By a vote of 225 to 201, the House of Representatives authorized Speaker of the House John Boehner to file suit against President Barack Obama on Wednesday. Five Republicans joined all House Democrats to reject the measure, which Obama has called a “political stunt.”
John Boehner and President Obama have had a turbulent relationship since the Republican lawmaker from Ohio succeeded Democrat Nancy Pelosi as Speaker of the House in 2011; and it has undergone many iterations. Their relationship did not begin with antipathy, but as political crises came and went, the two men evolved from virtually political strangers to political opponents, although they did occasionally partner in negotiations. Acrimony arose, destabilizing the relationship between Obama and Boehner, in 2011, when negotiations to reduce the U.S. deficit fell apart. The president claimed that Boehner gave up after realizing that the Republican party would not support the agreement’s significant tax increases, while the speaker said Obama had “moved the goal posts” last minute by demanding additional tax revenues. Acrimony only increased in November of last year, after the federal government shutdown for sixteen days because Republicans refused to pass needed funding legislation because it financed the Affordable Care Act.
But, with John Boehner announcing that House Republicans would sue President Barack Obama for misusing executive authority, political dysfunction has hit a new level. “This is not about impeachment,” Boehner said in a late June interview. “This is about faithfully executing the laws of our country,” added the speaker, whose political legacy is deeply intertwined with that of President Obama.
More specifically, Boehner has introduced legislation to allow House Republicans to sue President Obama for his overuse of executive orders.
What does Boehner’s suit say exactly?
According to a memorandum sent to Republican members of the House of Representatives, Boehner believes President Obama has overstepped the limits of presidential power put in place by the U.S. constitution.
“For years Americans have watched with concern as 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.”
“Article II, Section III of the Constitution of the United States dictates that the president, as head of the Executive Branch of our government, ‘shall take care that the laws be faithfully executed,’ even if the president does not agree with the purpose of that law. Under the Constitution’s separation of powers principle, only the Legislative Branch has the power to legislate.”… And “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 status he is sown to enforce –at times even boasting about his willingness to do it, as if daring the America [sic] people to stop him.”
“President Obama’s aggressive unilateralism has significant implications for our system of government, and presents a clear challenge to our institution and its ability to effectively represent the people.”
In Boeher’s opinion, that unilateralism has give the president “king-like authority,” which has “consequences for our economy and its ability to grow jobs.”
“…America does not stand still – and neither will I. So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do,” said Obama relatively early in January’s State of the Union address. In essence, that was a pledge to employ his executive powers and skirt the legislative process in order to bring economic opportunities to the middle class, a phrase that has become a tagline for the president’s second term. His words were meant to restore the American public’s confidence in his presidency after a year filled with setbacks to a political agenda that Congress has largely refused to support. But rather than addressing the polarization of Washington, he vowed to find a way around the problem.
Of course, such a pronouncement immediately sent shockwaves through the American political landscape. Obama’s critics in the Republican party saw his commitment to use his presidential powers to further his political agenda as an overstep. “Choosing to circumvent our legislative process and govern through executive power not only violates our constitutional system of checks and balances, but it poses a direct threat to our liberty,” said Oklahoma Attorney General Scott Pruitt in a statement released by the Republican Attorneys General Association.
But then White House Press Secretary Jay Carney said that “any president who doesn’t take advantage of the unique powers of the presidency to move the country forward would be depriving himself or herself of the capacity to move it more forward and to grow the economy further and to create more jobs.” Furthermore, he asserted that Obama would have pursued this strategy even if Democrats controlled the Congress. Boehner himself noted in the memorandum that presidents “have traditionally been granted a degree of latitude with respect to the enforcement of the law,” and tension between the branches of our government is hardly new. However, in this case, the speaker suggests Obama has attempted to “claim the ability” to make law, and that destabilizes the balance of government power.
To be clear, Obama made no explicit mention of executive orders in his address, but the State of the Union fact sheet released by the White House did. Under the headline, “Opportunity for All: Key Executive Actions the President Will Take in 2014,” it lists more than a dozen economic priorities — centered on jobs and wages — for the year that the administration will implement through executive order. He also hinted he would employ his presidential authority to pursue his domestic agenda in the first Cabinet meeting of the year. “I’ve got a pen, and I’ve got a phone,” he explained; the pen will be used to sign executive orders, and the phone to call outside interest groups to support his agenda.
Since January, Obama has issued executive orders establishing a strategic partnership office for Afghanistan and Pakistan, changing the name of the National Security Staff, establishing a minimum wage for federal contract workers, streamlining the import/export business, imposing sanctions against Russia regarding the situation in Ukraine, and establishing a board to investigate certain labor disputes.
