The 'So Sue Me!' President
Before President Barack Obama had even uttered the details of his immigration plan, Republicans were threatening to take him to court. The next morning, Obama found himself a defendant on an entirely different matter as House Speaker John Boehner filed his long-awaited health care lawsuit.
These days, Republicans seem more eager to sue than an ambulance-chasing attorney. The win-loss record in court breaks heavily in favor of the president. No matter; the cases are actually targeted to the court of public opinion. Republicans want to show their base that they are fighting Obama without getting their hands dirty by passing real legislation on some of the biggest issues of the day: health care, gay marriage and immigration. Crucial swaths of presidential voters—minorities, independents and young people—align more with Democrats on those issues, so ahead of the 2016 contest, Republicans are seeking judicial asylum.
"They need to show the conservative base that they are doing something—that they're not just whining, they're taking action," said Stuart Rothenberg, a political analyst and publisher of a report that bears his name. "There are people in the party who understand what can and cannot get done with a divided government in Washington. But the base demands the president be held accountable, and the courts seem like a reasonable place to handle differences of opinion." These efforts aren't entirely cynical, he said. "There's a sincere belief that Obama has exceeded his authority."
Obama understands this GOP playbook and has taken to dropping a "so sue me" laugh line into speeches.
"And as long as they insist on taking no action whatsoever that will help anybody, I'm going to keep on taking actions on my own that can help the middle class, like the actions I've already taken to speed up construction projects and attract new manufacturing jobs and lift workers' wages and help students pay off their student loans," Obama told a Washington crowd on July 1. "And they criticized me for this. Boehner sued me for this. [Laughter.] And I told him, I'd rather do things with you, pass some laws, make sure the Highway Trust Fund is funded so we don't lay off hundreds of thousands of workers. It's not that hard. Middle class families can't wait for Republicans in Congress to do stuff. So sue me. [Laughter.]"
State attorneys general kicked off the Republican courthouse march by filing a slew of lawsuits after Obama signed the 2010 Affordable Health Care Act, better known as Obamacare.
Incoming Texas Governor Greg Abbott liked to tell people that as the state's top attorney his daily agenda was, "I sue the federal government, and I go home." He has tried to overturn everything from the individual mandate portion of the health care law to federal restrictions on red snapper ocean fishing. Voters apparently like his style. He just defeated Democratic challenger Wendy Davis by 20 percentage points in the governor's race.
Boehner escalated the legal threats in June, saying he was fed up with what he perceived as Obama's penchant for executive overreach. “On matters ranging from health care and energy to foreign policy and education, President Obama has repeatedly run an end-around on the American people and their elected legislators, straining the boundaries of the solemn oath he took on Inauguration Day,” Boehner said in a June 25 "memo to House colleagues on the separation of powers." Jonathan Turley, who represents the House in the Obamacare case at rate of $500 an hour and is a self-described liberal, wrote on his blog that Republicans have no choice but to sue. "Judicial review is needed to re-balance the powers of the branches in our system after years of erosion of legislative authority."
On November 21, House Republicans finally filed the lawsuit. This comes after they've tried at least 54 times to repeal or change the health care law, only to be rebuffed by the Democrat-led Senate. "The fact is, this lawsuit is a bald-faced attempt to achieve what Republicans have been unable to achieve through the political process," House Democratic Leader Nancy Pelosi said in a statement.
Unlike health care, where Republicans want the courts to do what they can't accomplish on their own, they are leaning on the judicial system to give them a pass on social issues. In February 2011, Obama abandoned the administration's defense of the 1996 Defense of Marriage Act, which prevented gay couples who married in states where their unions have been legalized from claiming federal tax benefits. House Republicans grabbed the baton, spending more than $2 million in tax dollars on the fight before the U.S. Supreme Court sided with the White House and struck DOMA down in June 2013. While Republicans attacked the court ruling, legal action on gay marriage carries a political bonus. The decisions give 2016-focused Republicans a way to sidestep the divisive issue. In October, the Supreme Court rejected appeals from five states including Wisconsin that were trying to preserve bans on same-sex unions. "For us, it's over," Wisconsin Governor Scott Walker said, noting he'd rather be talking about other things. New Jersey Governor Chris Christie has adopted a similar stance.
The courtroom also may offer a solution to the immigration puzzle. Republican presidential hopefuls must be able to rapidly switch gears between the primary contest and the general election, from worrying about turning off conservative voters who cry amnesty to connecting with Latino voters who passionately want relief for undocumented immigrants. It's an echo of what's been going on in Congress. House members with tightly drawn districts fret more about conservative challengers, while Senate candidates, who have a broader electorate, are more willing to tackle the topic.
In a televised Nov. 20 address, Obama said he is tired of waiting for Congress to act. He announced he will give reprieve to some foreign-born parents of U.S. citizens and expand the permits available for skilled foreign workers. Conservative voters hate it; Hispanics cheered him. Cue the attorneys. Walker and Indiana Governor Mike Pence, both possible 2016 Republican presidential candidates, are among those who have offered to be plaintiffs.
And of course count Abbott in. He made a 10-minute videotaped statement Nov. 24 outlining why Texas will probably sue over immigration in the next couple of weeks. "I am addressing this as a legal issue, not a political issue," Abbott said. "The president has crossed the line from politics to endangering the constitutional structure."
This would be his 31st Obama lawsuit.
-- Greg Giroux contributed.