"Well, yeah, it's not exactly impeachment, but...you know, there'll be a trial, and it won't cost us anything, and, uh, you know what I'm saying? It might work out OK."
The suit has become a joke even before it’s been filed. There is a strenuous effort, in certain conservative circles, to take it seriously. When Boehner announced his intention to sue, in June, the Wall Street Journal awarded him “all due credit” for resisting Obama’s “imperial powers,” and on Wednesday Republicans on the House Rules Committee kept a straight face while debating it. But most observers—even on the right—see the lawsuit, as in the words of the blogger Erick Erickson, “a political stunt” aimed at rallying Republican voters who, all things being equal, would have preferred to see the President impeached, or traded to Germany for Bastian Schweinsteiger and a player to be named later.
The idea of throwing red meat wrapped in a petitioner’s brief, of all things, to the midterm electorate should cause Republican strategists to flip their lids. It’s hard to overstate the role of lawyer baiting, litigation hating, and activist-judge bashing in the electoral success of the G.O.P. since the late nineteen-sixties, when Richard Nixon fixed on this formula to unite and expand the Republican coalition of states-rights traditionalists, social-issue activists, small-government conservatives, big businesses, small businesses, and other groups who wanted courts to get out of enforcing regulations they didn’t like and rights they didn’t support. That loathing, by now, is bred in the bone. In the conservative lexicon, there are few epithets worse than “liberal trial lawyer”; Republican ads are presently flinging it at Democratic gubernatorial candidates inGeorgia and South Carolina.
But, as Boehner’s move reveals, the right is having it both ways when it comes to the courts. Attacks on excessive litigation notwithstanding, conservatives are doing exactly what they say the left has long done: rushing to litigate political questions, elevating all manner of disputes to the level of high constitutional principle, and asking judges to settle (or revisit) policy arguments that ought to be resolved by legislators or voters. If the Affordable Care Act can’t be repealed, despite dozens of attempts, it can be undercut by judges, as in the Supreme Court ruling in the Hobby Lobby case. If the National Labor Relations Board can’t be shut down, the Presidential power to make recess appointments—which has kept the agency running—can be curbed, possibly for good, as last month’s Noel Canning decision portends. And if Obama can’t be impeached, well, he can be sued.