Where You Sit Is Where You Stand

by Dave Schuler on July 19, 2014

For sheer schadenfreude it’s hard to beat this pick-up by Kimberley Strassel:

About the only thing Ms. Slaughter didn’t do in five hours was offer House Speaker John Boehner her litigation notes. For it seems to have slipped Ms. Slaughter’s mind—and the press’s attention—that a mere eight years ago she was a plaintiff in a lawsuit filed by congressional Democrats against George W. Bush. The year was 2006, just as Democrats were, uh, peaking in their campaign to take back the House.

Democrats were sore that they’d lost a fight over a budget bill that made cuts to Medicaid and student loans. They dredged up a technical mistake—a tiny difference between the House and Senate version of the bill. Michigan Democrat John Conyers, ranking member of the House Judiciary Committee, decided to (how did Ms. Slaughter put it?) file a lawsuit against the president brought by half of the Congress. He was joined as a plaintiff by nearly every other then-ranking Democratic member and titan in the House— Charles Rangel, John Dingell, George Miller, Collin Peterson, Bennie Thompson, Barney Frank, Pete Stark, James Oberstar and Ms. Slaughter herself.

How things have changed in just one administration! Some of the same people who were complaining about President Bush’s high-handed attitudes towards the law then are lambasting the Republicans for complaining about President Obama’s expansive view of what is “necessary and proper” now. And in much the same language:

In an April 2006 Huffington Post piece titled “Taking the President to Court,” Mr. Conyers explained that he was “alarmed by the erosion of our constitutional form of government,” and by a president who “shrugged” about “the law.” After “consulting with some of the foremost constitutional experts in the nation,” he had determined that there was “one group of people” who were “injured” by Mr. Bush’s lack of respect for “checks and balances”: Congress. So he was “going”—or as Ms. Slaughter might put it, “running”—”to court.”

I guess it looks different when the other guy is doing it.

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{ 7 comments… read them below or add one }

Andy July 19, 2014 at 10:52 am

Is anyone surpised? This is what happens when politics is ruled by factional ideology. Means, process and, by extension, legitimacy, are much less important than achieving the desired ideological ends.

steve July 19, 2014 at 4:02 pm

Dumb then, dumb now.

Steve

Dave Schuler July 19, 2014 at 4:42 pm

As I see it President Obama is merely doing what Cass Sunstein, among others, has been advocating: stretching his influence as far as possible using regulation as his lever. In doing so he continues a long pattern of expanding presidential power.

I don’t see the lawsuit as dumb so much as Quixotic. I don’t think one house of Congress will be seen to have standing. If the Republicans take the Senate in November, I strongly suspect they’ll try again, filing suit as the whole Congress, which will place the Supreme Court in a tight spot.

IMO the president is exceeding his powers and the House doesn’t want to impeach because they think it’s a political loser. Not exactly a profile in courage but probably the prudent move.

jan July 19, 2014 at 5:02 pm

“IMO the president is exceeding his powers and the House doesn’t want to impeach because they think it’s a political loser. Not exactly a profile in courage but probably the prudent move.”

Succinctly worded and probably spot on.

Andy July 20, 2014 at 1:26 am

And of course Congress doesn’t have the cajones to use their Constitutional power to oppose the President’s action. A lawsuit is safe in that it demonstrates opposition to what the President is doing without actually doing anything.

PD Shaw July 20, 2014 at 9:16 am

I am sympathetic to the effort here. Two problems have emerged. One is that today the SCOTUS is seen as the only word on what is or is not Constitutional, and Constitutionalism is seen as the only point of discussion on distribution of powers. The second is that the Court’s “standing” doctrine is itself not ideologically neutral.

For example, the D.C. Circuit ruled that Obama had not complied with the laws concerning issuing permits for a nuclear waste disposal facility. The developer had standing to challenge Obama’s refusal to process their permit applications because it had “particularized injury,” — they couldn’t engage in the business they wished.

Change the scenario slightly. Instead of failing to process the application, the President decides to waive the permitting requirement because Congress has given insufficient resources (the same justification Obama used not to process the application). Now, there is no “particularized injury.” Nobody is stopped from developing a disposal. Nobody has standing. Nobody is injured, ore everybody is injured, or nobody knows if anybody is injured except Congress that wanted the safeguard of a pre-development permitting system.

Dave Schuler July 20, 2014 at 10:37 am

Just to make my own position clear, I think that the Supreme Court’s decisions on standing have frequently been in error. In particular, if they find the House as a whole (or, worse, the Congress as a whole) has no standing then that means that the Congress has no ability to modulate its own responses to presidential overreach. It’s either impeachment or nothing.

As I’ve written before, that’s tantamount to saying that we should be impeaching presidents a lot more frequently than we are. IMO that’s mischievous.

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