The TanMan’s lawsuit: political theater doomed to failure

The TanMan, Weeper of the House John Boehner, the consensus “Worst. Speaker. Ever.” who has presided over the least productive “Worst. Congress. Ever” in American history, the less-than do-nothing 112th Congress and the less-than-less-than-do nothing 113th Congress, is going forward with his damn fool idea to sue the President to try to appease the rabid right-wing base of the GOP who waste their days listening to hate radio and FAUX News.

The Tea-Publicans got together in an undisclosed location and brainstormed what it is they wanted to sue over, and guess what these brainiacs came up with? The party that has voted over 54 times to repeal all or part of “ObamaCare” want to sue over Obama delaying the employer mandate and tax penalties by one year. The House itself voted to delay the employer mandate and the individual mandate on July 17, 2013 around the same time. House Votes to Delay Employer and Individual Mandates by One Year.

As Greg Sargent of the Washington Post wryly observed, “So here’s the bill text on John Boehner’s lawsuit against the president, and shockingly, it does not cite Deferred Action for Childhood Arrivals among Obama’s offenses; the main one is the delay of the employer mandate. Perhaps Boehner didn’t want to be suing Obama for not deporting the DREAMers.”

John Boehner is Alice, and he has gone through the looking glass. I am convinced the man has gone quite mad.

Jonathan Capehart of the Washington Post writes, Boehner lawsuit against Obama: ‘There’s no there there:

When I called the impending lawsuit against President Obama by House Speaker John Boehner “frivolous” last week and questioned whether the House even had standing to bring such litigation, renowned Harvard constitutional law professor Laurence Tribe cautioned me.

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What a difference a week makes. Tribe told me yesterday that he is “now convinced that there’s no ‘THERE there.” And that was BEFORE the speaker released language of a bill seeking authorization to sue the president “over the way President Obama unilaterally changed the employer mandate” in the Affordable Care Act. Boehner’s announced action solidified Tribe’s view.

“The very fact that Boehner is willing to say the House of Representatives is injured by the President’s decision to delay the implementation of the employer mandate is bizarre in itself, given how often the House has voted not just to delay it but to scuttle it,” Tribe told me via e-mail last night. “And it’s hard to imagine what conceivable remedy a federal court could possibly issue: an order directing the President to reverse course and implement the employer mandate sooner? Hardly!”

This gets to the issue of standing that Tribe was talking about last week. If Congress passes the bill authorizing a suit against Obama, Tribe is convinced “the court will realize that the suit has to be tossed out for 3 independently fatal reasons.” The president’s action did not harm the House as an institution. None of his actions is an abuse of power. And the judicial branch has repeatedly refused to get involved in political fights between the legislative and executive branches.

Below are the bullet points Tribe sent me on this topic yesterday, which he tweaked after Boehner revealed his Obamacare gambit, so you can read his comments in full and in context.

1. Despite arguments the other way, the House of Representatives doesn’t have standing because none of Boehner’s accusations shows any harm to the House as an institution. This wouldn’t be like letting the House appear in the Supreme Court to defend DOMA when POTUS refused to defend it in Windsor, which was a lawsuit involving a concrete fight over Edith Windsor’s tax liability. There, the only “standing” issue was whether a special committee appointed by the House had standing to be heard in support of a law for which the House had voted where nobody else would speak in that law’s support. The Court concluded that the House had standing for that limited purpose, which is not really parallel to letting the House drag POTUS into court to defend his own uses of executive authority.

2. Now that we have seen the Boehner complaint, it has become painfully clear that it lacks merit anyway. The nub of the complaint is the claim that President Obama is failing faithfully to execute the Affordable Care Act — the very law that the House has tried fifty times to repeal — because he has delayed the effective date as of which companies with more than 50 employees will be required to extend insurance to their employees if they are to avoid being assessed a tax penalty by the IRS. That delay impacts fewer than one percent of the American workforce because 96% of businesses employ under 50 employees and were not affected by the delay. But even if that tempest in this teapot were good cause to upset the separation of powers by asking the federal courts to direct presidential conduct in the implementation of a law, it’s a tempest without substance. According to the Assistant Secretary for Tax Policy, the delay is based on the Treasury Department’s “transition relief” authority under Section 7805(a) of the Internal Revenue Code, which has been used to delay the application of new mandates of this kind by prior administrations (including the Bush administration) on a number of prior occasions. So the much-ballyhooed Boehner lawsuit turned out to be a great big fizzle when the veil was lifted and the Speaker was pressured to put up or shut up.

3. The judicial branch has no role to play in any event. If there were a clear abuse of power, which there hasn’t been, the constitutional remedy would start with an “I” & not an “L”  – impeachment, and not litigation. The irony is that Congress would be asking the judiciary to usurp a role the Constitution assigns exclusively to Congress. In a word, the suit should and would be tossed out on “political question” grounds in the same way that the Supreme Court 35 years ago tossed out Senator Barry Goldwater’s suit (joined by some other Members of Congress) against President Jimmy Carter for his unilateral termination of the U.S. trade treaty with Taiwan.

Tribe agrees with me that what Boehner is doing will ultimately lead to an impeachment effort. While I believe the speaker will be forced into doing it by a raucous caucus hellbent on punishing Obama now by their own hands rather than wait for the courts. Tribe suggested that impeachment is the actual goal since he strongly believes the courts will toss the Boehner suit.

Scott Bomboy at the Constitution Daily blog posted before the lawsuit, Boehner’s lawsuit against Obama would face big hurdles:

Boehner is believed to be working under a theory proposed by attorney David Rivkin and Elizabeth Price Foley, a professor of law at Florida International University College of Law, that gives Congress a path to a lawsuit using the Bipartisan Legal Advisory Group (BLAG).

