Dear House GOP: Don’t Sue Obama

, David Corbin and Matthew Parks , 2 Comments

House Speaker John Boehner’s idea to sue the president gained steam last week as the House passed, largely along party lines, a resolution authorizing a suit charging the president with failing to uphold his constitutional duties by unilaterally delaying the implementation of the Obamacare employer mandate.

boehner obamacare

The Left has expended much effort to show that the lawsuit is a gateway to IMPEACHMENT, despite consistent Republican protestations to the contrary. Five million dollars of online donations suggests President Obama isn’t the only one who believes his own baloney. But one might as easily argue that the speaker’s lawsuit is nothing but a ruse to protect the interests of establishment Republicans against attacks from Constitutionalists. An UNPRECEDENTED LAWSUIT might make a credible lead in the GOP’s own fundraising blasts and convince skeptics it is ready to fight back against the hegemonic presidency.

Of course, given our long history of sharp divisions between the executive and legislative branches, one might wonder why it took the House 225 years to come up with this idea. As Justice Scalia’s dissent in the 2013 Defense of Marriage Act case (U.S. v. Windsor) suggests, it may be because the lawsuit is only a lesser violation of the separation of powers—the very principle Boehner says he wants to uphold.

How to Handle Disputes Between Branches

President Obama’s Justice Department refused to defend the law in Windsor, which led to competing theories about whether and why the House Bipartisan Legal Advisory Group (BLAG) could take it up. Contrary to a more expansive ruling by the majority, Justice Alito argued that only “in the narrow category of cases in which a court strikes down an Act of Congress and the Executive declines to defend the Act, Congress both has standing to defend the undefended statute and is a proper party to do so.” Scalia (joined by Justices Roberts and Thomas) responded that Alito’s principles would allow for suits far beyond that “narrow category” and therefore, if followed, distort the means of engagement between the three branches of government.

What should the Congress do when contending with an unruly president? Scalia writes:

To be sure, if Congress cannot invoke our authority in the way that Justice Alito proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what “[a]mbition . . . counteract[ing] ambition,” The Federalist, no. 51 . . . is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit–from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “ . . . or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President. [emphasis added]

For those keeping score at home, there’s four probable votes—conservative votes—from the nation’s highest court against the House suit before we even get to the merits (Justice Alito’s conditions aren’t met in the prospective Boehner case). Counting on the four liberals and the other (Justice Kennedy) to team up on a rebuke of President Obama? It’s hard to imagine a shot in the dark less likely to find its target.

The Federalist Discusses the People’s House

Justice Scalia relies heavily on The Federalist in his opinion, citing three essays on the separation of powers (48, 49, and 51) and one on the role of the judiciary (78). Were the Boehner case to reach him, he might look to its essays on the House of Representatives (52-58) for further help, which provide a clear portrait of what is expected from the people’s house.

Federalist 55 is the first of four essays responding to objections related to the size of the House, which would have only sixty-five members until the first census was taken. Was this number dangerously low? James Madison argued “no,” although this answer was conditioned on the number expanding rapidly in the years to come (as the constitutional maximum of one representative per 30,000 people was applied to a population doubling every 25 years). Madison, in fact, had unsuccessfully proposed a doubling of the number of initial representatives (to 130) in the Constitutional Convention to ensure a fuller and more responsible representation of the people. On the other hand, he had successfully opposed a motion which would have guaranteed states forever one representative for every 40,000 people, on the grounds that it would eventually prove unsuitable (requiring today, for example, an 8,000-member House!). Madison, in other words, was thinking about today and many tomorrows, attempting to ensure that the House would faithfully protect the rights and interests of the public at large as long as the Constitution survived.

This was no easy task, in part because a simple ratio, like the one Madison’s Convention colleague had proposed, could not be found that would be suitable to populations of all sizes and republican governments of all descriptions (federal, confederate, or consolidated). But it was made even more difficult because populations of the same size with republican governments of the same description need not possess the same character:

As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.

Quality, then, matters at least as much as quantity. Madison was confident that “the liberties of America” were safe in 1788; “[w]hat change of circumstances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes no part of my pretensions.”

House Leaders Doubt Public Opinion

Which brings us back to our current dilemma. Partisans of republican governance have, of necessity, put their trust in the Republican leadership to defend the Constitution. And yet it seems that the highest ranking Republican leader has much less interest in a constitutional than in a cable television confrontation with the President. Why?

The most likely explanation is that Boehner and most of his colleagues in the House Republican leadership doubt their ability to defeat President Obama in the court of public opinion if and when they take up their real constitutional tools. Better to use the lawsuit to signal to voters their displeasure with an unpopular president on the upcoming pre-election county fair circuit than to risk their own political fortunes in a direct confrontation.

The actions taken by the president and his defenders to try to provoke a more serious response—from fundraising appeals to press conference taunts and threats of a massive unilateral immigration amnesty—suggest they too believe that a constitutional give-and-take between the legislative and executive branches is a political suicide mission for Republican legislators.

Perhaps, but the president might also calculate that a good part of the Republican leadership’s ambition is personal, rather than institutional. Risk-averse Republicans might be expected to behave like the mercenary troops Machiavelli warned about who “want to be your soldiers while you do not make war; but when war comes they want either to flee or to go away.” Armed mercenaries won’t risk their bodies, and political mercenaries won’t risk their offices, against dangers real or imagined, because they love their own lives more than your cause.

