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Boehner vs. Obama: To Sue or Not to Sue, That is the Question (Forbes.com) July 10, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.

I wish I could say that House Speaker John Boehner’s developing plan to sue President Obama for abuses of executive power is a good idea.  I really do.  The record of such abuse is long and significant, from unilaterally suspending and delaying portions of Obamacare to altering fundamental aspects of immigration law by executive order.  Indeed, the U.S. Supreme Court recently and unanimously reversed the president’s abuse of power in making executive recess appointments that were not, in fact, during a congressional recess.    There is ample evidence for the proposition that President Obama has fundamentally altered the Constitutional balance of power among the branches of government in ways that should be reversed.

But is this a problem for which the courts are an appropriate solution?  Unfortunately, for both legal and political reasons, the answer is “no.”  And the sooner Speaker Boehner and his Republican colleagues realize that such a lawsuit against the president will be a legal failure and, like Senator Ted Cruz’s attempt to shut down the federal government over Obamacare, a political bust, the better.

Although Boehner has not fully revealed the basis for his suit against Obama, the legal analysis must start by recognizing that there is no real precedent for Congress to sue the President for failing to execute the law.  A primary reason for this is that courts generally find that Congress as a plaintiff lacks “standing,” or any kind of personal and concrete damage that a court would legally recognize.  Battles over the balance of power among the branches of government are more “political questions” which courts have long recognized need political, not judicial, resolution.   Given the lack of precedent for it, such a suit would almost certainly lose in the first round in federal district court, and political pressure against the matter would mushroom immediately.

The real purpose of the suit then would seem to be more political than legal, creating a bit of theater in which two very unpopular branches of government, the executive and legislative, duke it out in front of the third branch, the judiciary.  And frankly, the people have no patience for this.  President Obama’s popularity is lower than anyone could have believed possible a few years ago, with his recent selection in a Quinnipiac University poll as the worst American president since World War II.  And Congress is, if it is possible—and apparently it is—even less popular, with 9% approval in the most recent poll.  Who wants to see these “losers”, whom everyone agrees are in gridlock and doing essentially nothing about the problems and needs of the country, staging a fight over who is overreaching in power?  It will be like Ted Cruz trying to shut down the government, where the noise over his tactics was louder than the central point (does anyone even remember it was about healthcare?) he was trying to make.

Further, a lawsuit against the president over executive power opens Republicans to reasonable claims of hypocrisy, since they are the ones always complaining about judicial activism.  Conservatism should not be content to pursue conservative ends by any means, but should consistently demonstrate a commitment to conservative means as well.  As a consequence, pursuing an unprecedented legal attack on presidential power through the courts puts House Republicans right where they don’t belong, seeking a judicial solution to a political problem.

No, what Speaker Boehner and House Republicans should do is to pursue President Obama’s abuse of executive power in the mid-term elections in November, not in a federal court in July.  Deliver a political rebuke to the President, take away his party’s control of the U.S. Senate, and send a message that Obama and the Democrats have overreached and are taking the presidency and the country in the wrong direction.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/07/10/boehner-vs-obama-to-sue-or-not-to-sue-that-is-the-question/

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