Boehner’s memorandum referenced executive actions on health care, energy, foreign policy, and education, but it did not give any specific orders. “The whole memo is remarkably non-specific. That suggests it’s meant more as political propaganda,” wrote Paul Rothstein, a professor at Georgetown Law, in an e-mail to the Christian Science Monitor. Of course, the party could benefit from that political propaganda; after all November’s congressional midterm elections are drawing closer.
So, does Obama sign a lot of executive orders?
Obama has issued a total of 175 executive orders in the five and half years of his presidency. By comparison, George W. Bush signed 291 in his two terms, while Bill Clinton put his signature on 364. That means Bush issued an average of 36.4 orders per year and Clinton averaged 45.5 — both far higher than Obama’s average 31.8 executive orders per year.
Of course, it can also be argued that the Obama’s abuse of presidential power extends beyond his pen and phone. On Thursday, the Supreme Court unanimously ruled that Obama had overreached in issuing new appointments while Congress was in recess. In fact, the justices said the practice violated the Constitution. Where the court disagreed was on the extent to which the president’s recess appointment power should be limited. Four liberal justices, led by Anthony Kennedy, declined to nearly eliminate that capability, meaning the president will be able make temporary appointments when the Senate has been on break for at least ten days. “The court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need,” Justice Antonin Scalia wrote in a concurrence opinion, “into a weapon to be wielded by future presidents against future Senates.” And, as his comments show, President Obama’s broad use of his executive powers is not merely the concern of the legislative branch. Of course, Scalia, like Boehner, is a conservative.
What do the Democrats think of Boehner’s suit?
On Wednesday, the same day as Boehner’s lawsuit was made public, the Democratic Congressional Campaign Committee raised $584,000, according to figures shared with Politico, which was the organization’s best day of fundraising this year.
“The only jobs that John Boehner and House Republicans have created are for partisan lawyers to sue the president and our grassroots supporters are already holding them accountable,” Rep. Steve Israel (D-New York) — who also chairs the Democratic Congressional Campaign Committee — told the publication. “The hypocrisy here is stunning: President Bush issued many more executive orders than President Obama and Boehner didn’t make a peep. This is just another stunt from the most unpopular Republican Congress in history.”
What are the implications?
A number of political experts believe Boehner’s accusations are weak. “Like many criticisms of many presidents, policy disagreements stemming from presidential actions do not automatically make those actions illegal. Executive orders are no different,” wrote Broookings contributor John Hudak in late January. He believes that there is much misinformation circulating about executive orders “They are not an abuse of power, but a necessary presidential power critical to the function of government,” Hudak added. Furthermore, other branches of government have options to restore balance; lawmakers can pass legislation to rewrite the issue and courts can throw executive orders out.
The lawsuit has dim prospects — both legally and politically. Boehner’s main problem is that he is introducing legislation to allow House Republicans to sue the president, and any casual observer of congressional proceedings knows it is not simple task to pass a bill through Congress, especially one as politically controversial as this one. To become law, a bill must be approved by both houses and signed by the president. As for the legal complexities, a plaintiff needs specific complaints or charges to sue, and Boehner was very unspecific. In addition, if a suit is brought by a political body, rather than an individual, it will far more difficult to show the president’s actions have been harmful, given that the political body in question is political divided.
More importantly, it is clear is this lawsuit will do nothing to ease the political stalemate in Washington.
Should Americans be surprised Boehner is suing Obama?
At separate times, both the president and the speaker have insisted that they work together well, despite the major differences in their politics. “We get along fine,” Boehner during a January appearance on The Tonight Show with Jay Leno, “but you know we come at our jobs from a very different perspective.” But many political commentators have used far different words than well function to describe the interactions between the two men. In October of last year, when Republicans and Democrats searching for a budget compromise, the Wall Street Journal described the mood between the two parties as distrustful. And that word has been used as a descriptor many times.
Plus, evidence abounds that the working relationship between the Republican Boehner and the Democratic Obama is far less effective than other such political pairings in American history. For example, the relationship between Ronald Reagan, the conservative president behind ‘trickle down’ economics, and House Speaker and New Deal Democrat Tip O’Neill produced an agreement to extend the solvency of Social Security and a historic tax reform. Of course, the relationship was not perfect, but legislation happened.
Other Boehner quotes are more telling about his relationship with the president. Earlier this year the speaker announced that immigration reform would be nearly impossible to accomplish because House Republicans have widespread doubts “about whether this administration can be trusted to enforce our laws.”
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