Boehner’s Feckless Plan to Sue Obama

I wrote about the GOP strategy to nowhere in Faithless Execution:

Many Obama critics look hopefully to the 2014 midterm elections, calculating that a Republican landslide will put the GOP in control of both houses of Congress, which will purportedly derail Obama’s onslaught and end the constitutional crisis. This is wishful thinking. Even if we assume for argument’s sake that Republicans will have a big electoral victory in the fall, there would be little prospect of stopping the president.

Right now, Republicans control the House of Representatives, in which the Constitution vests primacy over taxing and spending. With a 45 seats in the Senate, where minorities enjoy power they do not have in the House, Republicans also have the votes, right now, to stop new Obama initiatives and to support the House were the latter to stop financing the president’s excesses. Yet, cowed by the Obama-friendly media, they have offered nothing but token resistance. Republicans are paralyzed at the very thought of using the power of the purse. The lone time House conservatives did so – in attempting to defund or delay the implementation of Obamacare in 2013 – they were savaged by Beltway GOP leadership.

I do not see any of this changing after the midterm elections. Even if Republicans win, the same Republican leaders will still be running the show. Moreover, Republicans are not going to come close to winning numbers that would enable them to override Obama vetoes. As a practical matter, that means the president will not need to veto many bills – unlike Republicans, disciplined Democrats would stick together in the Senate and coordinate closely with House progressives to kill any legislation aimed at rolling back Obama’s agenda. Thus, if past is prologue, Republicans will not even try. They will shrug and tell us fighting is pointless.

Perhaps more significantly, American presidents have enormous power over the conduct of foreign affairs and over the direction of the sprawling executive bureaucracy. If Congress becomes more of a dead-end for Obama than it is now, he will simply redouble his determination to rule by international agreements and executive orders – to be imposed on Americans by the administrative agencies that run the country day-to-day, and by the federal courts whose benches the president has been filling with hundreds of like-minded progressives since 2009.

The Constitution provides two avenues for reining in presidential lawlessness: Congress’s power of the purse and Congress’s authority to impeach the president. They are extraordinarily powerful remedies … but they are the only two available. Some lawmakers appear to think there is a third: Unwilling or unable to persuade their colleagues to use the constitutional powers available to the legislature, they hope to have the courts do the work for them – and to look, in the process of filing ballyhooed lawsuits against the administration, like they are mounting real resistance. It is, however, a feeble strategy. [See here and here.]

It is not the purpose of the judiciary to resolve national controversies. The federal courts were created as a subsection of government to remedy individual injuries, and they were given no power to enforce their judgments. That, indeed, is why Alexander Hamilton [in The Federalist, No. 78] anticipated that the judiciary would be the “least dangerous” branch: Controlling neither sword nor purse, it would be “least in a capacity to annoy or injure” the “political rights of the Constitution.” In fact, the law of “standing,” which addresses what grievances litigants may bring before courts, teaches that the more a controversy affects the body politic rather than the individual citizen, the less appropriate it is for judicial resolution. It is for just such controversies that we have political rights.

American jurisprudence counsels the judiciary to stay out of “political questions” – disputes between the two political branches over the extent of their competing authorities. Most judges will not give such suits the time of day.

Even if some unexpectedly do, litigation takes years to resolve. When it finally ends, we are reminded that courts have no power to enforce their own orders. Indeed, the Obama administration is already scoffing at judicial rulings that, for example, stripped the federal government’s power (under the 1965 Voting Rights Act) to “pre-clear” state election laws (such as new “Voter ID” provisions to uphold the integrity of elections); and that invalidated the president’s “recess” appointments – when Congress was not in recess – to the National Labor Relations Board. [See here and here.] When a federal judge in New Orleans ruled that the administration’s moratorium on deep-water drilling following the BP oil spill was illegal, the administration simply stopped issuing drilling permits, continuing the lawlessness by other means. [See here and here.]

In the unlikely event judges presume to rule against the president, they must depend on his executive branch subordinates to enforce their directives. Good luck with that.

If the Congress is unwilling to use its command over the treasury to coerce the president into heeding the limits of his power, impeachment is the only other alternative to the current Congress’s obviously preferred course of abdication. If you won’t defund malfeasance, you have to remove it … or accept it. There is no other course. Plus, as we shall see, the Framers saw impeachment as the appropriate response to presidential corruption, lawlessness, and infidelity to the Constitution. It is the designed tonic for faithless execution.

Yesterday in National Review Online, I argued that the House of Representatives should commence impeachment proceedings against any IRS or other executive branch officials who have been involved in either the revenue agency’s blatantly unconstitutional harassment of taxpayers over their political beliefs or the executive branch’s willful obstruction of Congress’s investigation of the scandal. As I’ve acknowledged in Faithless Execution, it is reasonable restraint on the GOP’s part to resist filing impeachment articles against a lawless president when there is insufficient public support for his removal from power. There is no excuse, however, for failure to take action against corrupt or incompetent subordinate executive officials, especially those at a deeply unpopular agency that Democrats would dread being put in the position of defending.

That would be meaningful action that the president’s opposition could take today. For GOP congressional leadership to try to sue the president in lieu of Congress’s real constitutional remedies would be a feint of action that would be revealed as meaningless a few months or years from now.