When I called the impending lawsuit against President Obama by House Speaker John Boehner “frivolous” last week and questioned whether the House even had standing to bring such litigation, renowned Harvard constitutional law professor Laurence Tribe cautioned me.
“The House as an institution may well have standing to challenge at least some of the president’s unilateral suspensions and revisions of statutory deadlines and specific mandates in the Affordable Care Act and other congressional legislation, including legislation governing deportations,” Tribe told me. “It’s not an open-and-shut case, but the House would have at least a plausible basis for claiming standing.”
What a difference a week makes. Tribe told me yesterday that he is “now convinced that there’s no ‘THERE there.” And that was BEFORE the speaker released language of a bill seeking authorization to sue the president “over the way President Obama unilaterally changed the employer mandate” in the Affordable Care Act. Boehner’s announced action solidified Tribe’s view.
“The very fact that Boehner is willing to say the House of Representatives is injured by the President’s decision to delay the implementation of the employer mandate is bizarre in itself, given how often the House has voted not just to delay it but to scuttle it,” Tribe told me via e-mail last night. “And it’s hard to imagine what conceivable remedy a federal court could possibly issue: an order directing the President to reverse course and implement the employer mandate sooner? Hardly!”
This gets to the issue of standing that Tribe was talking about last week. If Congress passes the bill authorizing a suit against Obama, Tribe is convinced “the court will realize that the suit has to be tossed out for 3 independently fatal reasons.” The president’s action did not harm the House as an institution. None of his actions is an abuse of power. And the judicial branch has repeatedly refused to get involved in political fights between the legislative and executive branches.
Below are the bullet points Tribe sent me on this topic yesterday, which he tweaked after Boehner revealed his Obamacare gambit, so you can read his comments in full and in context.
1. Despite arguments the other way, the House of Representatives doesn’t have standing because none of Boehner’s accusations shows any harm to the House as an institution. This wouldn’t be like letting the House appear in the Supreme Court to defend DOMA when POTUS refused to defend it in Windsor, which was a lawsuit involving a concrete fight over Edith Windsor’s tax liability. There, the only “standing” issue was whether a special committee appointed by the House had standing to be heard in support of a law for which the House had voted where nobody else would speak in that law’s support. The Court concluded that the House had standing for that limited purpose, which is not really parallel to letting the House drag POTUS into court to defend his own uses of executive authority.
2. Now that we have seen the Boehner complaint, it has become painfully clear that it lacks merit anyway. The nub of the complaint is the claim that President Obama is failing faithfully to execute the Affordable Care Act — the very law that the House has tried fifty times to repeal — because he has delayed the effective date as of which companies with more than 50 employees will be required to extend insurance to their employees if they are to avoid being assessed a tax penalty by the IRS. That delay impacts fewer than one percent of the American workforce because 96% of businesses employ under 50 employees and were not affected by the delay. But even if that tempest in this teapot were good cause to upset the separation of powers by asking the federal courts to direct presidential conduct in the implementation of a law, it’s a tempest without substance. According to the Assistant Secretary for Tax Policy, the delay is based on the Treasury Department’s “transition relief” authority under Section 7805(a) of the Internal Revenue Code, which has been used to delay the application of new mandates of this kind by prior administrations (including the Bush administration) on a number of prior occasions. So the much-ballyhooed Boehner lawsuit turned out to be a great big fizzle when the veil was lifted and the Speaker was pressured to put up or shut up.
3. The judicial branch has no role to play in any event. If there were a clear abuse of power, which there hasn’t been, the constitutional remedy would start with an “I” & not an “L” — impeachment, and not litigation. The irony is that Congress would be asking the judiciary to usurp a role the Constitution assigns exclusively to Congress. In a word, the suit should and would be tossed out on “political question” grounds in the same way that the Supreme Court 35 years ago tossed out Senator Barry Goldwater’s suit (joined by some other Members of Congress) against President Jimmy Carter for his unilateral termination of the U.S. trade treaty with Taiwan.
The claim of those filing the suit was that Carter’s action in terminating the treaty deprived them of their constitutional role in the treaty process and thus in changing the supreme law of the land. Although one Justice relied in part on the fact that the Senate had not enacted a formal resolution rejecting the President’s claim that he was acting within his authority as the chief representative of the Nation in foreign affairs, the plurality opinion of then-Justice Rehnquist held that the case presented a non-justiciable political question that could never be considered by the Court. Goldwater v. Carter (1979).
Tribe agrees with me that what Boehner is doing will ultimately lead to an impeachment effort. While I believe the speaker will be forced into doing it by a raucous caucus hellbent on punishing Obama now by their own hands rather than wait for the courts, Tribe suggested that impeachment is the actual goal since he strongly believes the courts will toss the Boehner suit.
“Boehner might actually HOPE that whichever court tosses out his complaint itself uses the ‘I’ word in an opinion identifying impeachment as the exclusive remedy for whatever complaints the House of Representatives might have,” Tribe told me. “Boehner could then twist that into a suggestion that Articles of Impeachment be filed and thereby have stronger authority than Sarah Palin to invoke when taking the ‘I’ move!”
When asked about Palin’s impeachment rant, all Boehner could muster is “I disagree.” That’s the same response he gave when informed that some of his fellow House members were calling for the same thing. Whether the speaker agrees or not isn’t the issue; it’s whether he will buckle to the crazy demands of his caucus. Republicans will hold the House, but if they retakes the Senate the pressure to bring Obama to heel will be unrelenting. Once the courts kick the Boehner suit to the curb, impeachment will be their only recourse.
Follow Jonathan on Twitter: @Capehartj