"The fact that he [Boehner] had such a difficult time finding legal representation that would stick is hardly a good sign."

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Boehner’s Lawsuit: For Show or for Love of the Constitution?
By Anthea Mitchell, November 30, 2014

Controversy seems to be all the rage lately. Around the time of President Obama’s announcement on his executive action reforming immigration, House Speaker John Boehner (R-Ohio) spoke up once more regarding his plans to sue the chief executive on Obamacare. The suit has been in discussion for some time of course, but during the latter half of elections, it died down some — possibly because Republicans were worried the split-off impeachment discussions could spur Democratic voters to the polls.

Now that elections have passed and the president is facing more criticism for what some see as an overstep of power, and others see as a historically consistent capacity, Boehner is back on the board with a lawsuit in his sights. Last week, he announced that the House of Representatives had “filed litigation over President Obama’s unilateral actions on his health care law,” according to the Speaker’s press office.

“Too often over the past five years, the President has circumvented the American people and their elected representatives through executive action, changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold,” wrote Boehner in a CNN op-ed published over the weekend.

Boehner’s suit is tailored to address Obama’s signature healthcare law specifically, though his rhetoric certain suggests he’d like to take issue with a whole slew of activity from the executive branch. “The Constitution makes it clear that the President’s job is to faithfully execute the laws. And, in my view, the President has not faithfully executed the laws when it comes to a range of issues, including his health care law, energy regulations, foreign policy, and education,” wrote Boehner.

Other Republicans have been quick to add their voices, and it’s interesting to see that the GOP word choice has been quite similar across commentators. One of the most common words used in criticism of Obama — as we so often see with the gun control debate as well — has been “Constitution.” As in, “The House has an obligation to stand up for the Constitution.”

The interesting thing about appealing to this sort of idea, namely the violation of America’s most sacred document, is that the constitution, while of extreme historical, emotional, and national significance, is hardly a hefty document. Which is why American constitutional law is based on jurisprudence built up over years and years of complex legal changes, not to mention the changes political roles and traditions take on organically over years and years. One simple example would be the Vice Presidency.

Historically, the position of Vice President was actually a fairly weak one; not an unimportant one, but not one through which much action was taken. That role has since changed, particularly visible in the Bush/Cheney era. The key takeaway point here is that government evolves, and making a constitutional argument given where history has taken us in terms of the norms of executive action and Congressional battle of wills with our nation’s backlog of executive leaders isn’t terribly strong. This is especially the case given how unlikely Boehner’s suit is to be taken up. The political purpose of his actions may be successful, he may satisfy highly conservative critics of the Affordable Care Act, and he may place the president in a less than comfortable place; ultimately, though, it’s entirely possible he won’t even get his case heard. The fact that he had such a difficult time finding legal representation that would stick is hardly a good sign.

Boehner describes his suit as a response to the President failing to enforce law passed by Congress as is his constitutional duty, but his two listed litigation targets, “Unlawfully waiving the employer mandate,” and “illegally transferring funds to insurance companies” are somewhat schizophrenic in aligning with the described intent. Instead of a failure to enforce, he seems once again to be in discussion of overstepping power boundaries, and failing to go through Congress.

“What’s disappointing is the President’s flippant dismissal of the Constitution we are both sworn to defend. It is utterly beneath the dignity of office,” wrote Boehner in his op-ed. He’s likely referring to the oft-quoted “so sue me” comment Obama said in a July speech on the economy. Unfortunately for Boehner, it seems entirely plausible that rather than flippant dismissal of the Constitution (he taught constitutional law back in Chicago), he’s rather flippantly dismissing Boehner’s efforts. “I mean, everybody recognizes this is a political stunt,” said Obama later that month. “But it’s worse than that, because every vote they’re taking like that,” — in reference to H.Res. 676 — “means a vote they’re not taking to actually help you.”
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