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Why suing the president makes good politics

Suing the president makes sense (for both parties) because politics is increasingly not about results, but about burnishing partisan credentials. Why? It all has to do with party 'sorting.'

Yesterday the House voted 225 to 201 to approve a resolution authorizing Speaker John Boehner to sue the president for his unilateral decision to push back the implementation date of a key provision of Obamacare. The vote broke down on nearly straight party lines 鈥� five Republicans voted against the measure, while no Democrats supported it. Predictably, the partisan decision set off a flurry of debate among political pundits, with that it was a further sign of Republican extremism run amok, and likely a prelude to . Conservatives that it was necessary to prevent the president from encroaching on Congress鈥檚 constitutionally-based lawmaking authority.

As legal experts point out, there鈥檚 not much likelihood that this effort will be any more effective than by members of Congress to sue the president. Courts typically rule that congressional members fail to prove they have been injured by the president and thus lack standing, and that Congress has the power to correct the president鈥檚 action via the legislative process rather than resorting to judicial fiat. For this reason it is unlikely that the Republican鈥檚 latest effort will have any real impact, legally speaking.

So why sue? The legal perspective misses the central logic driving the Republicans鈥� decision. The political scientist David Mayhew, in his , labeled votes like yesterday鈥檚 鈥減osition taking鈥� which he defined as 鈥渢he public enunciation of a judgmental statement on anything likely to be of interest to political actors.鈥� The key point for Mr. Mayhew is that the position 鈥� in this case voting to sue the president 鈥� is the political commodity; the legislator seeks approval from constituents for taking the position rather than for achieving effects. From Mayhew鈥檚 perspective Republicans don鈥檛 have to win the lawsuit for it to pay electoral dividends in this fall鈥檚 midterm elections. Indeed, as they head home for the midterm break, Republicans will have ample opportunity to explain their position to potential voters. Democrats, too, can use their opposition to the resolution to gin up support back home as well.

Mayhew wrote his classic work in 1974. In today鈥檚 era of divided government and deeply polarized and evenly matched congressional parties, however, position-taking is probably a more important component of congressional activities. Because parties are so well sorted ideologically today 鈥� the Democratic party more uniformly liberal, and the Republican thoroughly conservative 鈥� a party鈥檚 鈥渂rand鈥� means much more electorally than when Mayhew wrote. Members of each party are thus deeply vested in staking out positions that they think help draw a contrast with the opposition party in the next election. Moreover, as the public face of his party, the president is often the target of this position-taking exercise as political scientist Frances Lee . That is precisely the logic driving the Republican caucus鈥檚 decision to sue President Obama, and why Democrats are intent on portraying this as a prelude to impeachment.

As position-taking becomes a more integral part of congressional activity, Congress continues to vote on issues, but with far less to show for those votes in terms of legislative productivity. Indeed, as this chart (see above) by Day Robins shows, in terms of laws passed, the current 113th Congress is on pace to in the last 40 years.

The reason is that legislators vote not so much in the expectation of passing laws as they do to send positional messages that help clarify the party鈥檚 standing on issues that divide the parties. The electoral effect is the message conveyed by the vote rather than whether it becomes law.

Early last month, to sue him over his use of executive action. Republicans in the House were only too happy to take him up on the challenge. Both sides believe they will be rewarded by their party faithful for staking out such extreme positions. And they are likely right. Although suggests a majority (57 percent) of those surveyed do not support suing the president, fully 75 percent of Republicans do, while only 13 percent of Democrats favor a lawsuit. Independents oppose the effort by a 55-to-43 percent margin. Both sides are betting that in a typically low-turnout midterm, their respective party bases 鈥� motivated in part by this lawsuit 鈥� will turn out in disproportionately higher numbers come November.

Suing the president may not be good government, but in a midterm election year it makes for great politics.

Matthew Dickinson publishes his Presidential Power blog at .