining what the laws say. And why just a house of Congress? What if the president sued Congress, for example, if it failed in its obligation to produce appropriations bills on time? Instead of a government shutdown, would we get an injunction and then a judicial act of appropriations, with someone appointed by Bill Clinton or Ronald Reagan making 302(b) allocations by judicial fiat? Or perhaps we’d wind up with individual senators jurisdiction shopping, looking for a friendly judge to overturn some fight they lost in committee or on the Senate floor. Those kinds of setbacks are common for senators and executive branch departments; the only thing that prevents the losers, or whole chambers that lost fights in conference, from directly appealing to the courts is that the courts have a doctrine against intervening.
So what can Congress do? If the problem were simply a president who failed to follow the law, then the only real choices would be either to live with it, or impeachment and conviction. But if the problem is merely that the president interprets a law in a way that Congress doesn’t like, then the obvious remedy, as presidency scholar Andrew Rudalevige said recently, is “for Congress to change the law to remove presidential discretion” (I argue the same here).
So put aside the question of whether the administration improperly interpreted the law (it might have). Put aside, too, the silliness of House Republicans attempting to force the president to impose a policy, the employer mandate, which no Republican actually wants to enforce. And put aside the reality that by the time this lawsuit is decided it may well be moot, at least if the mandate takes effect as currently planned. This is about enhancing judicial power at the expense of the elected branches, and it’s a very bad idea.
By: Jonathan Bernstein, Ten Miles Square, The Washington Monthly, July 12, 2014
“The Hill On Which He’ll Die”: John Boehner’s Lawsuit Is A Political Dud
On Thursday evening, House Speaker John Boehner (R-OH) finally revealed the details of his long-awaited plan to sue President Barack Obama, and they come as something of a surprise. In essence, the Speaker is asking the House to sue the president for not implementing Obamacare quickly enough.
“Today we’re releasing a draft resolution that will authorize the House to file suit over the way President Obama unilaterally changed the employer mandate,” Boehner said in a statement. “In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it. That’s not the way our system of government was designed to work. No president should have the power to make laws on his or her own.”
Legally, Boehner’s plan is on shaky ground. While the House has never institutionally sued a president for not enforcing the law, several individual members of Congress have tried, and almost all of their cases were dismissed for lack of standing. Even if a court agrees to hear the case, it’s not at all clear that President Obama broke the law by delaying the implementation of the employer mandate, giving employers with more than 50 full-time employees an extra year to offer their workers health insurance. And even if the House wins its suit, its prize would likely be the immediate implementation of a policy which Republicans claim to hate.
Politically, Boehner’s plan seems destined to fall flat. It promises to undermine Republicans’ own talking points, while potentially pushing the far right even further towards open revolt against his authority.
When Speaker Boehner announced his intention to sue the president, he laid out a broad range of areas in which President Obama had supposedly acted illegally.
“On one matter after another during his presidency, President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce – at times even boasting about his willingness to do it, as if daring the America people to stop him,” Boehner wrote. “On matters ranging from health care and energy to foreign policy and education, President Obama has repeatedly run an end-around on the American people and their elected legislators, straining the boundaries of the solemn oath he took on Inauguration Day.”
But when it came time to pick an executive action for the lawsuit, he settled on one that Republicans themselves supported. House Republicans wanted to delay the employer mandate, and they voted to do so in July 2013. And when President Obama delayed it unilaterally, Republicans didn’t complain that he abused his power. Instead, they urged him to do it again.
“Is it fair for the president of the United States to give American businesses an exemption from his health care law’s mandate without giving the same exemption to the rest of America? Hell no, it’s not fair,” Boehner said at the time. “We should be thinking about giving the rest of America the same exemption that Obama last week gave businesses.”
Now House Republicans must explain why, one year ago, they were encouraging the president to “run an end-around” on them.
They also must explain what happened to all of the other examples of President Obama’s iron-fisted tyranny. As The New Republic’s Brian Beutler points out, Republicans — led by Boehner — have literally spent years accusing President Obama of recklessly breaking the law when it suits his needs. The fact that the employer-mandate delay from one year ago is the only example that they could come up with badly undermines that talking point.
Finally, by picking the employer mandate as the hill on which he’ll die, Boehner may have created an even greater political problem for himself. The Speaker’s decision to sue the president has been widely interpreted as a tactic to placate right-wing Republicans who would rather see Boehner attempt to impeach Obama. Whether he’s successful remains to be seen. Boehner’s lawsuit plan has certainly not changed the minds of those Republicans who have already called for Obama to be removed from office, and it seems very plausible that it won’t leave the congressmen who have accused Obama of breaking the law in other areas — such as immigration reform — satisfied. If one of them chooses to ignore Boehner’s wishes and introduces a resolution of impeachment, it would create a crisis for Boehner’s leadership — and end the Republican Party’s hopes of keeping its base under control through the midterms.
