Armchair Political Theatre

The House has hired a new lawyer to prosecute its lawsuit against President Obama after previous counsel bowed out, citing political pressure, the House Administration Committee confirmed on Friday (David M. Drucker, 19 September 2014)

The question does arise at some point whether anybody but the wonks and politigeeks are paying attention. And a notion does mutter and creep about insinuating all manner of analogy ‘twixt political talk radio and sports radio. But setting aside the elderly woman who once railed against local sports radio hosts because laughing at the idea of stock car racing—Go fast! Turn left!—was somehow akin to “what happened to the ‘Coloreds'”, there is a different sort of comparison. That is to say, one might have far more associates who listen to sports radio without ever calling in, but discuss various issues with enthusiasm and detail verging on the excruciating. They might not be calling in to compare NASCAR to the Civil Rights movement, but they will talk their favorite teams and leagues as if the soul of the world depends on whether or not this or that trade makes sense, or the subtleties of whether this power-hitting manager knows how to handle his pitchers.

Try it this way: Once you move beyond that majority portion of the audience who just, say, learned Roger Goodell’s name this month, or found that American pro sports leagues have ‘commissioners’, you might find some who are willing to give you an in-depth analysis of, for instance, how David Stern screwed Seattle twice, or what the NBA commissioner has to do with the politics of getting an NHL franchise in the Emerald City.

Imagine if people paid that kind of attention to public affairs. No slam dunks, merely metaphorical five-holes, and considerably less domestic violence; public affairs just aren’t sexy … well, unless there’s a sex scandal going on.

But to the armchair wonks, David M. Drucker’s lede for the Washington Examiner last Friday is hilarious:

The House has hired a new lawyer to prosecute its lawsuit against President Obama after previous counsel bowed out, citing political pressure, the House Administration Committee confirmed on Friday.

It is, to a degree, jaw-dropping news. Then again, the drooling astonishment is really more of a cumulative effect.

The story so far: House Republicans would very much like to impeach President Obama. The functional problem with that idea is that they really have no grounds. What House leaders have come up with, instead, in order to placate the “kuckleheads” hardlining his right flank, is the idea of filing suit against the president. There are a number of problems with that idea:

History: Consider recent history, when Democrats compromised to push through the Bush administration’s reform of the Medicare system. As with any such large legislation, there were problems. Setting aside the basic contrast of attitudes, there is also a particularly important fact of history in the tale; Steve Benen explains:

But there was one angle in particular that Stein flagged that I’d forgotten about: when Plan D implementation struggled, the Bush/Cheney administration unilaterally extended deadlines and waived penalties – relying on nothing but executive discretion and regulatory authority.

Why is this important? In general, it’s not, except now that the Obama administration is taking similar steps, Republicans are characterizing it as the end of our constitutional system of government.

Former House Majority Leader Eric Cantor (R-VA7) seeks handsome contemplation while Speaker John Boehner (R-OH8) fades away.Congressional Power and Will: It’s true, Congress has the power to change the problematic parts of the PPACA, but this is where basic contrasts of attitudes come back into play. The House Republican Caucus is such a rowdy bunch that when the leadership recognized the need to actually do something to prevent society from taking a hit from one of the drafting or arithmetical glitches in Obamacare they had to trick their own membership, with help from Democrats. If the suit is heard—see below—questions will arise compelling Congressional Republicans to admit either that they want the fire and brimstone they’ve been predicting, or that they are simply incapable of passing the legislation they feel is necessary to fix the situation. Oh, right, and they would also have to answer for why they don’t follow the available constitutional remedy, which is to draft those articles of impeachment. Round and round and round about.

Where’s the Suit? Nigh on two months after resolving to sue the President of the United States, the House of Representatives has yet to file.

Very Recent History: A three-judge panel on the Seventh Circuit Court of Appeals dismissed a lawsuit by the Association of American Physicians and Surgeons that similarly challenged President Obama’s executive authority to delay implementation of the employer mandate. To the other, the court dismissed the grievance as a matter of standing according to the relationship between who the plaintiffs were and who would be affected by the outcome they desired; Judge Frank Easterbrook wrote in the decision:

Plaintiffs would be the wrong persons to litigate even if they had standing. Only persons seeking to advance the interests protected by the mandatory-insurance portions of the Affordable Care Act would have a plausible claim to relief . . . . Yet plaintiffs, who do not accept insured patients, want to reduce rather than increase the number of persons who carry health insurance. Someone else would be a much more appropriate champion of the contention that the IRS has note done what it should to accomplish the statute’s goal of universal coverage.

The Congressional claim would posit a different grievance; it is unclear whether the AAPSI dismissal suggests anything about the House tort claim we have yet to see.

Amid this comedy of errors, attorney David Rivkin is stepping down as the legal engineer of the House’s snipe hunt. Jason Easley of Politics USA frames the story, “John Boehner’s Lawyer Quits Because Lawsuit Against Obama Could Harm His Credibility”. Ashley Parker of the New York Times explains the detail:

House Republicans on Friday replaced the firm handling their lawsuit against President Obama after the lawyer representing them pulled out over what was said to be political backlash among his colleagues at the firm, Baker Hostetler.

