President Obama enraged Republicans by declaring in his State of the Union address that he intended to act “with or without Congress” to advance his agenda this year, and since then, Speaker John Boehner has often claimed that the House isn’t getting things done because it can’t trust the president to enforce the laws it passes. On Wednesday, Boehner decided to stop complaining and do something, confirming that he intends to sue the president for failing to “faithfully execute the laws of our country — ignoring some statutes completely, selectively enforcing others, and at times, creating laws of his own.” However, the lawsuit is actually unlikely to accomplish anything — and not because Obama will use what Boehner calls his “king-like authority” to squash it.
Boehner laid out his case in a letter sent to members of the House on Wednesday afternoon:
On one matter after another during his presidency, President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce – at times even boasting about his willingness to do it, as if daring the America people to stop him. 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.
Many are interpreting this as a fight about executive orders, and have pointed out that President Obama actually signed far fewer than most presidents. That’s true, but Boehner is mainly talking about executive authority, which does not require an order or memorandum. As the Washington Post’s Philip Bump explains:
The immigration action [to stop the deportation of young people brought to the country illegally] went into effect via a letter from then-head of the Department of Homeland Security Janet Napolitano. As head of the executive branch, the president can instruct DHS to take an action, and they do — no order or memorandum involved. Same with the upcoming rules on reducing carbon dioxide pollution. Obama tells the EPA to draft rules; they draft rules.
Boehner said he plans to hold a vote in the House next month on legislation that will authorize the House to file a suit to “compel the president to follow his oath of office.” To accomplish this, he’ll go through the Bipartisan Legal Advisory Group (BLAG), which allows House Republicans to bypass the Senate. It’s the organization that Boehner used to continue fighting for the Defense of Marriage Act in 2011 after the White House said it would stop defending it. The House spent $2.3 million in taxpayer funds before the Supreme Court struck down the law a year ago.
Boehner insisted that the taxpayer-funded lawsuit is not part of an effort to impeach the president, or merely an attempt to fire up the Republican base before the midterms. However, it’s hard to see what else it could be. Politco reports that if the lawsuit goes forward, “it could take longer to work through the court than the roughly two-and-a-half years Obama will remain in office.” According to the New York Times, the House would need to prove that it has the standing to bring the case, “which usually requires showing that the plaintiffs have suffered a specific personal injury.” Boehner has yet to name the specific executive actions that he considers unconstitutional.
Stanley Brand, who served as the House’s general counsel under Democratic House Speaker Tip O’Neill, tells Reuters that U.S. courts are usually reluctant to get involved in vague disputes between the legislative and executive branches over the separation of powers. “They’re not referees of political disputes, they’re arbiters of concrete action,” he said. “The courts are not going to supervise a president that way. I don’t want to say it’s harebrained, but it’s close to it.”
