Yesterday’s big political news is certainly the decision by House Speaker John Boehner to sue President Obama, charging that he is not “faithfully executing” the law. Dana Milbank scoffs:
To sue the president, Republicans are tying themselves in ideological knots. After howling about excessive lawsuits, they are embracing long-shot litigation. After lamenting activist judges, they are now insisting that judges be more activist and shed their long-standing reluctance to adjudicate disputes between the elected branches.
Even some conservative scholars argue that lawmakers probably don’t have a legal standing for such a suit. If Republicans persuade the courts to grant them standing, the case could take years to work its way through the system, at which point Obama will be gone. Adding to the charade, the taxpayer-funded legal fight would be waged under the authority of the Bipartisan Legal Advisory Group, which is known by the acronym “BLAG” and is bipartisan only in name because it is controlled by the House majority.
The editors of the Wall Street Journal are cheering:
All due credit to John Boehner, who told his House colleagues on Wednesday that the institution will sue the executive branch to defend the Constitution’s separation of powers. The Speaker is showing more care that the laws be faithfully executed than is President Obama.
In a memo to the House, Mr. Boehner detailed the institutional injury Congress is suffering amid Mr. Obama’s “aggressive unilateralism,” which is as good a description as any of his governing philosophy. When the executive suspends or rewrites laws across health care, drugs, immigration and so much else, elected legislators are stripped of their constitutional role.
The Beltway press is portraying Mr. Boehner as merely serving carrion to the tea party vultures, and no doubt he hopes in part to sate the political appetites of the backbench. But we doubt he’d wager the House’s reputation, and his own, on a novelty lawsuit that the courts wouldn’t hesitate to toss as frivolous. From what we know of the Speaker’s deliberations, he’s been persuaded on the merits.
In my view the case is benign, a test of a theory of Florida law prof Elizabeth Price Foley’s (among others) that the standing lacked in cases of this sort by individual Congressmen resides in the Congress as an institution. I think they’d have a better case if both houses of Congress backed the suit.
As it is not only is the House asking the Court to take sides with it against the president, it’s asking that it take sides against the president and the Senate and, frankly, I doubt it will prevail.
I think that those who claim that the House can act on its own to limit the power of the presidency by using the power of the purse and, in particular, the constitutional provision that all spending bills must initiate in the House are missing something basic. Congressional appropriations aren’t just slush funds to be used ad libitum by the executive. They’re limited in their use to statutory purposes. In his going well beyond what is necessary and proper, President Obama has already signalled his willingness to vitiate the power of the purse.
The question at hand is should the Congress have recourses other than impeachment and possible removal from office to punish a president refusing to enforce the law? I don’t rejoice in a return of our “national nightmare” but there are those who do.
I think that the Congress should have a recourse short of impeachment and the Court should aid in that effort. The Republicans may well have their chance at testing the theory again, this time with a suit brought by the entire Congress, next session.