The lawyer, David B. Rivkin Jr., had taken the case on behalf of House Republicans in August, right after they voted to sue the president, accusing him of overstepping the powers of the presidency. Two people with knowledge of the situation said Mr. Rivkin withdrew from the case under pressure after facing criticism that he had taken on an overly partisan lawsuit. Some members of the firm feared the case against Mr. Obama could drive off potential clients and hurt Baker Hostetler’s credibility, according to one of the people with knowledge of the case. Both people said they were prohibited from publicly discussing such a delicate case.

Perhaps even more than the AAPSI dismissal, this would seem somewhat bad news. That is, Rivkin, a controversial lawyer and conservative political advocate in his own right who has already challenged the individual mandate in federal court, had apparently gone too far out on a limb for the comfort of his fellows at Baker Hostetler.

And why would they be comfortable? Parker continues the narrative:

After Mr. Rivkin took the case, Baker Hostetler was parodied by Jimmy Fallon on the “Tonight Show,” which broadcast a fake commercial in which an ambulance-chasing lawyer tries to come up with Obama lawsuits and urges viewers to call a toll-free number.

“At Baker Hostetler, we specialize in one thing — suing the president,” the faux infomercial says. “For instance, have you ever been forced to pass Obamacare, even though you didn’t like it? We can help you waste thousands of dollars in taxpayer money to fight for what you sort of believe in.”

Law firms as laughingstocks are always interesting nexes of circumstance.

But wait … there’s more.

Yes, really. Then again, it is just a small detail sordid only to those who attend the political theatre, and have witnessed what Rep. Louise Slaughter (D-NY28) rightly describes as “a sorry spectacle of legislative malpractice”.

Attorney William A. Burck, right, represented Maureen McDonnell, wife of former Virginia Governor Robert McDonnell, in the corruption trial. Burck has been retained as the lead outside attorney in a House Republican initiated lawsuit challenging as unconstitutional Obama's 2013 decision to unilaterally delay the implementation of the Affordable Care Act's employer mandate. (AP Photo/Steve Helber)That detail is simply that the new attorney brought on board to guide the House in its latest misadventure is William A. Burck of Quinn Emanuel Urquhart & Sullivan. Recently, Mr. Burck represented former Virginia First Lady Maureen McDonnell in her unsuccessful bid to shoulder the blame for felonious corruption and thereby avoid conviction.

And for those so inclined to attend narratives actually touching on issues like quality of life and the health of our societal endeavor, this really is a spectacle of morbid hilarity.

It’s not like Speaker Boehner and the House of Representatives have anything better to do, right?


Yes, really. Then again, it was a different century, a different world: Seattle, circa late nineties.

Democrats in Congress worked with their Republican fellows to try to fix the problems; compare this to Speaker Boehner, who to the one conceded that the PPACA was the law of the land, but then went forward to make the point by refusing to fix identifiable errors; see the “family glitch” and “Vitter Amendment” for examples.

Even in places like Seattle, the fact that Majority Leader Cantor (VA-7) has actually left Congress before the end of his term, having lost a primary challenge from his right flank does not seem to carry much significance beyond the armchair wonks and fantasy-league pundits. Not only did he lose, he quit his job and left early. Is it significant that Cantor led the Republican side of the “doc fix” maneuver? Perhaps.

Drucker, David M. “House hires new lawyer for Obamacare suit”. Washington Examiner. 19 September 2014.

Benen, Steve. “Boehner laments ‘knuckleheads’ within House GOP”. msnbc. 17 September 2014.

—————. “Where the parallels end”. msnbc. 17 February 2014.

Marcos, Cristina. “House votes to sue Obama”. The Hill. 30 July 2014.

Beutler, Brian. “House Republicans Are Quietly Giving in to Obamacare”. The New Republic. 7 April 2014.

—————. “Why Eric Cantor Lost”. The New Republic. 11 June 2014.

Haberkorn, Jennifer. “Court tosses Obamacare mandate lawsuit brought by doctors”. Politico. 22 September 2014.

Easterbrook, J. Frank. Association of American Physicians and Surgeons, Inc. and Robert T. McQueeny v. John Koskinen. United States Court of Appeas for the Seventh Circuit. 19 September 2014.

Easley, Jason. “John Boehner’s Lawyer Quits Because Lawsuit Against Obama Could Harm His Credibility”. Politics USA. 22 September 2014.

Parker, Ashley. “Republicans Switch Firm Handling Obama Suit”. The New York Times. 19 September 2014.

Dvorak, Petula. “Maureen McDonnell: Newly convicted and utterly silent”. The Washington Post. 4 September 2014.

Maddow, Rachel. “Congress ducks duty as US military engages ISIS”. The Rachel Maddow Show. msnbc. 18 September 2014.

Kennedy, Kelly. “‘Family glitch’ could mar health law”. The Clarion-Ledger. 23 September 2013.

Eichelberger, Erika. “GOP Staffer on Vitter Amendment: ‘Congress Literally Threw Staff Under The Bus'”. Mother Jones. 30 September 2013.

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