Douglas Cohn: Thanks to Supreme Court, Boehner has the upper hand

By Douglas Cohn

Syndicated columnist

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WASHINGTON — Why does President Obama fear House Speaker Boehner’s threatened lawsuit? He has a good reason.

Some say Boehner is doing this to head off the impeachment effort advocated by some of his more strident GOP members. Not likely. Boehner is doing this because it actually might work.

It is well known that the Republican-controlled House of Representatives has become a just-say-no legislative body, an outgrowth of the Tea Party-fueled partisanship that has replaced the art of compromise as the primary instrument of representative government.

In response, the president has increasingly used executive orders to circumvent the stonewalling, claiming such orders are legal. Boehner claims they are unconstitutional, and he is beginning to gain the upper hand. In response to the burgeoning crisis created by an influx of undocumented Hispanic children into Texas, the president is wavering on calling up the National Guard to help seal the border, admitting that the threatened lawsuit is a reason. Instead, he is insisting that the House act by passing the Senate-passed immigration bill or, in the alternative, passing emergency funding legislation to pay for increased border surveillance, the humanitarian needs of the children, and the lawyers and judges necessary to adjudicate each case.

So here we have a president refusing to act on an issue of national security and humanitarian necessity, at least in part, for fear of a lawsuit. The presidency has always been one part leadership and one part politics, but the Boehner lawsuit seems to be forcing the office into a new dynamic of one part leadership and two parts politics.

What has been missed in this apparent political theater is the leverage behind the threat. It dates back to 2000, when the Supreme Court voted 5-4 to halt the Florida vote recount and propelled George W. Bush into the presidency. And that Court was even less partisan than the current Court. The 2000 Court split with Chief Justice Rehnquist and Associate Justices Scalia, Thomas, Kennedy, and O’Connor siding with Bush, and Associate Justices Stevens, Souter, Ginsburg, and Breyer voting to continue counting the votes. Until then, it was said that the Court was the O’Connor Court because Sandra Day O’Connor had gained a reputation as the deciding swing vote in case after case. But Bush v. Gore was her low point.

Today Rehnquist, O’Connor, Souter, and Stevens are gone, and Scalia, Thomas, and Kennedy have been joined by reliable conservatives, Chief Justice Roberts and Associate Justice Alito. Only Kennedy is in question, but he has not proven to be similar to the more open-minded O’Connor. In short, this Supreme Court is likely to be at least as partisan as the 2000 Court.

And because any suit involving the president is going to end up in the halls of the Supreme Court, Speaker Boehner knows he might just succeed in this purely partisan litigation tactic. President Obama is equally aware of the scenario, which is why he has good reason to fear this latest episode in constitutionally-sanctioned partisanship.

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