The lawsuit rolls forward

July 31
Speaker John Boehner and President Obama in happier times -- talking about golf. (REUTERS/Joshua Roberts)
Speaker Boehner and President Obama in happier times — talking about golf. (Joshua Roberts/Reuters)

To no one’s surprise, the House of Representatives has voted to approve a resolution (H. Res 676) authorizing Speaker John Boehner to sue the president on its behalf. Following a party-line vote in the House Rules Committee on July 24, and a party-lineup of expert testimony at a long hearing on July 16, the floor vote made it a matched set: 225 Republicans voted “yes”, along with zero Democrats.

The discussion of H.Res 676, from the Rules Committee hearing on through the floor speeches (“debate” doesn’t quite work in this case) has revealed so many circularities that one can see why it keeps rolling forward.  House leaders stress that the process is not about impeachment: Speaker Boehner has said “we have no plans to impeach the president” and called this charge a “scam” aimed at raising campaign cash. Yet Boehner is up to at least three op-eds arguing the lawsuit is necessary to “defending the Constitution” (here, the Columbus Dispatch; here, CNN; here, USA Today). The rhetoric from the House centered on “treason,” “monarchy,” “tyranny,” “usurpation.”  Rep. Tom Rice declared that “Our freedom is in peril. We cannot stand by and watch the president shred our Constitution.”

If any of this is accurate, then impeachment is the appropriate Constitutional remedy available to Congress. On the other hand, Karl Rove attacked President Obama for “cynically suggesting a constitutional crisis in order to fatten the bank accounts of the… fundraising groups in order to try and energize Democratic turnout for the fall elections.” So perhaps there’s no constitutional crisis?

Maybe it’s a “political stunt” instead, as per Obama’s well-known characterization of the maneuver. But Rep. Rob Woodall said it was “incredibly frustrating… that we can call the defense of Congress a ‘political stunt.’”  The House Rules committee report concludes that “the evidence gathered…demonstrates that the President has failed on numerous occasions to fulfill his duty under Article II…. [This] threatens the very institution of the Congress.” That is a big deal, surely.

The authorized lawsuit, of course, covers little of the above in any case.  As it took legislative form, the “aggressive unilateralism” on “matters ranging from health care and energy to foreign policy and education” noted in Boehner’s June 25 memo to House members were boiled down to one such matter: the administration’s failure to implement the Affordable Care Act as written. In Boehner’s USA Today piece he says “I believe the president’s actions in a number of areas — including job-destroying energy regulations, releasing the ‘Taliban 5 from Guantanamo without notice and waiving the work requirements in welfare — exceed his constitutional authority.”  The House Rules majority adds No Child Left Behind waivers and the DREAM Act to the list. Of these, along the lines of a prior post, only the detainee notice requirement is plausible as a violation of the letter of the law — regulations, even bad ones, are part of the implementation process; and Obama did not actually waive the work requirements in the 1996 welfare act. (At best one could argue he explored the possibility of doing so.)  In any case H.Res 676 is limited to implementation of the Affordable Care Act. I’ve argued (e.g., here) this is indeed a dubious example of discretion on the part of the administration. But even leaving aside the standing question (see below) and the gap between the rhetoric and the specifics of the suit, even legal victory will mean that “Congress’s ability to effectively represent the American people” (as per House Rules) will put in place insurance mandates the GOP believes undermine the will of the American people.  (The Republicans argue that defending a provision they don’t even support shows just how sincere they are about the broader institutional issues.)

All of this is before we get to the legal feasibility of the suit itself, which has of course attracted much attention. The House Rules Committee hearing, which can be watched here - though only by those with an immunity to High Definition seersucker — dealt with this question in depth.  Does the House have standing to sue at all? The entities most affected by the delay in the mandate are businesses who are presumably happy enough with that delay; their prize for winning the suit would be to pay retroactive tax penalties. (An employee of such a business might be a more plausible plaintiff – but going that route would require arguing that employees might benefit from the ACA.)

The fact that the House has acted as a body probably does help. Though the House is not Congress – and the Senate does not seem likely to join in — this helps distinguish this suit from the array of War Powers Resolution cases, for instance, where individual members have sought presidential compliance with WPR provisions. And one should not discount the ability of judges of all ideological stripes to find jurisprudential justification for their policy preferences.  The argument (made by Walter Dellinger) that Congress’ job is done when a law is passed is not particularly persuasive either.

Still, even if this matter is in fact justiciable — still a pretty big if – does that mean it should go to court? The Rules Committee wound up having a quite useful discussion back in mid-July — despite itself, one is tempted to think. Members and witnesses on both sides agreed that, too often, legislative party ID has trumped members’ institutional identification. GWU law professor Jonathan Turley argued that “The problem… is that members of this body increasingly are disconnected to their institutional interests. They don’t identify themselves with the legislative branch…. There was a time when this building was filled with people who fought for institutional interests even over their own party.”  As a result, Congress is “moving from self-loathing to self-destruction.”  An invisible Congress is required for an imperial presidency.

The disagreement came less in the diagnosis than the prescription.  Turley felt that defining “the lines of separation” (of powers) is a “core function” of the judiciary. “The courts have removed themselves from this process, and the result has been the dysfunctional politics that we see.” But this seems to confuse a causal variable with a confounding one.  Simon Lazarus pointed out, about 4 hours into the hearing, that “running to the courts to bail you out, with all due respect, is a huge leap toward radically further diminishing the Congress’s role.”  Congressional outsourcing of its ambition (as per Federalist 51) is what got that body in trouble vis-a-vis the executive branch in the first place. Arguing that legislative leadership must be exercised by the judiciary seems to take separation of powers to an odd extreme.

Yet this seems to be the stand the House wants to make. Lost in the shuffle has been a widely bipartisan (370–40) House vote on Friday that actually did make a statement for institutional pride — arguing that the president’s war powers do not extend to re-inserting combat troops in Iraq. That may be a better battlefield for the concerns raised on the House floor yesterday.

Andrew Rudalevige is Thomas Brackett Reed Professor of Government at Bowdoin College. He specializes in the study of American political institutions, primarily the presidency and the interbranch relations, with a recent focus on presidential management of the executive branch.
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