Conservative and libertarian proponents of limited government must be as equally clear-sighted about the nature of ruling class Republicans as the president. It wasn’t too long ago that “comprehensive immigration reform” was inevitable. And then Dave Brat sent Eric Cantor into an early K Street retirement. Republicans recalculated, and “comprehensive immigration reform” became impossible. It turns out that mercenaries can sense danger on their right as well as their left.

There is a limit, of course, to how much good can be done by the timely application of political pressure to those otherwise unwilling to embrace it, especially when there may be as much political pressure and a lot of ruling class social pressure in the opposite direction. At some point we return, as Publius does so often in The Federalist, to the people, who must cherish self-government in order to preserve it. We need House Republicans willing to confront an imperious president and a virtuous people ready for the fray.

David Corbin is a Professor of Politics and Matthew Parks an Assistant Professor of Politics at The King’s College, New York City. They are co-authors of “Keeping Our Republic: Principles for a Political Reformation” (2011). You can follow their work on Twitter or Facebook. Their original article appeared on The Federalist.

  • terry1956

    I Think Madison was wrong about the number of US House members.
    65 was to low then, 435 is to low now.
    8,000 would be much better today, 10,000 plus or 1 district/ 1 rep for every 30,000 people would be better ( the current Constitutional minimum ratio), with a Constitutional Amendment 1 for every 300 would be much better.
    Yes I know that would mean over 1 million Congressional districts with a US House member from each of the districts but I’ve read the ratio of lawyers to Americans is 1 to every 400 and most are government lawyers, then add those private insiders to the government, the various type of lobbyist.
    Jude W annski one of the great supply side economist pointed out the large number of lobbyist types in DC.
    Also in the amendment repeal the 17th amendment and require a 80% vote of both the House and US Senate to pass a bill.

    80% could overturn a presidential veto but they would have to wait say a month to over turn the veto unless its a declaration of war and the funding of that war.
    80% is the Knut Wicksell’s minimum threshold of taxation consent although a jury of 12 still could refuse to give the government permission to deprive an individual case defendant of their property under proper American common law due process and the US Constitution’s 5th, 6th, 7th, 9th and 10th amendments with article 3 mandating a jury trial in all cases except impeachment of federal official holders and other federal officials.
    It just takes 1 jury member out of 12 to refuse to convict but the prosecutor can retry the case unless all 12 refuses to convict so in theory a case could be retried until the number of possible jury pool members ran out.
    The defendant should also have a right to demand the trial be held in the vicinage ( no further than the county) and that the jury come from that vicinage.
    So in theory if 1 out of 12 in a jury pool does not like the tax they could prevent conviction until the number of jury pool members increases and the ratio changes in favor of conviction.
    1 out of 12 is eight and one thirds of a percent and the median population size of the 3000 plus counties is less than 35,000.
    8% seems like such a small number but there are well over 200 million adult citizens in the US and 8% of 200 million is 16 million which is more than the total population of a super majority of the states.
    Yes I doubt very much the 1 million could meet in DC but today there is no need to.
    I also favor a 1 to 300 ratio for one branch of the Tennessee State Assembly or over 20,000 state districts and 1 rep for each.
    The number of allowable representatives in the state house and state senate has not changed in Tennessee since 1870.
    The other branch should give 1 representive to each of the 95 counties.
    An 80% vote of both branches of the Tennessee General Assembly should be required to pass a bill.
    Of course Congress would have to take a big cut in pay even 100,000 a year would be over 100 billion dollars, the average social security payment of 15,000 a year would be about right and it might be better if most of the million plus are senior citizens.
    Since the state assembly would pick the Two US Senators its best the state pay the Two US Senators but the pay should be the same for all US Senators in the US.
    The State Assembly should also be allowed to recall their Senators at any time.

  • terry1956

    Ok it looks like my stats on the percentage of lawyers in government was wrong going by 2005 American Bar Association stats.
    The ABA reported only 8% in government but it also reported 3% in the Judiciary which is the government so that’s 11% in government.

    49% of those in private practice had no partners
    Now the number of lobbyist in the DC area is harder to come by.
    Is the 11,162 registered number correct or the 100,000 number reported by James Thurber who advises the ABA?
    Even if the first number is correct that still would show that Americans have low representation in the US House with an average of 1 for over every 700,000 people.
    With 11,000 US House members and districts that would be 1 for every a bit less than 30,000 people.
    The cost of campaigning would greatly decrease and a great deal more people could actually see and talk to their rep.
    The number of lawyers is reported at over 1.2 million which averages around 1 for every 260 people.
    With a Constitutional Amendment requiring 1 US House member and district for every 300 people then campaign cost would be very low.
    With an average of around 1 per 100 households someone running could spend hours with each household if necessary and do the same if elected.
    If the state house also had an average of 1 representive per 100 households this would be in keeping with the old Anglo/Saxon hundreds represention which Jefferson spoke of or maybe a little better since the average would be 2 per 100 households and you could even have maybe 4 with 1 per 100 to one branch of the county and 1 per 100 to one branch of local government.
    Its a good idea to keep the Senate numbers low and have them be representatives of areas such as states for the US, counties for the state, townships for the county and neighborhoods for local with both branches picking the senator or senators and the authority of those two branches to automatically recall their senator or senators.
    As far as the House it would be better to go with 1 year terms.
    The Senate could stay 6 years but since the state legislator could automatically recall reducing the number of years from 6 is not important.