So far, President Obama has made great sport of the lawsuit House Republicans are planning against him.
He calls the lawsuit a “political stunt” and a distraction from the important matters Congress should be addressing. And the boon to Democratic coffers is beyond doubt. Since June 25, when House Speaker John Boehner (R) of Ohio announced his intention to sue Mr. Obama, the House Democratic campaign committee alone has raised $7.6 million. Talk of impeachment, started by the far right and magnified by Democrats, has only opened the money floodgates wider.
But while impeachment chatter isn’t serious, the lawsuit is – and cannot be dismissed lightly by the White House, even if its chances of success are low, political analysts say.
“The administration has to treat this seriously, and that will take up some of its time and emotional energy and focus,” says Cal Jillson, a political scientist at Southern Methodist University in Dallas.
It also can’t be ruled out with 100 percent certainty that the lawsuit will fail, even though many legal scholars predict it will be thrown out over Congress’s lack of “standing” – the right to bring suit in the first place.
The lawsuit, not yet filed in court, will accuse Mr. Obama of exceeding his constitutional authority – specifically, for delaying the employer mandate in the Affordable Care Act (ACA) without going through Congress. The Republican-led House approved the suit on Wednesday.
But beyond the specifics of the suit, the expected legal action will also focus attention on the larger question of Obama’s wide use of executive power. The president blames Republicans in Congress for being unwilling to compromise, leaving him no choice but to use his “pen and phone” to get things done.
Critics call Obama an imperial president, and their list of grievances is long. To name just a few: He employed “prosecutorial discretion” to delay deportation of hundreds of thousands of young undocumented immigrants. He unilaterally changed several elements of the ACA, not just the employer mandate. He declared an anti-gay rights law unconstitutional. He altered the work requirements under welfare reform.
Indeed, the Supreme Court slapped down Obama and his administration more than once in the term that just ended. The justices ruled unanimously that the president had exceeded his authority in making temporary appointments to the National Labor Relations Board during a short Senate recess. The high court also ruled that the Environmental Protection Agency had exceeded its authority when it changed the emissions limit for greenhouse gases as prescribed by the Clean Air Act.
Even if the lawsuit against Obama is largely perceived in a political context, coming within months of the November midterms, some legal scholars see vital constitutional issues at stake.
“The lawsuit is necessary to protect the Constitution’s separation of powers, a core means of protecting individual liberty,” write David B. Rivkin Jr. and Elizabeth Price Foley, lawyers advising Boehner on the suit, in an op-ed in The Wall Street Journal. “Without a judicial check on unbounded executive power to suspend the [ACA], this president and all who follow him will have a powerful new weapon to destroy political accountability and democracy itself.”
Whether the public will pay attention to the lawsuit and the message it contains is another matter. As on most issues, there’s a wide partisan divide in public perceptions: 75 percent of Republicans favor the lawsuit, compared with 12 percent of Democrats and 43 percent of independents, according to a CNN/ORC International poll released last Friday. Taken together, 41 percent of Americans think the House should sue Obama.
The poll also found a plurality of Americans – 45 percent – believe the president has “gone too far” in expanding the power of the presidency.
For Boehner, the biggest danger of the lawsuit is that he alarms Democratic voters into turning out in November. While the House appears safely in Republican hands, the Democrats’ hold on the Senate is tenuous. Democrats are famous for low turnout in midterms, and so the lawsuit gambit – which has opened the door to impeachment talk – appears to be a gift.
But there’s a joint danger for both Republicans and Democrats in the lawsuit: Americans may just look at Washington and say “a pox on both your houses.” The nation’s capital is already gridlocked, and the lawsuit just makes the picture worse.
Outside the Beltway, Obama uses Congress – and the Boehner lawsuit – as a foil to rally the public.
“Think about this – they have announced that they’re going to sue me for taking executive actions to help people,” Obama said in a speech at a theater Wednesday in Kansas City, Mo. “So they’re mad because I’m doing my job.”
That argument may rally diehard supporters – who are likely to vote in any case – but for the marginal voter, the highly partisan tone (from both parties) may be a turnoff.
So there’s no guarantee Obama and the Democrats benefit politically. And they do have something to lose.