Roll Call reports on the current state of our constitutional separation of powers:
Speaker John A. Boehner, R-Ohio, told Republicans Tuesday he could have an announcement within days on whether the House will file a lawsuit against President Barack Obama, challenging the executive actions that have become the keystone of the administration.
The lawsuit could set up a significant test of constitutional checks and balances, with the legislative branch suing the executive branch for ignoring its mandates, and the judiciary branch deciding the outcome.
Boehner told the House Republican Conference during a closed-door meeting Tuesday morning that he has been consulting with legal scholars and plans to unveil his next steps this week or next, according to sources in the room.
In other words, this is a news story about someone making an announcement that he might soon be making an announcement. Forgive my cynical heart, but that was my first clue that it wasn’t anything to get excited about.
I’m not a big fan of legislative grandstanding… but on the other hand, there is a fine line between shameless grandstanding, and taking some probably doomed action (be it the introduction of a bill, or the filing of a lawsuit) that garners media attention and sparks a public discussion. From that perspective, there could be something to recommend the idea of filing the lawsuit Speaker Boehner announced House Republicans might soon announce they are filing. One must play the game, even as we aspire to change its rules, and right now you’ve got to be doing something to capture the public mind, and force the other side on the defensive. No matter how this lawsuit goes, there is something to be said for poking Democrats with a media stick and forcing them to defend executive overreach, secure in the knowledge their arguments will instantly expire when a Republican takes office. It might not be the most elegant way to back into a discussion of the constitutional separation of powers, but it may yet prove effective.
Besides, the Speaker’s people argue, there’s not much else that can be done at this point:
Boehner spokesman Michael Steel said further action is necessary because the Senate has not taken up bills passed by the House targeting executive actions. The House has passed a bill expediting court consideration of House resolutions starting lawsuits targeting executive overreach and another mandating that the attorney general notify Congress when the administration decides to take executive action outside of what has been authorized by Congress.
“The president has a clear record of ignoring the American people’s elected representatives and exceeding his constitutional authority, which has dangerous implications for both our system of government and our economy,” Steel said. “The House has passed legislation to address this, but it has gone nowhere in the Democratic-controlled Senate, so we are examining other options.”
It remains unclear which executive action or actions the House would challenge, but Obama has given Congress ample targets. In the past several years, he has issued executive actions halting deportations of hundreds of thousands of immigrants who came to the country as children, extending the family and medical leave benefits to gay couples and raising the minimum wage for federal contractors. He has also worked around legislative deadlines for enacting provisions of the Affordable Care Act and issued other executive actions relating to the environment and the gender and race pay gap.
Roll Call’s review of that target-rich environment for lawsuits is early evidence that this strategy to work up media attention to the matter of executive overreach might just work. President Obama constantly pushes the narrative of congressional “gridlock” as the excuse for his failures, in the process advancing an imperial executive model wholly at variance with both good sense and the American tradition – he’s out there again right now, wailing that he’d be able to “help” so many people if Congress would just rubber-stamp his agenda, so he’s got to abuse executive power to bring the unicorns and rainbows on his own.
That’s not how the system works, and when it’s Democrats blocking Republican presidential agendas, you don’t hear as much screechy teenage whining about it. Given the actual results of this malevolent and incompetent President’s plans – from the almighty disaster of ObamaCare, to the border crisis deliberately caused by those executive orders he keeps shrieking about – we should all be grateful that we don’t live beneath an imperial executive.
To put it bluntly, if your brilliant ideas involve steamrolling dissenters, disregarding their opinions, and forcing their compliance with schemes they have both practical and moral objections to, you’re living in the wrong country, and should find a benevolent despotism more to your taste. To the extent “gridlock” is a problem, it’s a problem caused by trying to choke the system with grandiose plans that a properly limited federal government would not pursue. And yes, Republicans come up with plenty of plans like that, too. The big difference is that our political and media culture is objectively more likely to thwart Republican ambitions, which is a strong argument in favor of having a Republican president. At least their scandals get investigated, and the pro-Democrat media holds up congressional instruments like the filibuster as the essence of democracy, rather than yawning while GOP leadership discards them. You’ll get the picture when, say, President Ted Cruz starts talking about how he plans to use executive orders to get around do-nothing congressional Democrats.
As to this business of the House suing the President for abusing his powers, one of the big obstacles, which Roll Call mentions, is the difficulty of establishing legal “standing” for filing such a suit. In theory, “Congress as an institution” can claim standing “on the grounds that there has been institutional injury done because its legislative powers have been nullified.” But this is one way the whole enterprise could be scuttled before it gets out of drydock, and even if standing is determined, it’s hard to imagine how such a lawsuit would be able to choke any results out of the plodding U.S. legal system before Obama shoots his 200th round of golf, calls it a presidency, and heads for his retirement estate.
