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Dick Polman: House GOP’s hilarious lawsuit strategy is born to lose

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Dick Polman
July 15, 2014

Recently, I wrote that summer is the time for stupid political stunts, and John Boehner should honor that tradition by making good on his vow to sue President Obama for alleged executive abuses.

“Do it, Mr. Speaker,” I urged. “Give us a laugh during silly season.”

Yes! He’s doing it!

A House GOP committee has drafted Boehner’s lawsuit resolution, which will be aired in a hearing this week. Republicans have identified what they believe to be a grievous abuse of executive power, something that’s worth suing over. You’ll never guess what it is. Ready?

They’re upset that Obama has postponed, by one year, the Obamacare rule that requires many employers to offer health coverage. The resolution rebukes Obama for “a failure to implement … the Affordable Care Act.” As Boehner ally Bob Goodlatte declared on Sunday TV, “The president is not enforcing the law.”

Translation: “We’re gonna sue the king for refusing to speedily enforce the same law that we’ve tried to repeal 50 times.”

This is the best they can do? To tie their shoelaces together and fall on their faces?

Apparently so. And the laughable irony of rebuking Obama for failing to enforce a law they hate, a law they don’t want enforced in the first place … that’s the stuff of satire.

The geniuses in the GOP don’t seem to understand that the House has virtually no legal standing to sue. According to well-established judicial precedent, a prospective plaintiff has standing to sue only if he can demonstrate that he has been adversely affected (“injured”) by the defendant. But the House and its members are not adversely affected by the decision to delay the employer mandate for an extra year. Put simply, it doesn’t affect House members at all. (Heck, it only affects companies that employ 50 or more full-time workers—a tiny percentage of small businesses.)

Plus, the courts have traditionally refused to settle political disputes between the legislative and executive branches. Most famously, the Rehnquist high court threw out a ’79 Republican lawsuit against Jimmy Carter.

As renowned Harvard law professor Laurence Tribe told The Washington Post last week, “it’s hard to imagine what conceivable remedy a federal court could possibly issue (in the Boehner lawsuit): an order directing the president to reverse course and implement the employer mandate sooner?”

Funny, I don’t recall that House Republican heads detonated in spring 2006, when President Bush summarily waived penalties and pushed back deadlines for low-income seniors affected by his new Medicare prescription drug law.

Bottom line is, administrative delays happen all the time. The employer mandate has been delayed until 2016—which means that even if Boehner’s lawsuit survives the usual slow crawl through the courts (a very remote scenario), he’d be declaring victory around the time the mandate will kick in anyway, and when Obama is set to leave office anyway.

So this lawsuit is just the latest manifestation of empty Washington theatrics, a way for Boehner to stave off the pro-impeachment knuckleheads and claim that he’s doing something. The hilarity of suing Obama for failing to enforce a law that Boehner and his minions have repeatedly tried to repeal— just priceless.

As Yale law professor Akhil Reed Amar tells Vox.com: “I see this (lawsuit) being covered as if it’s real, as if it’s somehow not a joke… At a certain point, I get to call Birther-ism. I get to call bull----.”

Dick Polman is the national political columnist at NewsWorks/WHYY in Philadelphia and a “Writer in Residence” at the University of Philadelphia. Email him at dickpolman7@gmail.com. His columns are distributed exclusively by Cagle Cartoons newspaper syndicate.



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