Boehner Retains Leftwing Critic of Executive Power for Lawsuit against Obama

I am with Power Line’s Paul Mirengoff on the too-clever-by-half choice by Speaker Boehner to retain leftwing law professor Jonathan Turley as counsel in the House’s long-delayed lawsuit against President Obama. In the end, I don’t think it will matter. As Paul points out, judges tend to decide cases based on the merits. When they don’t, their own political leanings matter a lot more than those of the lawyers for the parties.

Moreover, as I’ve opined, the lawsuit is frivolous: The Framers gave Congress its own powers to deal with a rogue president and would have been appalled at the thought of the powerful first branch asking the “least dangerous” third branch to do its heavy lifting. Moreover, as I recounted in Faithless Execution, Obama pays no more attention to court decisions against him than to statutes he dislikes. Since judges have no power to execute their rulings (they need the executive branch for that) a decision against Obama would have no effect – which makes it even less likely that a judge would agree to hear the case, in which the House already faces a daunting challenge to establishing legal standing to sue. (And by the way, that standing challenge now includes not only the fact that courts are not meant to resolve these policy disputes between the political branches, but the problem of mootness: Boehner talked a big game on the lawsuit but has waited so long to file it that many of the president’s Obamacare “waivers” that the suit was to target are about to lapse.)

But even if we indulge the dubious assumptions that a court will take the case and could give a rat’s rump about the politics of the lawyers, the relevant fact about Professor Turley is not that he is a liberal taking a principled stand against a Democratic president’s lawlessness. It is, as Paul notes, that he is an extreme opponent of executive power, even in areas where the president has broad inherent authority. So if a judge bothered to weigh Turley’s politics, he would either discount the professor’s advocacy as the product of excessive skepticism about presidential action; or adopt Turley’s theories and issue a ruling that hampers future Republican presidents in matters of foreign affairs and national security.

That is the problem with political stunts like the lawsuit. They don’t have real upside but they’re not always harmless.