The next step in House Speaker John Boehner’s going-nowhere lawsuit against President Obama gets underway in the House Rules Committee today. According to The Hill, the underworked members who apparently have no other pressing business will hear testimony from experts “before likely moving forward with a resolution approving the lawsuit.”
My constitutional crutch, Harvard law professor Laurence Tribe, reiterated yesterday the four reasons why the case will be tossed. And they are worth repeating, if only to add a little reality to the fantasy unfolding on Capitol Hill.
1. The House lacks standing to bring suit against the president because there is no injury to the House.
2. Waiving the employer mandate is not a violation of federal law.
3. The courts routinely stay out of political fights between the legislative and executive branches where there is no injury to a private party bringing suit.
4. The court defers to an agency’s interpretation of “ambiguous legislative provisions.”
But Tribe added two more thoughts that I wasn’t able to work in yesterday that remain relevant because they throw back in conservatives’ faces their laments about judicial activism and their harangues about following the Constitution.
1. The Boehner suit asks the federal courts to enlarge their own powers at the expense of the powers of both elected branches, something that’s inconsistent with the standard “conservative” complaint about so-called “judicial activism.”
2. This invocation of judicial power by Boehner is also hard to square with the Constitution’s basic structure of checks and balances, something that’s inconsistent with the repeated claim from the right that it’s the Obama administration and the “liberals” who aren’t faithful to the Constitution.
If anyone has a reasonable counterpoint to this, I’d love to hear it.
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