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Suing the President

July 31, 2014

After the House voted to move forward with a lawsuit challenging the right of this or any other President to arbitrarily change, disregard or implement laws without Congressional approval or even debate, both ardent supporters and detractors of President Obama immediately attacked the idea.

The DNC/progressive side has been fundraising with the message that the party faithful need to protect President Obama from a witch hunt, i.e. impeachment, while the far-right wing of the RNC/conservatives attacked Speaker Boehner for not impeaching the president, or alternatively, defunding Obamacare.

These three options are pretty much all the defenses to executive overreach available to this or any Speaker of the House. Boehner chose the middle area as the one most likely to succeed, although there is apparently some doubt about whether Congress can achieve legal standing to even bring the suit. So, why not one of the other alternatives?

First, no matter how many people dislike this president, his actions probably have not risen to the level of proof required for impeachment, at least not that has been disclosed to date.

Impeachment is an option on the grounds of treason, bribery, or high crimes and misdemeanors. The scope or description of the latter has never been specifically defined, other than by precedent. 

When Nixon was impeached, he was not impeached because some of his campaign staff broke into DNC headquarters in the Watergate. His “high crime or misdemeanor” was as accessory after the fact to a felony. Had he simply stood up and said that he did not condone and would not tolerate illegal acts by his people and turned them over to the Justice Department, he would have finished out his term. Instead he and his backers tried to cover it up and protect the perpetrators.

Essentially he was harboring criminals and tampering with the evidence of the crime,
and thus became complicit in their acts. Concealment of an illegal act is unlawful in any jurisdiction, so there was standing for the impeachment to go forward. Because it was a clear-cut and provable illegal act both sides of the aisle concurred in the decision to impeach Nixon.

It takes consensus in both houses of Congress to move an impeachment forward. The House brings the charges, but the Senate actually accepts the charges and judges the case. The verdict must be rendered by a two-thirds majority of the Senate to be official.

That dynamic is why there doesn’t seem to be a reasonable chance of impeachment succeeding at present.

That idea is a great fundraising call to action that ignores the facts. Given the political make-up of the Senate, no matter how compelling any evidence might prove to be, no impeachment process could move forward without the concurrence of the Senate. It probably wouldn’t succeed even if the mid-term elections flip the make-up of that body slightly to the right.

Then there is the option of summarily defunding Obamacare. That would truly energize the left, and probably a lot of people on the right and in the center as well, because it affects them directly.

Like it or hate it, the ACA provides health insurance to millions of Americans, even if it is through Medicaid. Take it away without substituting any plan or ability for them to pay for their healthcare, and there isn’t enough bandwidth out there to contain the furor.

Since some of the 340-plus House bills being blocked from consideration by the Senate deal with plans to modify the ACA, there is no likelihood that Republicans could provide a life ring for those people, making defunding a no-win choice.

Suing the President provides a way to clear up some of the legal ambiguities regarding what is or isn’t abuse of power by the executive branch.

It is a gamble, not only because it can be portrayed as an attack on this President personally, but because if the courts should come down with a definitive limit to executive power it will impact future presidents from both sides as well.

In that context, it isn’t about the current President personally, but about the power of the executive branch to dictate rather than govern.

It has serious consequences for the American people. If the courts decide the office of the President does have the power to make, disregard or amend laws without involving the Congress, most experts feel that’s pretty much the end of democracy as we have always known it.

If the decision went the other way, it would require that future Presidents be able to actually deal with both sides of an argument and broker compromises to get anything accomplished.

Looking at it from that angle, it is certainly to be hoped that Speaker Boehner has all of his ducks firmly in a row when it comes to having the suit accepted for judicial review. If this strategy fails, there is little likelihood that a similar attempt will be made in the foreseeable future.

Hopefully there is a court that considers the underlying theme of this lawsuit to be important in the historical context rather than just as political theater or party animosity.

History will judge the outcome of this lawsuit, or even the wisdom of filing it, in the context of events yet to transpire. Was it just a vehicle for energizing a political party in a contentious election cycle or a serious attempt to preserve our democratic processes? Time will tell.

From → op-ed

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