Boehner Issues Memo Explaining His Feckless Plan to Sue Obama

by Andrew C. McCarthy

I had a column on the homepage yesterday about a practical step congressional Republicans could take to combat the rampant presidential lawlessness I’ve documented in Faithless Execution — to wit, they can start impeaching subordinate executive branch officials who have been involved in either (or both) the IRS abuse of Americans over their political beliefs or the cover-up of that constitutional affront, which has involved misleading testimony, destruction of evidence, and obstruction of justice.

I also weighed in this morning at PJ Media with a post about House speaker John Boehner’s feckless plan to confront the president by filing a lawsuit that would purport to compel President Obama to abide by his oath to execute the laws faithfully. Boehner would turn to the courts notwithstanding that (a) the Congress has its own constitutional weapons to rein in a lawless president; (b) the judiciary has no power to issue advisory opinions about the president’s behavior outside the context of an actual case or controversy; (c) the judiciary is not the president’s superior; (d) the judiciary has no power to enforce its judgments and would have to rely on the executive branch to carry out its orders; and (e) President Obama has a history of laughing off unfavorable judicial rulings the same way he laughs off statutory laws he finds inconvenient. (In fact, the IRS scandal was caused by the conspiracy of the Obama administration and some congressional Democrats to undermine the Supreme Court’s 2010 Citizens United ruling.)

Speaker Boehner’s office has just released a memorandum explaining the lawsuit strategy. It is an amazing document. It makes a strong case for a decisive legislative response to President Obama’s systematic assault on the separation of powers. Yet it recommends no such response. Rather, it falsely claims that Congress is impotent to challenge the executive onslaught, and finally proposes to confront the president’s disregard for our constitutional order with its own reciprocal disregard.

Speaker Boehner correctly points out that all Americans, regardless of partisan or ideological inclination, have an interest in stopping executive lawlessness because the imperial precedents President Obama is setting will be available for exploitation by every future president. Yet, Boehner is heedless of the precedent he proposes to set: Instead of Obama’s executive monarchy, we’d now be subjects of a judicial oligarchy—all future presidents, no matter how lawful their actions, would be subject to vexatious congressional lawsuits and court directives from the judiciary Obama has been stocking with hundreds of like-minded Leftists for the last six years. Putting aside the fact that this would put politically unaccountable judges in charge of all policy matters in our body politic, does anyone suppose that Democrats just might use Boehner’s lawsuit gambit as the basis for harassing a future Republican president that they lacked the votes to impeach or slash funding from?

The end of the Boehner memo is priceless. It contends:

Under our system of government, the Judicial Branch has the power to resolve disputes between the Executive and Legislative Branches. When there is a failure on the part of the president to faithfully execute the law, the House has the authority to challenge this failure in the Judicial Branch by filing suit in Federal Court in situations in which:

  • There is no one else who can challenge the president’s failure, and harm is being done to the general welfare and trust in faithful execution of our laws;
  • There is no legislative remedy; and
  • There is explicit House authorization for the lawsuit, through a vote authorizing the litigation against the president’s failure.

Everything asserted here is either untrue or abject nonsense:

If no one is in a position to “challenge the president’s failure” to follow the law, that is because no one has suffered a concrete personal injury that would provide the standing necessary for a court case — judges are not there to resolve power disputes between the political branches.
There is an institution that “can challenge the president’s failure” to execute the laws faithfully: It is the Congress.
And there is a legislative remedy: Congress has the power to defund executive-branch activities and impeach lawless executive-branch officials, including the president himself.

Either of those responses would stop the president’s lawlessness in its tracks. And sure, the leader of the opposition party controlling the House may well be able to pass an “explicit House authorization for the lawsuit” Boehner anticipates filing. After all, how hard is it to get a bunch of congressional Republicans to agree that punting to the courts is easier than rolling up their sleeves and doing their jobs? (See, e.g., Obamacare.)

Boehner’s problem is not that Congress lacks a responsive arsenal. It is that he is afraid of the administration and press criticism attendant to using it. That’s a political problem, not a legal problem.

Boehner and Beltway Republicans are essentially saying, “We can’t use our power because Obama and his media friends would say mean things about us. But our lunatic conservative base is demanding action. So let us file a lawsuit so we can say we did something. Who knows . . . maybe in a year or two we’ll get lucky and get a favorable ruling against Obama that can’t be enforced without Obama’s help.”

Now that’s leadership!