The Speaker started a joke which started the whole world crying, but didn't see that the joke was on him

>> Monday, July 21, 2014

We're not going to sit idly by while this president chips away at the very foundation of our democracy, which is why the House is now initiating legal action to compel the president to follow his oath of office and faithfully execute the laws of our country.

While the president would like you to believe that this is some kind of Republican stunt, let me be clear – this isn't about Republicans versus Democrats; it's about protecting the Constitution.

And when I heard the president respond to our plan with a lighthearted, "So sue me," – I was extremely disappointed.

This is no joke, Mr. President.
Cincinnati Enquirer, July 15th, 2014.

Yes, it is.  It's totally a joke.  Which is why I've been wondering if I should even publicly react to it.  And, yeah, it is some kind of Republican stunt; it's just that it's a little hard to grapple with what kind of Republican stunt, because it's such a stunning bit of dumbness.

Because, see, first of all: if you're in the House of Representatives and you sincerely believe the President is failing to "follow the oath of his office and faithfully execute the laws of our country," then it's probably time to have a long, hard and serious look at whether that doesn't constitute the commission of "high crimes and misdemeanors" under Article II, Section 4 of the Constitution.  I mean, it's admittedly not cut and dried, because one of the many, many deficiencies of the Constitution is that the Founders were intentionally vague about the impeachment clause, and "high crimes and misdemeanors" is an expression they calculatedly chose for its vagueness.  Does it mean actual high crimes, and actual misdemeanors under the law, like assault or larceny, or is it a term of art referring to things like accepting bribes, or does it mean nothing and everything like Gerald Ford once said?  You can argue about it all day, if you really want to.

Although, as a practical matter, the fact it's vague and you can argue all day is exactly why the Boehner can do it if he really wants to.  The argument's there, right there in the open for anyone to see it, that dereliction of duty and abuse of authority count as "high crimes and misdemeanors," and it's really left to the person who says they don't count--assuming, you know, there really is dereliction and abuse--to make the Constitutional or historical case that they aren't.

Of course, Boehner doesn't actually want to impeach the President, see?  This is the thing.  He knows damn well that the trial would happen in the Senate, where the Democratic majority would toss the Bill of Impeachment.  Assuming he could get the Bill of Impeachment, which isn't even a certain thing with the Republican majority in the House.  He knows he'd be setting an ugly precedent for the next time Congress and the President weren't getting along.  He knows that even with the President's plunging ratings, the President is popular enough for an impeachment sideshow to generate really bad optics for the GOP, that it would look exactly like a partisan hackjob (which is exactly what it would be, of course).  He knows it would be a sideshow, and that even some Republicans would consider it nothing more than a distraction, quixotic at best and irresponsible at worse.

Indeed, this is why I, myself, am getting to where I'd welcome impeachment proceedings.  Because we ought to just get all this ugly shit out in the open where we can see what we've been smelling the past several years.  Because if the House Republicans are going to steam and screech and pop rivets on the edge of supercriticality, let's just get the blinking meltdown over with, already, or whatever it is that needs to happen so we can shut the reactor down and send in a hazmat crew to spray out D.C..  I'm tired of the sound and fury of these idiots, signifying nothing, and I'm ready to just have all these crazy uncles in Congress committed where we can ignore them between obligatory Christmas season visits and the occasional sending of cards.  That's three metaphors in as many sentences, do you get the picture?  I'm all for impeaching Obama, not because I think he's actually committed any impeachable offenses I'm aware of, but because it would pretty much blow up the most useless Congress of my lifetime so we could start over, it would get these sad fucks to shoot their wads and shut up, it would clear the air and maybe (just maybe) we could all get on with our lives.

(Probably not, but I'm trying to be sunny.)

The second thing would be that the House certainly has plenty of things they can do short of impeachment, while they're at it.  This gets a little baroque, I imagine, because you can have a situation in which the House is passing legislation to force the President to implement certain policies, only to have it stopped in the Senate or vetoed by the President himself, which makes the whole business a bit quixotic on the part of the House, but it's the way our government was designed.  Also, the silliness here is actually even more baroque and absurd than that, since some of the laws the President supposedly isn't implementing are schedules connected to the Affordable Care Act, which the House has been trying unsuccessfully to roll back or revoke: so, where the situation I described a sentence ago is kind of the abstract political scenario, the real and pragmatic scenario is that if John Boehner were serious about forcing the White House to implement the ACA on schedule, they could (for instance) author legislation giving the President more resources to do it, which I'm sure the Democrats in the Senate would pass and the President would sign off on.

Which gets to the third and fourth reasons this whole lawsuit thing is a lousy joke, which is that the House doesn't have standing to file a suit like this to start with, seeing as how they can't really claim any recognizable injury the courts have the power to address, and even if they could get their suit past a motion to dismiss for lack of standing, they'd lose on the motion to dismiss because the case involves a political question that American courts traditionally leave to the other branches of government.  It's a separation-of-powers issue: courts do what courts do, and expect legislatures and executives to do what legislatures and executives do.

This isn't a law blog, and I'm quite sure you can find other commentators who will explain this better and at greater length.  The quick-and-dirty, if you don't want to follow the Wikipedia links in the previous paragraph, is that you can't just file a lawsuit in an American courthouse for any old thing; and among other things that you may need before you can file your lawsuit, one is that you have to be an injured party (or at least be extremely likely to come to some foreseeable harm as a consequence of what someone else did), and another is that your issue needs to be a legal one, that is to say it has to be something a court is qualified to hear.  A legislative body passing a law and then getting upset (or pretending to get upset) because it wasn't implemented as it was supposed to be can't cut it as grounds for a suit, because (1) the injured parties are the people actually affected by the law, and (2) a legislative body has remedies through the political process--they can repeal the law, or amend it, or repeal it and pass a "better" one, etc..

In sum, "sitting idly by" is exactly what Boehner is doing with this whole silly thing.  Or almost idly: it's that form of goldbricking where you try to look very busy while you're doing nothing and you know damn well you're doing nothing, and anybody who knows the least thing about what you're supposed to be doing knows damn well you're doing nothing.  And while Boehner doesn't strike one as the brightest bulb on the Xmas Tree, I'm reasonably certain he knows enough about his job to know what he's doing is stunt politicking, and even if he somehow doesn't, any lawyers he's talked to surely remember standing and political questions and justicability from their 1L years of law school well enough to scratch their heads and say, "Mr. Speaker, I'm pretty sure you can't do that."  (It's such a no-brainer, I find myself wondering if a lawyer who files this suit is exposing himself to sanctions, honestly.  It's been twenty years--twenty years!!--since I took a CivPro class, and I still remember Rule 11, Ken Broun beat it so deeply into my thick skull.  Thou shalt not fucketh around with Rule 11, lest Rule 11 fucketh around with thee.)

It's a joke, it's a stunt, if you expected anything more of them it'd be a pity.


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