Former prosecutor Andrew McCarthy, writing at PJ Media, sees the lawsuit strategy as a gutless refusal to use the Constitutional powers Congress was given to bring a rogue executive branch to heel – “namely, cutting off the executive branch’s funding and impeaching executive branch officials who violate the law, carry out lawless policy, mislead lawmakers, stonewall investigations, and frustrate Congress’s constitutional oversight function.”
In essence, Boehner & Co. are fecklessly asking the courts to do their heavy lifting for them — a classic case of assuming the pose of meaningful action while in reality doing nothing. And tune in next week when Republicans get back to complaining about how activist judges are making the law rather than interpreting it.
Republican lawmakers will plead with the courts to do something about Obama’s imperiousness because there is political risk in using their own authority. If they employ these game-ending powers, the president will use the bully pulpit to bully them and his media loyalists will echo the demagoguery from here to Election Day.
Clearly, Republicans doubt their competence to win this debate, to make presidential lawlessness the defining issue of our political discourse. They prefer to cruise quietly into November, and hope — as they did in 2012 — that the unpopularity of Obama’s agenda will be enough to carry them through the election. But they also know their agitated base is demanding that they do something to stop or slow the dizzying pace of Obama’s “Change,” which in just the last couple of weeks has given us: the VA scandal, ruinous EPA regulations, the release of top Taliban terrorists to return to the jihad, an invited invasion of thousands of illegal aliens across the Southern border, and revelations that executive officials destroyed key evidence in the IRS scandal.
So the GOP will substitute futile litigation for purposeful legislation. This, of course, is the same strategy that has saddled us with Obamacare: Take no real legislative action — in fact, continue funding the problem — and pray that the Supreme Court will be the grown-ups willing to strike down the law and bear the Obamedia wrath. That worked out well, no?
Reading this brings to mind the Supreme Court’s decision that Obama’s phony “recess appointments” were illegal, because Obama doesn’t have the power to arbitrarily decide when Congress is in session. It was a huge decision and a massive slap to King Barack I, no doubt about it, but the Court’s four conservatives wanted to go much further and say something earth-shaking about the use of recess appointments as a tool for bypassing Congress. Writing for the majority, Justice Stephen Breyer said the Court was unwilling to go that far because it would cause too much of an upheaval – he was “hesitant to disturb” what he describes as “centuries of history,” even though the large-scale use of recess appointments to skunk Congress really only dates back to the 1940s. I suspect we would read similar arguments if a House Republican lawsuit against executive orders gained too much traction – voiding those orders would be too disruptive, measured against what seems like the centuries that have elapsed since 2009.
On the other hand, Philip Klein at the Washington Examiner looks at the very same Supreme Court decision – unanimous in its rejection of Obama’s unlawful manipulation of the National Labor Relations Board – and sees it “bolstering” Boehner’s efforts, because it shows the Court might be in a mood to push back against executive abuses: “Liberals have consistently dismissed as political posturing any charges by Republicans that Obama has violated the U.S. Constitution by frequently bypassing Congress. But the decision in the NLRB v. Noel Canning case shows that there’s more to the GOP’s claims than liberals care to acknowledge.”
Even with Obama’s popularity at low ebb, and much of the American electorate either losing patience with him or simply tuning him out, impeaching the President isn’t a realistic option, probably not even if he were clearly guilty of an obviously criminal offense. (Perjury, as we learned in the late 1990s, is not enough.) The President’s party would never allow it, and when that party is the Democrats, the media will not make them pay a big public-relations price for standing their ground. Democrats will never have to make the Nixonian “long walk” to the White House from Capitol Hill, to tell an embattled President that the game is up. Frankly, the Clinton and Obama generation of Democrats think the Republicans made a mistake doing that anyway; the enduring political damage from the Party admitting its titular leader’s corruption is far more severe than the short-term hit from fighting to keep him in office at all costs, smearing and slandering everyone who gets in the way.
McCarthy talks about launching impeachment proceedings “against any IRS or other executive branch officials who have been involved in either the revenue agency’s blatantly unconstitutional harassment of taxpayers over their political beliefs or the executive branch’s willful obstruction of Congress’s investigation of the scandal.” That’s a fair suggestion, but not quite the same thing Speaker Boehner is talking about when he speaks of filing suit against executive overreach, probably citing President Obama’s rewriting of ObamaCare and immigration law as examples.
As for the “power of the purse,” it’s going to be a long time before Republicans try that again, at least against anything Democrats are willing to shut down the government to protect. There might be some fiscal skirmishes, but there won’t be another all-out fiscal war. I don’t think the Republican Party handled the previous fiscal war as well as they could have, and see no reason a different outcome would result from putting the same teams on the same field.
So really, what is left, except to take actions that will at least get the American people talking about both the danger posed by the imperial presidency to our system of government, and the actual results of this particular imperial president’s actions? It still seems like a political stunt to me, but if it’s an effective political stunt…