Constitutional Scholars Are Not Impressed: Call Boehner’s Lawsuit An ‘Embarrassing Loser’

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As Speaker John Boehner (R-OH) tries to run away from his lawsuit, Constitutional scholars weighed in on it and they are not impressed. Democrats are seizing on the fail, raising record amounts of money off of Boehner’s “meritless” “loser”.

During a July 16 hearing of the Rules Committee on whether to sue President Obama over the Affordable Care Act, Charles Tiefer of the University of Baltimore Law School called the Speaker’s suit an “embarrassing loser”. He should know, because as he explained, he has 15 years of full-time Congressional litigating experience. More experience than anyone else. “I have had more experience than anyone else, focused on what kinds of House roles in litigation do or do not get accepted by the courts as legitimate.”

Tiefer’s bio is even more impressive, as he specializes in separation of powers and Congressional procedure “Professor Tiefer wrote Congressional Practice and Procedure (1989), the only treatise on Congressional procedure, and The Semi-Sovereign Presidency (1994), a book on separation of powers. He has published articles on legislation, separation of powers, international law and federal government operations in the Harvard Journal on Legislation, Yale Journal on Regulation, Texas International Law Journal, the Boston University Law Review and numerous other law reviews.”

Is Boehner’s lawsuit legit? “…there is no standing and it is a bad idea for a Speaker to file such an embarrassing loser.”

Oh. As we have explained many times, Boehner is trying to draw the courts into a typical fight between the legislative and executive branches– a fight the court has been loathe to venture in the past. Furthermore, there is decades of precedent for President Obama to have taken the action he did in terms of directing the delay of the implementation of one part of the Affordable Care Act.

Laurence H. Tribe, a liberal leaning scholar of Constitutional law and Professor of Harvard University Law School weighed in during the hearing and was equally unimpressed, “I am entirely persuaded, based on nearly a half-century of study and writing about our Constitution, that the proposed lawsuit would represent a wholly meritless attempt to invoke the jurisdiction of the federal judiciary at the behest of an institution that cannot plausibly allege, much less demonstrate, any distinctive injury to itself or its members and that therefore lacks standing under settled Article III principles to litigate this matter.”

No standing again. Oh, what a cruel reality for Speaker Boehner, whose lawsuit is a last ditch attempt to appease his rabid Tea Party base, who are frothing at the mouth Palin-style for impeachment. Since there are no grounds for impeachment, that would be super embarrassing.

Of course, there are also no grounds for Boehner’s lawsuit, which Tribe notes, “manifestly lacks any legal merit.”

Tribe taught President Obama at Harvard, and no doubt Boehner and the right will console themselves with this bit of information, trying to unskew reality at they are wont to do. But Tribe also taught Supreme Court Chief Justice John Roberts.

Tribe is hardly alone in his assessment. Even Erick Erickson knows Speaker Boehner’s lawsuit is nothing but a political stunt. And Sarah Palin has been mocking Boehner for bringing a lawsuit to a gun fight. So basically, Boehner is pleasing and appeasing no one. Least of all, reality.

It seems, you see, that Speaker Boehern’s lawsuit is sort of a crying to mommy over a fight he/the legislative branch/House should be able to resolve on his/its own. Tribe concludes, “Finally, I am convinced that the lawsuit the Speaker asks this body to authorize would invoke the jurisdiction of the federal courts to entertain an obviously non-justiciable political question with respect to which the political branches are more than capable of defending their respective prerogatives without the interference of the judicial branch.”

Tribe cautioned Boehner and the House not to distort the system of checks and balances that has worked for centuries (until Boehner couldn’t handle his own caucus, apparently), “Whatever might be motivating this misguided and potentially costly effort, I would urge the House not to facilitate it and thereby distort the carefully calibrated system of checks and balances that has stood our Republic in good stead for over two centuries.”

The meritless, embarrassing loserness of it all just speaks for itself. Basically, Speaker Boehner’s caucus shut down the government in a fit of pique over the Affordable Care Act. That didn’t go well, as the public was pretty ticked off. So now he’s going to sue the President because the President delayed the implementation of the law for employers, as the executive branch can do. Republicans seem to have no consistent value other than it’s okay when their side does it and worse. After all, executive branch discretion over the implementation of laws is not exactly like George W Bush’s willful disregard of laws he didn’t like. Yes, that would be sue-worthy. This is not to suggest that a watchful eye should not be kept on the executive branch for expansion of powers. But President Obama has been, if anything, too hesitant to use his powers on domestic issues.

Boehner has had egg on his face repeatedly with his caucus refusing to even pass the Speaker’s own bill, and now he seems to be assisting his own political demise.

Sarah Jones

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Sarah has been credentialed to cover President Barack Obama, then VP Joe Biden, 2016 Democratic presidential candidate Hillary Clinton, and exclusively interviewed Speaker Nancy Pelosi multiple times and exclusively covered her first home appearance after the first impeachment of then President Donald Trump.

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