Speaker John A. Boehner’s plan to sue the president for overstepping constitutional boundaries has produced a cascade of volume and verbiage in media echo chambers. In a memo to his colleagues, Boehner explained, “President Barack Obama has declined to faithfully execute the laws of our country — ignoring some statutes completely, selectively enforcing others, and at times, creating laws of his own.” The president in return has called the suit a “stunt” and waste of taxpayer dollars.
I give the speaker two cheers for standing up for the institution of Congress in the face of what he perceives as questionable unilateral actions by the president to get what he wants. The president did give Congress fair warning of his intentions last January when he said, “We’re not just going to be waiting for legislation in order to make sure we’re providing Americans the kind of help they need.” He added, “I’ve got a pen and I’ve got a phone…and I can use that pen to sign executive orders and take executive actions….”
The speaker’s initiative is designed in part to divert and relieve pressures from some in his party who want to impeach the president — something that would be politically suicidal and downright stupid. However, I have withheld the third cheer for the speaker’s stand because I think the judicial route is a long shot and the wrong shot.
It is a long shot because the odds are heavily against Congress being granted standing as an injured party in the president’s delay of the health care act’s employer mandate which is the target of Boehner’s suit. Even if Congress clears that hurdle, the courts would likely dismiss the suit as a “political question” between the branches — something in which courts have traditionally been reluctant to intervene.
It is the wrong shot because Congress should not be entrusting its fate to the third branch of government. If Congress clears the first two hurdles, the Supreme Court could well rule against it: hard cases make bad law and mad lawmakers. Even if not, such a precedent can only enhance the powers of the courts if either of the first two branches can go running to them any time it has a dispute with the other branch and expect intervention.
I am reminded of hearings before the Joint Committee on Congressional Operations in February 1974 on “Congress and Mass Communications.” The hearings were prompted by a persistent 20th century concern that the legislative branch was losing public confidence, power and stature vis-a-vis the executive, in part because the president dominates the airwaves (though President Richard Nixon’s press at the time wasn’t all that great in the wake of Watergate scandal revelations).
My boss then, GOP Congressman John B. Anderson of Illinois, cautioned the committee against falling into the “media mandate trap” of tailoring legislative behavior and actions to maximize media coverage. He quoted Yale law professor Alexander Bickel’s testimony earlier in the decade on war powers: “The way for Congress to resume control over the foreign and war policy of the United States is to resume. The way to redress the balance is to redress it — by action.” Paraphrasing Bickel’s sentiments, Anderson said: “The way for Congress to make the news is to make news. The way to redress the balance is to redress it — by action.”
House Republicans are understandably angry over the president’s repeated assertions they have not taken action to help the middle class when in fact they have enacted several jobs-related bills and passed dozens of others that have gone nowhere in the Senate. Meantime, the president is doing what his predecessors have done by acting unilaterally to implement his agenda.
Whether Obama is pushing the constitutional envelope or shredding it is a matter of interpretation. Regardless, the two branches can better address their differences by reengaging each other in the national interest than by waging perpetual spitting matches in the national media.
Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.