"About the only good thing that can be said for Boehner’s lawsuit is that it’s clearly meant to deflect the hard-right fervor for impeaching Obama."

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GOP lawsuit looks like political sideshow
July 27, 2014

President Barack Obama and congressional Republicans are in the political equivalent of a bad marriage. They bicker about everything, accuse each other of acting in bad faith and don’t much like one another. Now, like a lot of dysfunctional relationships, this one is heading to court.

This week, before the House leaves for its August recess, the GOP majority is expected to approve a lawsuit against Obama. Speaker John Boehner, R-Ohio, says it will accuse the president of unconstitutionally abusing his executive power by delaying the Obamacare requirement that larger companies provide health insurance or pay a fine — the so-called employer mandate.

It’s possible to view this as a high-minded dispute over where the Constitution draws the lines of authority between Congress and the president. Republicans cite scores of examples of what they say is executive overreach, such as Obama’s decision not to deport children brought here illegally by their parents.

But the lawsuit focuses solely on a small part of Obamacare, one that Republicans would love to see delayed forever. A fair-minded look at the suit’s merits suggests it’s really more of a political grudge match, one in which the GOP is seeking an outcome it hasn’t been able to achieve at the polls or through the legislative process.

For one thing, Obama’s temporary delay to part of the health law doesn’t seem much different from former President George W. Bush’s action in 2006 to extend the deadline and waive penalties for certain seniors who hadn’t signed up in time for the new Medicare prescription program. Both presidents appeared to be making reasonable, short-term accommodations to reality, and courts have traditionally given the executive branch broad discretion in implementing complex new laws.

The ultimate remedy when Congress believes the president has acted unconstitutionally is impeachment, but that should be reserved only for major abuse of power, such as former President Richard Nixon’s role in the Watergate scandal four decades ago. About the only good thing that can be said for Boehner’s lawsuit is that it’s clearly meant to deflect the hard-right fervor for impeaching Obama.

Judges have overwhelmingly rejected these interbranch lawsuits, which have also been brought by Democrats aggrieved by something a Republican president has done. For one thing, plaintiffs must show actual harm. And Congress has other remedies short of running to a judge: It can pass a law or use its power of the purse to deny the president funding for what he seeks to do.

Most important, courts are wary of inserting themselves between the other two branches.

“Opportunities for dragging the courts into disputes hitherto left for political resolution are endless,” conservative Supreme Court Justice Antonin Scalia wrote in a dissent last year. Putting the “political arm wrestling” between the president and Congress into the courts “does not do the system a favor,” Scalia added.

Not only that, the power of so-called activist judges would soar if the courts began routinely refereeing disagreements between the other two branches. Is that really what Boehner and his colleagues want?
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