It was just a week ago that House Speaker John Boehner (R-Ohio) unveiled his long-awaited lawsuit against President Obama, which immediately landed with a thud. After weeks of buildup about a lawless, out-of-control White House, Boehner identified one executive action worthy of litigation: a shift in a deadline for an obscure Affordable Care Act provision.
Making matters slightly worse, the Republican Speaker was suing to require the Obama administration to immediately implement a policy the Speaker does not actually want to see implemented.
Yesterday was supposed to be a day for the case to get back on track, starting with a House Rules Committee hearing featuring two witnesses, both of whom would explain why the lawsuit has merit. Republicans could have chosen any two witnesses in the country, but for one of the slots, they chose a law professor, Florida International University’s Elizabeth Price Foley, who recently argued the lawsuit would be thrown out of court. She wrote in February:
When a president delays or exempts people from a law – so-called benevolent suspensions – who has standing to sue him? Generally, no one. Benevolent suspensions of law don’t, by definition, create a sufficiently concrete injury for standing. That’s why, when President Obama delayed various provisions of Obamacare – the employer mandate, the annual out-of-pocket caps, the prohibition on the sale of “substandard” policies – his actions cannot be challenged in court.
So, Republicans picked a witness to argue the polar opposite of what she’d already argued.
Worse still, Boehner hasn’t fully convinced his own members that the lawsuit is worthwhile.
Simon Maloy noted yesterday that some leading GOP officials seem to have distanced themselves from the Speaker’s litigation.
After Boehner said last week that immigration reform was officially dead for the year, Rep. Mario Diaz-Balart took a swipe at his own leadership by arguing that the best way to curb the threat of Obama’s executive action on the matter was to actually pass legislation – an implicit rejection of the rationale behind Boehner’s lawsuit.And yesterday, during a speech at Hillsdale College, Rep. Paul Ryan offered his own thoughts on asking judges to intervene in political fights:“Finally, there is the temptation to ask courts to intervene and solve our problems for us. Some conservatives think of judges the way Progressives think of bureaucrats: technical experts with the solutions to our constitutional conflicts. But judges, like bureaucrats, are often the problem. We must be mindful of this temptation. It is true that the Supreme Court can be an ally in conflicts surrounding the Constitution. But it can also be an adversary.”
The far-right Budget Committee chairman didn’t specifically mention Boehner’s lawsuit, but given the broader political context, Ryan’s rejection of asking the courts to “intervene and solve our problems for us” was hard to overlook.
As for the Rules Committee hearing, chairman Pete Sessions (R-Texas) began the hearing by justifying his expertise on the subject – he “studied the merit badges that we took about governance, about cities, states, the national government” while in the Boy Scouts – and the hearing devolved from there.