Boehner’s Obama Suit: Political Stunt? Or Precursor to Impeachment?

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There are some big things currently going down in government. There’s an attempted impeachment targeting President Barack Obama to start. Speaker of the House John Boehner (R-Ohio) is basing his lawsuit on the argument that Obama has overstepped the reach of presidential power with his use of executive orders. However, the fact that we’re not seeing immigration reform or one of the many other items that need addressing reach Congress, but are instead looking at impeachment and (constitutional amendments), is interesting. The noise and outcry surrounding both of those items have something in common, actually. People’s responses to them are often either dulled down by disbelief, or tend to be in the theoretical, the conceptual; not considering such activities to be viable legislative or legal arguments. So that begs the question: Should we be taking this impeachment more seriously?

According to a recent poll, perhaps not. Public Policy Polling reports that 41 percent of voters who responded to the survey said that Boehner had a “legitimate” suit, while 51 percent believed the suit to be a political stunt. Fifty-six percent said it was a poor use of taxpayer money, and 36 percent said that it was a good use. A large majority tend to think the suit isn’t constructive, 34 percent saying it will help improve lives compared to 58 percent who say it won’t, and 63 percent polling that Congress should be working on job creation instead, while 30 percent think a suit should take precedence.

Looking at results of the poll, which was commissioned by Americans United for Change, it’s good to be up front about a few things. The first is Public Policy Polling’s reputation, and the second is the company that commissioned the poll — both especially salient given that Kantar found, ironically in a poll — that three out of four Americans consider public opinion polling to be biased. Alan Murray, president of Pew Research, argues that, “There is an element of this that people don’t trust anybody or any institution,” according to The Washington PostGallup can back that depressing sentiment up with a poll. Therefore, it’s better to be up front about potential bias and temper our understanding of a polls significance and implications as we go.

Public Policy Polling is considered by many to be left-leaning because of its penchant for conducting polls only for progressive or liberal organizations. On the other hand, The Wall Street Journal listed Public Policy Polling as one of the better polls in terms of accuracy and bias. It cited Costas Panagopoulos, a political scientist form Fordham University, as saying that PPP was the third most accurate of 28 firms he examined. It also cited Political Scientist Simon Jackman from Stanford who said that, comparatively, PPP “did really well” in terms of staying away from partisan bias. “Congress — and John Boehner personally — already have record low poll numbers. These new findings indicate that the lawsuit against Obama will just reinforce Boehner’s image as an out of touch leader with the wrong priorities,” said Tom Jensen, head of PPP, according to The Hill. In writing the report, he spoke about Republican’s more generally, saying that the survey showed “Americans think John Boehner’s lawsuit … is a wasteful stunt, and that it reflects misplaced priorities by him and Congress. It could even hurt Republicans at the polls this fall.”

Even President Obama doesn’t seem to be taking the suit seriously, teasingly referencing Boehner’s efforts in a speech earlier this month. “Middle-class families can’t wait for Republicans in Congress to do stuff. So sue me,” he said. What this ultimately comes down to is whether or not Boehner has a legitimate legal argument. As The Daily Beast points out, while Obama may have only penned 182 executive orders compared to former President George W. Bush’s 291 total orders, it doesn’t necessarily need to be about the number of orders; it’s about the orders themselves, or about the legal argument made based on the orders. The resolution to be used by Boehner and House Republicans was released last week, and based on its contents, we have an improved understanding of the suits chances. The concept of suing the president, while extreme, isn’t in itself ridiculous. Its chances of success are in large part influenced by exactly how the argument would be formulated.

The resolution in the House deals specifically with “implementation of (including a failure to implement) any provision of the Patient Protection and Affordable Care Act,” as well as specific provisions and amendments to the “Health Care and Education Reconciliation Act of 2010.” The resolution seeks permission for the suit, and Boehner and fellow Republicans take particular issue with the President’s delayed employer mandate.

Laurence Tribe, Harvard constitutional law professor, told The Washington Post that upon this argument a good case would not be built. Tribe’s opinion is made more relevant by two factors, one of which suggests a bit of bias perhaps, but both pertinent. The first is that he taught both Supreme Court Chief Justice John Roberts and the president in law school. The second is that he originally had cautioned against dismissing the legitimacy of the case.

The House as an institution may well have standing to challenge at least some of the president’s unilateral suspensions and revisions of statutory deadlines and specific mandates in the Affordable Care Act and other congressional legislation, including legislation governing deportations. It’s not an open-and-shut case, but the House would have at least a plausible basis for claiming standing,” said Tribe. Now that he’s seen the resolution, he’s reversing his position. “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 The Washington Post. “It’s hard to imagine what conceivable remedy a federal court could possibly issue,” he said.

Still, others feel that narrowing scope of the litigation to “unilateral actions on the healthcare law’s employer mandate” may still have legal merit. While it’s rather counterintuitive to argue that Obama has weakened Congress’ role in government by giving examples in which the legislative branch has agreed, it doesn’t necessarily prevent it from being a usable argument, but it does weaken how convincing an argument it makes.

“Professor Foley and I believe that, consistent with the existing case law, the House of Representatives would be able to gain standing to challenge a number of President Obama’s unconstitutional suspensions of law, which have nullified the House of Representatives’ legislative authority, thereby inflicting institutional injury on it,” said attorney David Rivkin to The Daily Beast. He, alongside Professor Elizabeth Price Foley, are two major legal minds working to make the suit a reality. Also indicative of some risk to the president is the Supreme Court’s track record with his administration, and a few recent warnings the President has seen in late rulings.

In the June 2014 ruling of the EPA Clean Air Act case — which overall was rather a win for the EPA – the majority opinion gave what certainly sounds like a warning, drawing some lines in the sand. It reads: “Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers,” going on to say that, “The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice.” Only time will tell how viable the suit may be — but one thing is for certain. While Boehner may have real interest in protecting the balance of powers, the attempted impeachment is most certainly a political stunt as well.

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