Recurring Nightmare

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.

8 comments… add one
  • CStanley

    It feels like a stunt, especially if they haven’t exhausted other remedies.

    It’s understandable that impeachment of the president is undesirable and carries high cost (politically for the party that brings the charges, and more generally for the well-being of the country) but I’m less clear about impeachment of Cabinet officers. Taking two examples -immigration law enforcement, and implementation of ACA-it would seem to me that a case could be made against Holder and Sebelius. But is it improper to hold the Cabinet level accountable when those officers are working at the President’s behest? Would it make sense to put the accountability at that level, and perhaps avoid the trauma of presidential impeachment?

  • ....

    CStanley, with the group of clowns running the House this is certainly a stunt, even if the underlying complaints are legitimate.

  • ....

    I seem to recall that in the Nineteenth Century Cabinet members were subject to much more Congressional scrutiny, to the point where sometimes Presidents felt like the Cabinet officers worked for Congress instead of the President. (A situation Congress no doubt enjoyed.) Perhaps some of the people with a better memory of the history can tell us if I’m remembering that correctly.

  • CStanley

    I don’t know the answer to your historical question, icepick, but if the pendulum were to swing back in that direction it would seem to be a good fix for the imbalance in powers that has come from the advancement of the unitary executive.

  • PD Shaw

    I don’t know if we have many details of the lawsuit, but I suspect the President will ultimately not be a named party. The lawsuit would more likely be brought against a department or department head. Congress usually doesn’t pass laws directing the President to do things, it directs the Department of Human Services to do things. That gives Congress more control over the executive branch through things like oversight.

    The frame would then be something like the law requires the Department to do x, and it is not. That the Department then defends on compliance with an executive order, would then place into question which is superior.

  • michael reynolds

    It’s not so much a stunt IMO but a ploy to shut the Tea Party wing up. Boehner knows impeachment is suicide, and he knows the TP folks love them some electoral suicide. He threw them this to keep them quiet.

    Now he can get back to the important work of taking that 900th impotent vote to repeal Obamacare.

    If you want power there’s an unfortunate side effect: it comes with responsibility attached, and with responsibility comes accountability. So Congresses of both parties have been busy – for many years now – refusing to do their jobs and instead handing power off to the executive.

    Does Boehner actually want power back? Of course not. Then he’d have to schedule votes that would get some members primaried and others thrown out altogether. No, he just wants to go on being Speaker, and his compatriots want to go on being Congresspeople. No one actually wants to do anything.

    I meet people like this all the time but the ones I meet want to “be” writers. Do they want to do the actual work? Nah. They want to “be” not “do.” Doing is hard, being is easy.

  • I meet people like this all the time but the ones I meet want to “be” writers. Do they want to do the actual work? Nah.

    That reminds me of the question I asked a friend who was about to invest in a new restaurant venture. I asked “Do you want to run a four star restaurant or do you want to have run a four star restaurant?”

  • Easier to be Congressman than run a four-star restaurant. THAT sounds like a recurring nightmare.

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