The Main Attraction?

Speaker of the House John Boehner (R-OH8)

“Just because some Republicans want to pretend that before January 2009 presidential power had been limited to pardoning Thanksgiving turkeys doesn’t mean they are right.”

Jonathan Bernstein

And the hits keep coming. ‘Tis a bold headline for Bloomberg View: “Boehner Betrays Congress”, and Jonathan Bernstein leaves little room for doubt about his perceptions:

I’ll say it again: Speaker John Boehner and House Republicans aren’t asking for authority to be returned from the White House to Congress. They want an imperial judiciary that could trump either of the elected branches.

Jonathan Bernstein (via BloombergView)In a system of separated institutions sharing powers, which is what the Constitution created, all three branches do things that look a lot like legislating, but laws can trump administrative or judicial rule-making. That gives Congress serious clout within the system. This lawsuit, however, is an abdication of that clout. In effect, it says that the courts, not Congress, should have the last word when there’s a dispute between branches.

Filing this lawsuit amounts to institutional treason. Boehner and House Republicans should be ashamed. The rest of us can only hope that the courts rescue them by keeping to precedent and tossing this lawsuit into the garbage.

To the other, the suit is filed. In a way, that is actually surprising. It is not quite that it seems like yesterday that House Republicans found themselves in need of a new lawyer after the one they hired quit the case, owing to the sort of political pressure one’s law firm might apply when one is about to publicly humiliate the firm with an act of juristic malpractice; it wasn’t yesterday, but two months ago. After hyperpartisan lawyer David Rivkin quit the case for having bitten off too much hyperpartisanship for his firm, Baker Hostetler, to chew, the GOP turned to William A. Burck of Quinn Emanuel Urquhart & Sullivan, who had just finished the laborious task of failing to defend former Virginia First Lady Maureen McDonnell.

Late last month, then, we learned that Mr. Burck was also stepping down. Josh Gerstein and Maggie Haberman of Politico summarized the situation thus:

Rivkin’s firm withdrew in September after health-care-related clients pressured the firm to back out of representing the House in the Obamacare-related suit. Two sources told POLITICO in recent days that a similar scenario played out with Burck’s firm, with clients bringing pressure to get the firm off the case.

How about three days ago? Is that close enough to feel like yesterday? For whatever reason, Jonathan Turley of George Washington University decided to take up the case. Lauren French of Politico reported ot Tuesday:

“Professor Turley is a renowned legal scholar who agrees that President Obama has clearly overstepped his constitutional authority,” said Michael Steel, a spokesperson for Speaker John Boehner. “He is a natural choice to handle this lawsuit” ....

.... “Even for $500-per-hour in taxpayer dollars, Speaker Boehner has had to scour Washington to find a lawyer willing to file this meritless lawsuit against the president,” said Drew Hammill, a spokesperson for Minority Leader Pelosi. “Now, he’s hired a TV personality for this latest episode of his distraction and dysfunction.”

Yeah, talk about ouch. Still though, one might be inclined to wonder why, if Turley is “a natural choice to handle this lawsuit”, why he was third on the list, and, furthermore, why it took three weeks to hire him after Burck’s departure.

And, yet, apparently he could manage in three days what two other lawyers couldn’t figure how to accomplish over the course of four months.

Maybe it is simply a matter of timing; perhaps Burck simply left too early, and House Republicans wanted to wait until after the election to burnish their laughingstock credentials. But three days ago, we learned that Jonathan Turley was on the case, and today he actually filed the suit.Jonathan Turley of George Washington University.

As we noted last month, the two-pronged strategy here seems to be to reiterate the GOP’s delegitimizing narrative against President Obama, and raise funds. Consider how it goes when conservative ballot measures lose in court; we hear the gnashing and wailing of souls infuriated at the prospect that, say, a bunch of voters in Colorado cannot decide to throw out the U.S. Constitution (Romer v. Evans). Remember also that “liberal judicial activism” is one of those fundraising cries that even applies to the U.S. Supreme Court upholding a decision by an exceptionally conservative state Supreme Court (Roper v. Simmons). Turley will file, and the suit will either be tossed or shredded at trial, and either outcome will provide grist for the GOP swindle-mill.

And, yes, conservatives will send money like good little marks are supposed to.

This is how it goes, and yes, this is what people voted for earlier this month.

The suit is House of Representatives v. Burwell et al., was filed in the U.S. District Court for the District of Columbia, and is posted at Mr. Turley’s blog. As comedy goes, it is morbidly creative.

Beyond the President’s role in the presentment process [to sign or veto legislation], the Constitution does not permit the Executive Branch to enact laws, or to amend or repeal duly enacted laws, including by adopting rules or taking other unilateral actions that have such an effect.

One wonders how Mr. Turley will answer the constitutionality of President George W. Bush’s executive order delaying implemenation of Medicare Part D.


Bernstein, Jonathan. “Boehner Betrays Congress”. Bloomberg View. 21 November 2014.

Gerstein, Josh and Maggie Haberman. “More turmoil for House GOP lawsuit against Obama”. Politico. 29 October 2014.

French, Lauren. “GOP hires legal scholar to oversee Obama lawsuit”. Politico. 18 November 2014.

Turley, Jonathan. “Complaint”. House of Representatives v. Burwell et al. 21 November 2014.

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