The GOP's Lawsuit Against Obama Is More Trouble Than It's Worth

Republicans have every reason to procrastinate on suing the president.

In June, House Speaker John Boehner said he planned on suing President Obama to defend “the institution in which we serve” from his executive orders, aka Obama’s “effort to erode the power of the legislative branch.”

Four months later, the president’s efforts to erode Congress have gone unchecked—as Politico reported Friday night, Boehner still hasn’t filed the House's lawsuit.

The suit focuses on whether or not Obama’s delay of Obamacare’s employer mandate is constitutional or not. House Republicans, who usually posit that the mandate is bad for businesses, argue the delay should have gone through Congress. The administration, and legal experts, argues that it’s legal to delay parts of the law to help smooth out the implementation process.

A few GOP lawmakers also opposed the effort, seeing it as expensive political theater. But the House approved the suit on July 30, and it was expected that the suit would be filed in mid-September. A Boehner spokesman declined to say what date Republicans are aiming for now, according to Politico.

“I thought this was a constitutional crisis and the republic was in jeopardy because Obama overstepped his bounds,” Democratic former House Counsel Stan Brand told the outlet. “Now, they can’t even get around to filing it?”

Part of the problem may lie in the troubled history of the suit. In mid-September, the GOP’s law firm dropped the case over “political pressure,” according to a Republican aide speaking to Politico. That same week, the Seventh Circuit Court of Appeals tossed out a lawsuit similar to the House’s from the Association of American Physicians and Surgeons. 

Politically, the lawsuit presents catch-22s for the GOP. First, the party has to choose between upsetting conservatives (some of whom support impeachment) by not suing the president or bewildering the rest of the country by suing the president.

A July CNN/ORC poll found that 65 percent of Americans don’t think the president should be impeached, 57 percent don’t support the lawsuit, and less than half of respondents thought Obama has gone too far with his executive orders. Fifty-six percent of conservatives were in favor of the impeachment, compared to 26 percent of moderates. 

The lawsuit was a compromise, but appeasement didn't really work. The pro-impeachment conservative wing of the party has been given voice by Sarah Palin, who told Breitbart News that “you don't bring a lawsuit to a gunfight.” 

Second, if Boehner had gone through with suing the president before the midterm elections, it might have help Democrats fundraise and motivate the liberal base even more than it already had. The Democratic Congressional Campaign Committee made $7.6 million in the month after the suit was announced, including $2.1 million in one weekend off emails warning of impeachment.

But if he waits until after the election, which seems to be the case, he risks making the issue irrelevant—ideally you would sue over the delay of the employer mandate while it’s still delayed. Runoffs could stretch the election season into December or January, and the mandate will go into effect in full for companies with 100 or more employees on Jan. 1 (companies with 50 to 99 employees won’t pay fines until 2016).

Now Republicans have to choose between actually going through with the plan or dragging it out like the Obamacare replacement that has also perpetually been right around the corner. Right now, by their definition, both options are falling well short of defending the institution House Republicans serve.

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