The speaker is planning to sue the president because he allegedly “created his own law” by waiving the employer mandate under the Affordable Care Act. Many in this town believe that Boehner’s litigiousness is part of a larger strategy to keep his raucous caucus at bay on impeachment of Obama. If you’ve been reading my posts on this the past couple of weeks, you know I’ve always viewed the speaker’s effort as a fool’s errand legally and politically. Legally, as Laurence Tribe told me last week, “There is no there there” on the Boehner lawsuit. This morning, the Harvard constitutional law professor who taught both Supreme Court Chief Justice John Roberts and Obama reiterated why.
Tribe believes the speaker will lack standing to even bring the suit because there is “no injury to the House of Representatives as an institution.” He sees “no clear violation of any federal law anyway (given the flexible language of 7805(a) of the Internal Revenue Code, which has been used by other administrations to permit brief transition delays in implementation).” He says there is “no way to get around the political question doctrine making plain that the federal courts won’t intervene in battles between the two political branches where no injured private party brings suit.” And Tribe notes that the suit would be “an end-run around the 1985 precedent of Heckler v. Chaney.” In that case, Tribe told me, the Supreme Court deferred to agency interpretation of ambiguous legislative provisions.
Politically, the Boehner suit is a fool’s errand because it won’t do what he wants it do. Rather than tamp down talk of impeaching Obama, it will lead to an increased clamor for it. Yeah, Boehner said, “I disagree” when asked about Sarah Palin’s impeachment blabber. But, look, Boehner’s caucus is filled with folks who have wanted to punish the president for various and sundry “offenses” since at least 2010.
Let’s say by some miracle the case actually gets a hearing. When Obama’s detractors realize, as RedState’s Erickson pointed out, that their target of ire “will be out of office before such a suit is finally resolved,” they will demand he be punished “Now!” Impeachment will be their ticket because it is easier to accomplish than winning a lawsuit. All that’s needed is a simple majority of the House of Representatives to impeach a president and put an asterisk next to his name in the history books.
The one thing some Republicans have cited as their excuse for not doing so sooner is that the Democrats control the Senate. See, impeachment is a two-step process. The House impeaches, but the Senate convicts with a two-thirds majority or 67 votes. President Andrew Johnson (1868) and President Bill Clinton (1998) were impeached. Neither was convicted. Folks forget that part, if they knew it at all.
Last summer, Rep. Blake Farenthold (R-Tex.) told a constituent demanding Obama’s impeachment that “you could probably get the votes in the House of Representatives to do it” before adding, “But it would go to the Senate and he wouldn’t be convicted …” Sen. Ted Cruz (R-Tex.) made a similar assertion then, too. And just today, according to a tweet from Chad Pergram, who covers Congress for Fox News, “Rep Joe Barton (R-TX) on Obama: I think he’s impeachable..But its not practical…it won’t get two thirds in the Senate.”
If Democratic control of the Senate is the only thing holding them back, imagine the pressure on Boehner to impeach Obama if the GOP retakes the Senate in the November midterm elections. Because the speaker repeatedly has shown an inability to bring the tea party faction of his caucus to heel, I fully expect Boehner to buckle.