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Suit against Obama will go nowhere

By RUTH MARCUS Washington Post Writers Group

WASHINGTON - Sarah Palin is right about impeaching President Obama.

No, not that the president should be impeached. But Palin is correct in arguing that, for those who assert that Obama has grievously abused his executive authority, impeachment is the proper course of action.

Of course this won't happen, for the obvious reason that this tactic didn't go so well for Republicans last time. Hence House Speaker John Boehner's curt dismissal of Palin's call for impeachment: "I disagree."

Boehner's alternative - a lawsuit - offers the political benefits of draining impeachment fever from the more rabid Republican precincts while rallying the base against Obama-as-evil-overlord, sans electoral downside.

"This isn't about Republicans versus Democrats; it's about the legislative branch versus the executive branch, and above all protecting the Constitution," Boehner pronounced in unveiling a resolution to authorize the lawsuit. "If this president can get away with making his own laws, future presidents will have the ability to as well. The House has an obligation to stand up for the legislative branch, and the Constitution."

Yet Boehner's proposed lawsuit whittles down these grand claims of presidential overreach to a more picayune point: Obama's move to delay imposing penalties on employers who fail to provide health insurance, as required by the Affordable Care Act.

That's right: By Boehner's lights, Obama's abuse of authority involves delaying a requirement - a delay, incidentally, intended to help businesses - of a law that Boehner's House has voted more than 50 times to repeal. (Never mind that, as Ezra Klein of Vox has pointed out, President George W. Bush unilaterally waived Medicare Part D penalties for low-income and disabled seniors late to enroll - with nary a peep from Boehner.)

The suit is destined to fail and, in any event, would take longer to resolve than the one-year mandate delay. Federal courts wisely don't want to referee fights between the other two branches. So Boehner's suit faces the twin hurdles of standing (what is the concrete injury to the House?) and then whether the case presents a political question that courts are bound to duck.

Meanwhile, the Constitution that Boehner claims to be defending offers two actual solutions to his purported injury.

The first, for presidential offenses that do not rise to the level of impeachment, is legislating. If Congress disagrees with the mandate delay, it can pass a law. If Obama balks, Congress has the power of the purse to force compliance.

But given that Boehner casts Obama's waiver of the employer mandate as just part of a series of executive infractions, the Constitution offers a more drastic remedy: impeachment. Indeed, presidential abuse of power, of the sort claimed by Boehner and Palin, offers a paradigmatic case for the sorts of abuses the framers consider to be impeachable offenses.

Although the Constitution speaks of impeachment in the case of "treason, bribery or other high crimes and misdemeanors," the framers were clear in understanding that an offense need not constitute a violation of criminal law to be impeachable.

Rather, as University of North Carolina law professor Michael Gerhardt, a leading scholar of impeachment, has explained, the framers not only considered such abuses of authority within the scope of impeachable offenses - they viewed these "political crimes" as the central focus of impeachment. "Impeachable offenses primarily consisted of abuses of power that injured the state," Gerhardt wrote.

For example, when the drafting committee limited impeachment to treason and bribery, George Mason of Virginia complained that this would fail to cover "many great and dangerous offenses." Mason cited the British impeachment of East India Company Governor-General Warren Hastings, "whose trial," Gerhardt wrote, "was based ... upon the dangers presented to the government by the governor's wielding of virtually absolute power within the Indian colony."

Alexander Hamilton, writing in Federalist No. 65, explained of impeachment that "the subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."

Palin is no Hamilton; her Breitbart.com screed calling for Obama's impeachment is long on rhetoric, short on specific examples of impeachable offenses.

"Enough is enough of the years of abuse from this president," Palin wrote. "His unsecured border crisis is the last straw that makes the battered wife say, 'no mas.'"

But Palin, at least, has the courage to follow her conviction through to its logical conclusion. Boehner doesn't.

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