By: Henry Decker, The National Memo, July 11,2014
“The Rock Is Beckoning”: An Open Letter To Sarah Palin
Dear Ms. Palin:
I feel sorry for you. I truly do. It must be terribly frustrating to be so irrelevant. To have your rabble-rousing, race-baiting drivel limited to Fox’s Sean Hannity Show in your desperate, pathetic, never-ending quest for attention. You are, put simply, one of the most ignorant, misogynistic, homophobic, xenophobic, hate-filled, polarizing individuals ever to hit the national political stage (thank you John McCain).
Your new video, in which you call for President Obama’s impeachment because of his “lawlessness,” is an unconscionable, unpatriotic piece of garbage. The level of disrespect, condescension, sarcasm and reality-butchering is astounding. To say that your fake-cutesy, sing-songy, snarky delivery is vomitous would be a colossal understatement. You’re also quite tone-deaf, comparing your suffering over his presidency to that of a “battered wife.” There really are no groups you won’t offend, are there?
Impeach Obama? For what, doing his job amid relentless Republican obstructionism and intransigence? For trying to keep government operating efficiently? For growing the economy? For creating millions of new jobs? For caring about 8-year-olds crossing the Mexican border alone? For wanting to find a practical, compassion solution to the immigration issue? For providing everyone health care? For trying to narrow the income inequality gap? For protecting women’s rights? For allowing people who love each other to marry?
That you, like that other heartless conservative Dick Cheney, even have a perch from which to still spew your venomous hate-speak, is unfortunate. No one, not even the Fox faithful, should be subjected to your incendiary bile. You’re a failed, disgraced politician who, despite becoming a humiliating punchline following the 2008 election, refuses to crawl back under your rock. Trust me: no one except Hannity, a few horny white Republican dudes and a smattering of their intellectually bankrupt women are interested in what you have to say.
Ssshhhh….hear that sound? It’s the rock beckoning….
By: Andy Ostroy, The Huffington Post Blog, July 10, 2014
“This President Should Be Able To Do Absolutely Nothing”: In Dramatic Pointless Gesture, Boehner To Sue Obama
Pretty much since the moment Barack Obama finished speaking the oath of office in January 2009, Republicans have been charging that he was abusing his power, exceeding his authority and acting like a tyrant. You might remember that for a time in those early days, conservatives (led by Glenn Beck) were obsessed with the idea that Obama had appointed a group of “czars” who were wielding unaccountable power to implement all sorts of nefarious schemes. They were unable to say how a “czar” differed from “a person who works in the White House,” and that particular iteration of their outrage faded, but the underlying suspicion only grew. In the years since, the list of alleged usurpations of authority has grown daily, the charge that Obama is “lawless” becoming a constant.
At its root is the idea that Barack Obama’s presidency is inherently illegitimate, and whatever he does in that office must be illegal, or nearly so. This often translates into complaints about process, so that even when they lose, Republicans charge that the game was rigged. For instance, conservatives have said thousands of times that the Affordable Care Act, despite being probably the most exhaustively debated piece of legislation in decades, was “rammed through” Congress before anybody realized what was happening. Actions that all presidents undertake, like making recess appointments, signing executive orders, or simply having agencies write regulations, become yet more evidence of Obama’s horrific authoritarian rule.
It’s safe to say that many if not most Republicans would be eager to impeach Obama were such a move not a guaranteed political disaster for them. So John Boehner has decided to pursue a kind of impeachment-lite, announcing that the House of Representatives will be suing the president for abusing his power. “The Constitution makes it clear that the president’s job is to faithfully execute the law,” he said. “In my view, the president has not faithfully executed the law.” It’s impossible to tell at this point whether the suit has any merit, because Boehner didn’t actually cite any specific transgressions the suit will allege.
But my guess is that the suit will throw in every process complaint the Republicans have had over the last five years, because it’s mostly about Boehner’s right flank, both in Congress and in the Republican electorate. Even if the suit gets thrown out of court, Boehner will still be able to say to the eternally angry members to his right, “Hey, I’m the guy who sued Obama! I hate him as much as you do!”
It’s irresistible to charge Republicans with hypocrisy, especially given the fact that they were unconcerned when the Bush administration pushed so vigorously at the limits of presidential power. Bush and his staff regularly ignored laws they preferred not to follow, often with the thinnest of justifications, whether it was claiming executive privilege to ignore congressional subpoenas or issuing 1,200 signing statements declaring the president’s intention to disregard certain parts of duly passed laws. (They pushed the limits of vice presidential power, too—Dick Cheney famously argued that since the vice president is also president of the Senate, he was a member of both the executive and legislative branches, yet actually a member of neither and thus not subject to either’s legal constraints. Seriously, he actually believed that.)
