Suing the President

John Boehner and Barack Obama don’t like each other.  That seems apparent.  I don’t know, of course, how personal this is, or if it’s just political and professional.  I had a colleague at BYU who I just flat out disagreed with pretty much all the time on pretty much every issue our department confronted.  But when we weren’t squabbling in faculty meeting, we got along fine.  Our disagreements were entirely professional. When we were able to talk on neutral subjects–football, say–we got along really well.  At faculty parties, his wife and my wife became pals.  It may well be that President Obama and Speaker Boehner’s disagreements are like that; professional and political.  John Adams said really rude things about Thomas Jefferson, and Jefferson returned the favor.  But when they were both out of office, they re-established their friendship, and their correspondence is one of the glories of American letters. Maybe Obama/Boehner will have the same happy outcome.  But I’m rather inclined to doubt it.

Anyway, for weeks now, Speaker Boehner has been threatening to sue the President.  President Obama’s response has been, basically, ‘bring it.’  The President’s on the stump these days, making what sure seem like off-the-cuff speeches about how much he would love to work with Congress (read ‘the House’) on legislation, but that they don’t seem interested.  The Senate sent over a bi-partisan immigration bill months ago, and it would probably pass the House too, in a straight up-and-down vote.  But in an election year?  Immigration?  It’s a toxic issue for Republicans, who are much more afraid of Tea Party challenges to their right than they are of possible Democratic challengers in the general election.  So Speaker Boehner won’t call for a vote, and that means President Obama gets to make fun of him for it.  It’s all pretty amusing.

But not as slap-stick comical as this lawsuit malarkey.  The guys at the invaluable website have been all over this, with four separate (and very good) articles about it, looking at it from several angles.  Here’s Ezra Klein on the issue:

Consider what happens if Speaker John Boehner wins  his lawsuit against President Barack Obama: the court will order Obama to implement the Affordable Care Act’s employer mandate without further delay. Which, given that Obama only delayed the mandate until 2015 and court cases can take a long time to wind their way through the legal system, might mean the court will order Obama to do something he has already done.

What’s even odder about the suit is that Boehner hates Obamacare’s employer mandate. And the business groups that back Boehner hate Obamacare’s employer mandate. So Boehner is lifting heaven and earth to get the court to demand Obama more rapidly enforce a policy Boehner hates, that Boehner’s allies hate, and that Obama says he’s going to start enforcing in a few months anyway.

It’s as if Pat Riley was suing LeBron James to force him to begin playing for the Cleveland Cavaliers sooner.


Our friends on the Right insist that President Obama’s delay in implementing this so-called ’employer mandate’ is clearly and obviously unconstitutional.  Funny how they didn’t think so when President Bush unilaterally and without Congressional approval delayed the implementation of Medicare Part B.  George W. Bush did exactly what conservatives accuse Obama of doing; changing the specific requirements of a law. I don’t remember the howls of protest then.

And it’s the kind of thing the Constitution is very vague about.  The Constitution says Congress passes legislation.  The Executive branch executes those laws.  So, we have a law, requiring employers to provide insurance to their employees.  Because of feedback from the business community, President Obama decides to delay implementation of that provision by a year.  So is that a case in which the President is illegally re-writing a law?  Or is it a minor case of tweaking a deadline, in order to better execute the law?  The Constitution doesn’t clarify this point, and shouldn’t, for something that’s so obviously a gray area.  As the courts will certainly rule.

So why is Boehner doing it?  Why is he pursuing a lawsuit that he almost certainly won’t win, to implement a law that he loathes?  Ezra Klein, again over at Vox, thinks it’s an idiotic gambit legally, but quite brilliant politically.

See, conservatives really really really hate Obama.  I mean, frothing at the mouth, spittle emitting hatred.  There’s this thing called the internet; mostly consists of tubes or something, best I can understand it.  Go on Reddit or Facebook or something, and post  ‘boy, I think Obama is a really good President.’  It’s kind of entertaining, to see how angry people get.

So people like Sarah Palin–well, actually, Sarah Palin–have been calling for President Obama’s impeachment, because, I don’t know, Benghazi.  And their latest meme is that he’s lawless.  He’s trampling all over the Constitution!  He’s consciously destroying America!  Or something.  And Boehner, because he wants to keep being Speaker, says all that too.  So when Boehner talks about this ‘lawless criminal’ in the White House, exercising ‘king-like authority,’ he’s just echoing the rhetorical excesses of everyone on the Fox News right.

But the problem is, if in fact Obama is a lawless criminal, acting in a king-like disregard for Constitutional values, well, there’s a perfectly adequate Constitutional remedy for that: impeachment.  But Boehner doesn’t want to pursue impeachment.  First of all, he knows perfectly well that Obama hasn’t done anything impeachable.  Second, he knows how an irresponsible impeachment would backfire politically.  Right now, the President isn’t very popular; impeach him, and watch his numbers climb and his political capital grow.  It’s not even entirely clear that the House can impeach Obama.  Impeachment is a serious step, and Boehner has to know he can count on exactly zero votes from House Democrats on it, and there are enough Republican moderates to make it a very chancy proposition, especially, again, when Obama hasn’t done anything to build a bill of impeachment around.  And, of course, impeach and remove is a complete impossibility; Democrats control the Senate.

Hence, this ridiculous lawsuit.  It gives Boehner the space he needs to keep up the ferocious rhetorical attacks on Obama the Tea Party loves so much, without quite having to go so far as impeachment.  It’s smart-ish politically.  The only cost is that the President gets to keep making fun of him for it.  But that’s the key to Boehner’s speakership; speak loudly, and carry a tiny stick.  He’s certainly the most inept Speaker in US history, but being Speaker right now, is an impossible gig.  He’s really really bad at his job, but it’s impossible to imagine anyone else being better at it.

Of course, the House can always vote to repeal Obamacare again.  That always works. And isn’t that great?  They vote over and over to repeal the ACA, then file a lawsuit seeking to force Obama to . . . implement more quickly the ACA.  What a strange political world we inhabit.

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