A Moment of Sympathy for Boehner

When your enemy has reached the point where, for whatever reason, they can do you no more harm, any sympathy you might have for their travails emerges.

I’ve thought John Boehner was a posing, lying, self-serving jerk since I first saw him at work as speaker of the house. For four years, he has relentlessly trash-talked the president, worked against everything the Obama administration wanted to accomplish (regardless of whether or not it was a good idea), and devoted his utmost to making sure the rich got rich while the poor got nothing. He has been, for all that time, the perfect Republican.

Today, with his announced resignation–universally attributed to effective maneuvering by the minority fraction of his own party that is dominated by the professionally ignorant far right–we learn a bit about what it must have been like to be John Boehner for the last four years. In a word, I would guess what he feels is, “unappreciated.” Virginia’s Ken Cuccinelli, now president of the Senate Conservatives Fund, issued this jaw-dropping statement:

As Speaker of the House, John Boehner was hostile towards conservatives and our principles. Rather than fighting President Obama and his liberal policies, Speaker Boehner embraced them and betrayed his party’s own voters.

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One can only imagine Boehner reading this, and wondering if Cooch is smoking dope. “Embraced” the president’s policies? I missed those policies. Which ones were they?

Boehner’s departure has implications. First, it has already set off a fight over who will replace him. Imagine Dave LaRock as the next speaker and you’re probably picturing what the fight is all about as of today. Second, it means Boehner must have realized his “cut it in reconciliation” trick for defunding Planned Parenthood wasn’t going to work. That means there will be a government shut-down (something Cooch’s crew helped bring about last time, and will probably eagerly encourage again). Third, it means the Tea Party faction has (by the luck of numbers small enough to be a minority, but big enough to be necessary to outvoting the Democratic caucus) taken control of the United States congress. Ted Cruz loves the Senate Conservatives Fund, and is probably already looking around to see whom in his part of the legislature, this is going to spill over onto next

With all this vitriol, schadenfreude, and blood-lust in the air, I have to admit I do feel, just a teeny, tiny bit, some sympathy for John Boehner. He tried his best to ruin every effort made by Barack Obama. He couldn’t do it, but he tried his best. And now, when he’s being forced from power largely because of that failure, his critics claim he didn’t even try. That he “embraced” what he tried his best to destroy. Man, that’s gotta hurt.

John, I’ll never vote for you, nor send you a donation. But, if you’re in town, let me know. First round’s on me.

 

Will Obama Use the Pac-Man Defense?

Just for fun, I have been Googling the status of John Boehner’s lawsuit lately. The results are hilarious. In short, here’s what’s up:

  1. Boehner’s first law firm dumped him for fear of looking stupid for taking the case.
  2. Boehner’s new lawyer is fresh off of defending (if you can call it that) Maureen McDonnell.
  3. A similar case just got tossed out of court for lack of standing (cf. Item 1, supra).

Now that last one is important because the legal question commentators have all centered on is whether or not the House of Representatives has “standing” sue. “Standing” is a legal concept both elusive and typically benign. It refers to whether or not a plaintiff has the right to sue at all. Usually, this is not in dispute. If D breaches a contact with P, P has standing to sue D. If D mistakenly amputates P’s right leg when the prescription was for aspirin, not surgery, P has standing to sue D. In cases like those, the question standing never comes up. But that’s because P’s injury is clear and D’s relationship to that injury is equally clear. Liability still needs to be proven, but if P has been injured and claims it was D’s fault, P has standing to sue D. Without any clear injury, however, P can’t sue anyone. In this case, the injury to the House is pretty hard to see (also, remember that only the House is a party to the suit; the Senate has stayed out of it, which means that, even if Congress as a whole has the right to sue, the House doesn’t necessarily get to sue on its own behalf).

What injury could the House claim it has suffered? Well, let’s remember that the suit alleges (or, we are told, it will allege; it still hasn’t actually been filed in any court) that Pres. Obama has failed to implement the ACA on the schedule originally set by Congress. He has unilaterally (that is, without the consent of Congress) delayed the employer mandate for a year, so businesses get some extra time to organize themselves and be ready. The businesses wanted this, and none of them are complaining. Meanwhile, as the president has been delaying implementation, Boehner’s Republican majority hasn’t sought to delay implementation of the ACA, but to repeal it. They have, in fact, voted to repeal it. Dozens of times. The irony in claiming injury arising from the president’s delay in doing something the House has voted not to do at all is self-evident. But, legal commentators are limiting themselves to the first question a judge will have to answer if the case gets to court: does the House have standing?

Most opinions agree that the answer will be, “no,” and that the case will be tossed out of court. However, it won’t have to end there. A dismissal for lack of standing can be appealed. If Boehner appeals, he will–the pundits say–most likely lose again. Okay, but hang on, because an appeal can, itself, be appealed to the United States Supreme Court. What happens there is final and, according to some of those same pundits, not as easy to predict. It’s just possible that five conservative justices would rule in Boehner’s favor (maybe on the legal logic that such cases can’t ever have anyone else as a plaintiff with standing, so Congress can step in, although that’s still hard to apply to the House alone). In that case, Obama loses, Boehner wins, end of case.

Only it’s not the end. All that would do is send the case back to Square One, with the standing question answered, “yes,” and then the original question complained of would be considered: does the president have the power to delay the employer mandate?

Except…

Just as “standing” can get a case tossed out of court (for lack of a proper plaintiff) so can another doctrine, called “mootness,” which applies for lack of an active controversy. How could the case become moot? Remember P and D? Suppose P’s complaint with D is that D owes P $1,000, and D hasn’t paid the debt. P can sue for the money. But, if D has a change of heart, or decides fighting in court just isn’t worth it, D can simply pay P the $1,000. At that point, the case is moot because P has no active controversy needing a court to review. By identical logic, if Pres. Obama loses that battle over standing, he can simply cease his delay of the implementation of the employer mandate (which, remember, all of John Boehner’s business friends want delayed), and implement it immediately. Boehner’s suit becomes moot and is tossed out of court in that case, with Pres. Obama “winning” the case by successfully asking the judge to dismiss it again. Boehner, then, gets to hold a press conference and explain that, because he lost the suit, the employer mandate will no go into effect immediately, something that would never have happened if he hadn’t brought the suit in the first place.

Think of it as a Pac-Man defense, where the president “wins” by taking away the actual question (not the standing question), and, theoretically, conceding to Boehner what Boehner’s suit says he wants (when, in fact, Boehner wants no such thing at all).

Boehner’s suit is to please the Tea-baggers, and everyone knows it. But, if he is really, really lucky, and survives the standing issue everyone predicts will defeat him, he will have to decide if he really wants to proceed because, win or lose, he may find himself answering not just to the baggers, but to his corporate donors. And they will not care at all if won or lost, because, either way, he will have become the person who took away the delayed implementation the president had given them.