John Boehner is a smart guy -- there, I said it. He's not a great statesman or legislator (he's not even good at these things), but he's brilliant at what he considers his main task in life: saving his own neck. Why do you think Boehner got through primary season without a scratch this year, while Eric Cantor lost his job and Thad Cochran nearly did? It's because Boehner knows how toss the ravenous rubes large chunks of red meat.
Republicans, after years of squabbling with President Obama, have decided to resolve their differences with him according to a time-honored American tradition.This is how you can be kinda-sorta pro-immigration reform, and kinda-sorta willing to make deals with the president, without facing the wrath of the teabaggers: you toss something like this to them and they stop growling hungrily.
They are going to sue him.
"What we have seen clearly over the last five years is an effort to erode the power of the legislative branch," House Speaker John Boehner (Ohio) said Wednesday, confirming his plans to take Obama to court . "I believe the president is not faithfully executing the laws of our country, and on behalf of the institution and our Constitution, standing up and fighting for this is in the best long-term interest of the Congress."
Why did Eric Cantor lose? The smart people told you it was because he didn't pay enough attention to the needs of his constituents. Then Thad Cochran came within a hair's breadth of losing because he was accused of paying too much attention to the needs of his constituents -- you shouldn't bring home so much pork, Thad! Obviously, the conventional wisdom about Cantor was wrong. The common thread for Cochran and Cantor was a lack of Fox-friendly grandstanding. Boehner, to put it mildly, doesn't have that problem. That's why he's still around.
But does Boehner even have standing to sue? Smart people are skeptical:
... Boehner may not be able to do so. According to Erwin Chemerinsky, the dean of the University of California, Irvine Law School, the speaker of the House does not have the ability to sue the president in this situation, even if Congress says he does. Chemerinsky says "standing," the doctrine that allows a person to file a lawsuit in federal court by demonstrating that real harm has been caused to them, is defined by the Constitution. As a result, even if Congress passes a law, or in this case a resolution, which only requires approval by the House, it will not be binding on federal courts, as the Constitution trumps any law, let alone a resolution, and does not give members of Congress the ability to sue if they cannot prove real harm.But as long as the federal bench includes Republican-appointed Federalist Society judges (is that redundant?), a case deemed to be legitimate by a Republican lawyer will be deemed legitimate somewhere in the legal system.
Just before Boehner announced his intentions, George Will wrote a column laying out the rationale for such a suit. He names the lawyers who think it's a swell idea, and relays their legitimacy claim:
... David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe that standing can be obtained conditional on four things:Is this legally valid? It doesn't matter. Rivkin's a Federalist Society lawyer. So is Foley. (She's also the author of a book called The Tea Party: Three Principles.) Of course it will be declared valid at least somewhere along the line. These right-wing lawyers take care of their own.
That a majority of one congressional chamber explicitly authorizes a lawsuit. That the lawsuit concern the president's "benevolent" suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’s power.
As I was thinking about this, what came to mind was the way the "broccoli" metaphor for the Affordable Care Act worked its way into legal legitimacy -- you know, the notion that the Constitution can no more require the purchase of health insurance than it can require the purchase of broccoli. This was once seen as a notion that wouldn't pass muster in the courts -- the Commerce Clause had been interpreted otherwise -- but a persistent campaign was mounted, and eventually right-wing judges accepted this interpretation by a right-wing lawyer.
Know who the key "broccoli" lawyer was? David Rivkin.
It turns out that broccoli did not spring from the mind of Justice Scalia. The vegetable trail leads backward through conservative media and pundits. Before reaching the Supreme Court, vegetables were cited by a federal judge in Florida with a libertarian streak; in an Internet video financed by libertarian and ultraconservative backers; at a Congressional hearing by a Republican senator; and an op-ed column by David B. Rivkin Jr., a libertarian lawyer whose family emigrated from the former Soviet Union when he was 10....The Court didn't overturn the Affordable Care Act, but broccoli was cited in the Court's ruling twelve times. So, yeah, what Boehner is doing could be taken very, very seriously in the federal courts.
In a September 1993 commentary in The Wall Street Journal, Mr. Rivkin and Mr. Casey argued that the Clinton proposal was unconstitutional. Requiring Americans to buy insurance went a step beyond a famous 1942 case, Wickard v. Filburn, which has long been a thorn in the side of those who opposed the New Deal. In it, the Supreme Court ruled that Congress had the power to prevent a farmer from growing wheat for his own consumption on the theory that any wheat affected the total supply, and thus fell within interstate commerce.
The health care law, the two lawyers maintained, did not ban an existing activity like growing wheat, but forced people who were doing nothing to act in a certain way. If Congress could regulate inactivity, they argued, there might be no limit to what it could force people to do. "If Congress thinks Americans are too fat," the article said, "can it not decree that Americans shall lose weight?"
... The Clinton administration’s health care effort collapsed. But Mr. Rivkin's unorthodox theory lived on, nurtured by "a small but discernible, libertarian segment of academia," he said....