Needless to say, at the time Republicans were perfectly fine with these moves, because when the Bush administration was doing these things, it was in support of policies they favored. And that’s how it goes: Process complaints are almost always a cover for substantive disagreement. A backroom deal made to pass a piece of legislation you agree with is just how the sausage gets made; a deal made for a piece of legislation you disagree with is evidence of deep corruption. A filibuster of a bill you oppose is a principled use of established procedures; a filibuster of a bill you favor is cynical obstructionism. And it’s a little rich to hear congressional Republicans wail that Obama has subverted their will, when their will is that this president should be able to do absolutely nothing.
To be clear, I’m not saying that it’s impossible that there could be any merit to whatever claims Boehner and his colleagues will make. There may have been situations in which Obama pushed presidential prerogatives beyond what the law and the Constitution allow, which the courts will decide. But this question comes up with every president, both because they all want to pursue their goals and try to find every means at their disposal to do so, and because the limits of that power are somewhat vague and complex. As it happens, in numeric terms, Obama has been far more restrained than his predecessor; he has issued fewer executive orders than other recent presidents, and has also used signing statements only occasionally (although recently he cited one of his signing statements as justification for failing to notify Congress 30 days before the release of Taliban prisoners in exchange for Bowe Bergdahl).
The numbers aren’t really the point, though; the question is whether Obama actually ever exceeded his authority. This lawsuit may help us understand whether that occurred, and the result might set a useful precedent to guide future presidents. But I doubt it. More likely, it’ll be an intensely partisan document whose purpose is to shake a fist at the president Republicans so despise, and it’ll get tossed out of court and thrown in the dustbin where it belongs, one more futile, angry gesture from an opposition that has lost the ability to offer anything else.
By: Paul Waldman, Contributing Editor, The American Prospect, June 26, 2014
“Attack First, Get The Facts Never”: Republicans Couldn’t Wait To Go On The Attack After Bowe Bergdahl’s Release
Bowe Bergdahl. How long is this going to continue?
Cable chatter, talking heads with little to talk about, Republican orchestrated guests with (surprise!) more Obama attacks, facts be damned.
It reminds me of the disappearance of former congressional intern Chandra Levy, where the cable guys couldn’t get enough but didn’t know enough, or the recent 24/7 coverage of a lost airliner where all the reporting was that there was nothing to report.
Republicans called for action to get Bergdahl released and criticized Obama for not doing enough, then, when he was released, condemned the release. Here are some examples:
Sarah Palin before: “Todd and I are praying for Private First Class Bowe Bergdahl, his family, and all of his fellow soldiers who are putting their lives on the line to defend our freedom and protect democracy abroad,”
Sarah Palin after the release: “No, Mr. President, a soldier expressing horrid anti-American beliefs – even boldly putting them in writing and unabashedly firing off his messages while in uniform, just three days before he left his unit on foot – is not ‘honorable service.’ Unless that is your standard.”
Former Rep. Alan West, R-Fla., before: “Then there is Army SGT Bowe Bergdahl still held by the Islamic terrorist Haqqani network, probably in Pakistan, in the same place where Osama Bin Laden was hiding. This past POW/MIA national day of recognition, Defense Secretary Chuck Hagel reiterated a pledge to secure the young Army NCO being held captive, but have there been any actions? Any time, attention, or even mention from the Commander-in-Chief? Nah, no camera highlights in it for him.”
Alan West after the release: “Ladies and gentlemen, I submit that Barack Hussein Obama’s unilateral negotiations with terrorists and the ensuing release of their key leadership without consult — mandated by law — with the U.S. Congress represents high crimes and misdemeanors, an impeachable offense.”
There are plenty more examples of the before/after effect from Sens. John McCain, R-Ariz., Kelly Ayotte, R-N.H., and James Inhofe, R-Okla., to name a few.
Some Republicans put up tweets of praise, then withdrew them, but Rep. Lee Terry, R-Neb., takes the cake with this statement which was later deleted from his website:
“A grateful nation welcomes the news of the return of Sgt. Bowe Bergdahl. I have the pleasure of regularly speaking with our nation’s active duty military and veterans and I know that there is nothing more solemn than the pledge to never leave one of their own behind on the field of battle.
“Sgt. Bergdahl is a national hero. It’s my hope that once he ultimately retires from active duty service, implementation of reforms to our nation’s VA hospitals are made so that he will have access to the long-term care he has rightfully earned from the horrors he endured.”
OK, fine, this is politics. This is gladiator cable TV. This is a “hot” story.
But, maybe, just maybe, we ought to let the military examine what we know, what we don’t know, what are rumors and what are facts. Maybe we ought to hear from Sgt. Bergdahl before attacking his family, his friends, anyone who ever knew him. Maybe we should not be so quick to judge and cast aspersions on all involved before we know more.
But that is not how the emotional vice that is our politics works – you sense an opening, go for the jugular, any jugular, even if there is collateral damage.
By: Peter Fenn, U. S.News and World Report, June 5, 2014
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