Why Boehner is right to sue Obama
Congressional incompetence or inaction is not an invitation for an imperial presidency
Boehner seems to have the Constitution on his side. (Win McNamee/Getty Images)
Immigration reform is effectively dead in Congress. And now that Speaker John Boehner has officially decided not to bring up the Senate's comprehensive immigration bill for a vote in the House, President Obama is suggesting he may take executive action to shape America's immigration policy.
"I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing," Obama said Monday. "And in this situation, the failure of the House Republicans to pass a darn bill is bad for our security, it's bad for our economy, and it's bad for our future."
Obama's promise of executive action is bad news — even for supporters of immigration reform (and that includes me). Because even though I support immigration reform, I support the separation of powers even more. And this president has gone too far in flexing his executive ordering muscles.
That's why I'm applauding Boehner's decision to sue over Obama's executive orders. And you should, too — no matter which party you're in. (Whether Boehner has the legal standing to actually sue remains something of an open question — but the principle behind his push is dead on.)
"On matters ranging from health care and energy to foreign policy and education, President Obama has repeatedly run an end-around on the American people and their elected legislators, straining the boundaries of the solemn oath he took on Inauguration Day," a recent memo from Boehner said.
In pushing back, Obama's supporters have pointed to intransigence from congressional Republicans forcing Obama's hand, and to the fact that the president has still issued relatively few executive orders (fewer than any president since FDR, in fact). This is true, but also misleading. It's not the number of executive orders the president issues, but how consequential — or controversial — they are. And, coupled with recess appointments (the Supreme Court just unanimously ruled he overreached there), signing statements, and unilateral delays on ObamaCare's implementation (including the employer mandate and enrollment deadlines), it seems like Obama has cobbled together a patchwork of creative methods to circumvent the legislative branch.
We have a lame-duck president who already lost one one house of Congress, and may be on the brink of losing another. If Obama is to have any second-term domestic agenda, including a legacy item like immigration reform, his only path may be via executive order. But that doesn't make it right — or constitutional.
Of course, this executive order trend didn't begin with Obama, nor will it end with him. But that's why this lawsuit is important. Like the filibuster, this is one of those issues that tends to turn us all into hypocrites. Whichever party has the presidency will, almost reflexively, argue the need for a stronger executive. Meanwhile, whoever controls Congress will push back on that mission creep (remember how "unitary executive theory" was responsible for Bush's unchecked and dictatorial powers of detention and interrogation?).
So yes, of course, Boehner surely has partisan motives in suing Obama. But the salutary impact could transcend partisan political concerns, reining in executive power — or, at least, more clearly defining it — for President Marco Rubio or Ted Cruz or Hillary Clinton. At the end of the day, and long after Obama is out of office, we could end up with a decision buttressing the rule of law and balance of power. That would be a good thing.
But instead of taking it seriously, President Obama and his team have mocked this suit as a mere "stunt." Their dismissiveness, coupled with the arguments they've chosen to wield, present a worldview arguably more frightening than the original overreach. Obama, for example, has cited the fact that Congress failed to address these issues as reason why he has felt compelled to act. "I'm not going to apologize for trying to do something while they're doing nothing," he said.
That a misleading non sequitur. A constitutional law professor should knows better. Dysfunction or stasis are not invitations for executive overreach. I can't find anything in the Constitution that says: "Should Congress become bogged down in gridlock, the President may then assume legislative responsibilities." Congressional incompetence or inaction is not an invitation for an imperial presidency.
Backers of Obama's executive orders rarely argue the Constitution, but instead, the crux of their arguments usually boil down to the morality of his actions. But that's not really relevant. I'm for immigration reform and a supporter of the DREAM Act, but the notion that a president would simply decide which laws to enforce or ignore is a far more fundamental concern. Our founders intentionally created a balance of powers, and pit ambition against ambition. Just because you agree with the president today doesn't mean you'll agree with the next president's executive orders. Many executive orders, constitutional, or not, are good policy. But this power can be abused. Let's not forget that FDR's executive order 9066 paved the way for Japanese internment camps.
Be careful what you wish for. Because granting the president the power to ignore or overrule Congress is not a right that only applies to presidents you agree with.
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