Under the leadership of Republican House Speaker John Boehner (R-OH), the lower chamber is preparing to sue President Obama. The reason is simple: House Republicans are increasingly worried about what they consider to be an “imperial presidency.” That is, a chief executive who is trampling on the Constitution by re-writing (and refusing to enforce) laws duly passed by Congress. This lawsuit, they hope, will "compel President Obama to follow his oath."
From Speaker Boehner’s op-ed:
Every member of Congress swore an oath to preserve, protect and defend the Constitution of the United States. So did President Barack Obama.
But too often over the past five years, the President has circumvented the American people and their elected representatives through executive action, changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold -- at times even boasting about his willingness to do it, as if daring the American people to stop him.
That's why, later this month, we will bring legislation to the House floor that would authorize the House of Representatives to file suit in an effort to compel President Obama to follow his oath of office and faithfully execute the laws of our country.
Critics contend that suing the president is both a waste of time and money. They also argue that if one looks at the sheer number of executive actions the president has issued, he's actually exercised this right far fewer times than his predecessors. His actions therefore are hardly historical aberrations. But, not everyone finds this argument compelling.
Charles Krauthammer, for example, recently argued that the “breadth” and “scope” of the executive actions he’s issued far exceed his legal authority, and therefore a lawsuit is probably warranted:
“It's a completely irrelevant statistic. What matters is the breadth and the scope of each of these executive orders. Obama has essentially rewritten the laws on immigration, on drugs, and then he rewrites his own Affordable Care Act after it passes. You cannot do this.”
But is there any chance such legal action will be taken seriously? Doubtful. The New York Daily News published an op-ed last month explaining why, exactly, this kind of a lawsuit will almost certainly “go nowhere”:
The suit will go nowhere for three obvious reasons.
First, although the speaker has yet to name the actions he is challenging — itself a bad omen — the “faithful execution of the laws” is a more complicated matter than he suggests. Executing laws is not like following recipes. Those administrative initiatives that most rankle Republicans typically represent exercises of executive branch discretion that are at least arguably lawful under statutes Congress earlier enacted.
Second, Obama is the wrong defendant. Few of the initiatives about which Republicans complain are, legally speaking, presidential. The Affordable Care Act is implemented by the Departments of Health and Human Services and of the Treasury. The deferred deportation policy belongs to the Department of Homeland Security. And so on.
Third, and most glaring, is the problem of “standing.” Federal courts consider themselves constitutionally limited to resolving disputes on behalf of plaintiffs who have been injured — or who are threatened with some injury — in a particularized, concrete and personal way. They will not address what the Supreme Court calls “mere generalized grievances.”
Nevertheless, Republicans presumably anticipate this lawsuit will at least unite their party ahead of the 2014 midterm elections. We’ll see.
In the meantime, you can read the rest of Speaker Boehner’s op-ed here.