Rivkin told the Roll Call website that the House would need to prove injury as an institution; to prove that as an institution, it has authorized the lawsuit, through a vote by BLAG; to prove that no other private plaintiff has standing to challenge; and that there are no political remedies available to Congress.

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Past efforts to sue Presidents over political matters have usually hit dead ends.

In 1982, the Supreme Court ruled in Nixon v. Fitzgerald that a President is entitled to absolute immunity from liability for damages based on his official acts.

Justice Lewis Powell, writing for the majority in a 5-4 decision, said that this broad immunity was a function of the “President’s unique office, rooted in the constitutional tradition of separation of powers and supported by our history.”

Powell added that there were other ways to guard against alleged presidential misconduct, without a stream of lawsuits.

“A rule of absolute immunity for the President does not leave the Nation without sufficient protection against his misconduct. There remains the constitutional remedy of impeachment, as well as the deterrent effects of constant scrutiny by the press and vigilant oversight by Congress. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature.”

A later case, Clinton v. Jones, established that a President didn’t have immunity from a civil lawsuit regarding his or her conduct before and after holding office.

And in his footnotes in the Nixon v. Fitzgerald decision, Powell said the decision was about private lawsuits. “We need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States,” he said.

Back in 2011, 10 members of Congress did sue President Obama over his decision to use military force in Libya. According to a Congressional Research Service report from 2012, a reviewing federal district court dismissed the case on jurisdictional grounds due to lack of standing.

“While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law,” federal judge Reggie Walton said.

Judge Walton expressed dismay that the plaintiffs wanted “to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.”

As a lawyer, the only appropriate response to Boehner’s ill-conceived lawsuit is a Rule 12(b)(6) motion to dismiss for failure to state a claim, throwing in all of the defenses to litigation, i.e., lack of standing, no actual case and controversy, no harm to be remedied, separation of powers “political question” doctrine, immunity from suit, etc.

But I would also file a motion for leave to amend the president’s Answer to preserve the right to amend as a matter of right in the event the court somehow does not dismiss the case. That allows the president to file counterclaims against John Boehner and the Congress for their abject failure to faithfully execute their constitutional duties. “You want to get crazy, let’s get crazy!” And I would file a motion for Rule 11 sanctions against Boehner and his lawyers.

Dean Obeidallah at The Daily Beast has already posted about this. Obama Should Counter John Boehner’s Lawsuit—and Here’s How He Can Do It:

The best way for Obama to expose Boehner’s gimmicky lawsuit? Countersue! Never heard of Rule 11 in civil procedure? Well, read on.

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If Boehner files this lawsuit, I can only hope that Obama files a bunch of counterclaims.  I’d love to see Obama ask a court to compel Boehner to actually do some work, like bring immigration reform or raising the minimum wage up for a vote.

And Obama should definitely sue Boehner to reimburse us for the costs associated with the 54 times the GOP-controlled House has voted to repeal Obamacare. Per CBS’s 2013 calculations, those meaningless votes cost $52.4 million in taxpayer’s dollars.

Obama’s counterclaims would certainly rile up the Democratic base and score some great headlines. But these claims by Obama would be patently without merit. These are political issues that need to be resolved via the political process, not via the judiciary.

And that’s the exact same reasoning that applies to Boehner’s threatened litigation against Obama. Boehner and the Republicans in the House are trying to use the court system to score political points—nothing more.

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[I]n federal court, if you pursue an “objectively baseless” claim, you can be sanctioned by the court (PDF) under Rule 11.

These sanctions range from getting hit with monetary fines to being ordered to reimburse the other parties in the lawsuit for their legal fees. And those sanctions can be assessed against each lawyer individually who signed the pleadings, their law firm, and the actual parties to the litigation. (I’d love to see the House GOP pass the hat around to pay their sanctions.)

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Eric J. Segall, a law professor at Georgia State University, explained to me that “every U.S. President is given great discretion when implementing laws that Congress has passed, and Obama has not acted differently in that capacity from any President since the New Deal.”

The National Review acknowledged in a recent article that in the world of “legal academia,” the lawsuit is seen as doomed because of questions concerning the legal standing to bring such a lawsuit. Even Erick Erickson wrote on Monday: “John Boehner’s lawsuit is nothing more than political theater and a further Republican waste of taxpayer dollars.” (Of course, what people like Erickson and Sarah Palin want the House to do is impeach Obama, not file an impotent lawsuit.)

Two of the lawyers advising Boehner, Elizabeth Foley and David Rivkin, also conceded to National Review that it was not clear if the House had standing to bring such a claim. When asked how they would overcome these legal challenges, they responded, with “creativity.”

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If Boehner does file his ill-advised lawsuit, it’s my hope that Obama’s legal team swiftly files a motion for Rule 11 sanctions against Boehner and his legal team.

Unfortunately the people who are actually driving this political gimmick, the conservative media entertainment complex, will not be parties to this lawsuit and will not be subject to Rule 11 sanctions. They are a malignant cancer that is destroying the body politic of America.

Their fevered dreams of impeachment to relive their “glory days” of The Hunting of the President, i.e., the Bill Clinton impeachment, are equally doomed to failure, because “no Person shall be convicted without the Concurrence of two thirds of the Members [of the Senate] present.” Ain’t gonna happen.

This is a prescription for the next Congress to again fail to do the work of the American people, and to consume itself with partisan warfare for consumption by the rabid conservative media entertainment complex.

You can stop this insanity by turning out to vote to elect more Democrats to Congress and the Senate in November.