The PJ Tatler

Boehner vs Obama: To Sue or Not to Sue

House Speaker John Boehner is drafting legislation that will enable the U.S. House of Representatives to sue President Barack Obama in federal court. Boehner lays out the case for such a lawsuit in this column for CNN. Boehner seeks to sue to halt Obama’s unilateral rewriting of laws, most notably Obamacare and immigration law.

There must be accountability. We have a system of government outlined in our Constitution with the executive branch, the legislative branch, and the judicial branch. Congress has its job to do, and so does the President. When there are conflicts like this — between the legislative branch and the executive branch — it is my view that it is our responsibility to stand up for this institution in which we serve, and for the Constitution.

If you look back over American history, there has always been a tension between the inherent powers of the executive branch versus the inherent powers of the legislative branch. This issue is as old as Marbury vs. Madison and as fresh as the unanimous Supreme Court ruling last week that the President overstepped his authority on recess appointments.

Over the last five years, starting — not coincidentally — when his political party lost the majority in the House of Representatives, the President has consistently overstepped his authority under the Constitution, and in so doing eroded the power of the legislative branch.

The legislative branch has an obligation to defend the rights and responsibilities of the American people, and America’s constitutional balance of powers — before it is too late.

Obama himself, as a senator and candidate for the presidency, repeatedly criticized President George W. Bush for unilateral uses of executive power. As president, Obama has gone much farther than Bush did. Obama has used fewer executive orders than Bush, but his have been more sweeping and have rewritten laws that were drafted by Congress. The president is not allowed to do this.

Boehner and the Republicans controlling the House have four options to counter Obama’s move. They could 1) do nothing; 2) impeach Obama; 3) cut off funding for some or all of the federal government to get Obama’s attention; or 4) sue him.

Conservatives aren’t united on which path Boehner should take. Pat Buchanan wants impeachment off the table. Erick Erickson thinks the lawsuit is just theater, and wants the House to cut federal funding instead. Erickson accuses Boehner of lacking “testicular fortitude” to fight Obama, which ignores the fact that the House has passed dozens of bills to repeal Obamacare and to rein in his executive overreaches. The House cannot pass bills into laws by itself. Without control of the Senate, Republicans’ options to stop the president are limited. Erickson admits as much when he says that the House GOP’s one “victory” over Obama — cut, cap and balance — did not succeed, except as a public relations move. A divided Congress just isn’t much of a threat to an ambitious president.

Buchanan is right, that impeaching the president will open up the GOP to accusations of racism for trying to remove the nation’s first black president. Any talk of impeachment before the mid-terms threatens to change the subject of the elections from Obamacare, the economy, and other issues to that single issue, which is sure to bring the president’s demoralized base back to vote for him one more time. Any talk of another government shutdown, or cutting off federal funding, also poses the risk of changing the mid-term election subject from Obama’s acts to Republicans’ acts.

Maybe that’s a risk worth taking. The results of the last government shutdown aren’t conclusive. Republicans were divided going into that one and spent as much time firing at each other as they spent noting that the Obama administration used the shutdown to punish veterans and national park users. Democrats and the media were united in painting it as a disaster for the country, even though it wasn’t. Most Americans didn’t really notice the so-called shutdown at all. There is little prospect that Republicans would be much more united in cutting off federal funds than it was during the shutdown. The GOP establishment just defended big-spending Sen. Thad Cochran against a conservative challenger.

Obama is surely and obviously aware that the divided Congress cannot act against him. It can’t pass bills to cut funding. It can’t repeal Obamacare. It can’t impeach him. It can’t do very much at all. He knows that a Congress united under Republican control poses a very different threat.

I’ve written about this before — Obama has hacked the Constitution. He is exploiting a weakness in it, as a hacker exploits weaknesses in operating systems and security programs. Obama is introducing malicious code into our system of government, in the form of a president who commits illegal acts because he knows that he can get away with it. Obama’s malicious code erodes the checks and balances that the Founders wrote into the Constitution to guard against a president becoming a government unto himself. It puts too much power in the executive branch, at the expense of the legislative branch.

So this is where we are. Obama has nearly unchecked power. He has lost via unanimous decision at the Supreme Court 20 times, including his unilateral appointments to the National Labor Relations Board, and has lost numerous cases along narrower votes including the Hobby Lobby decision. But those cases take years to wind their way through the courts. He pays no personal price for his overreaches. His leftwing base loves him for it. He cavalierly taunts Republicans “So sue me!”

Honestly, I don’t see Boehner’s lawsuit doing much good. The courts can be a remedy to overreaches by the other two branches, but the courts are guilty of overreaches themselves. Boehner’s lawsuit will take months if not years to be sorted out, by which time we will be past the mid-term elections and Obama may well have exited the presidency.

Boehner’s lawsuit may be theater designed to fire up conservatives who see him as doing nothing to stop Obama. If that’s what it is, the first signs are that it is failing.

The question remains, what should be done about the imperial presidency that Barack Obama is expanding? I’m afraid there is no good news on that front. The nearly half of the country that now depends on welfare and other social programs funded by the other half are unlikely to want a less powerful presidency. As we divorce ourselves more and more from our local churches, our local communities and from each other, more of us are going to turn to a national father or mother figure. We feel less free now, because we are less free now. Unfortunately, we’re choosing to be less free by electing the likes of Barack Obama.