Column: John Boehner Is Right About Executive Orders, but His Timing Is Off
Republicans, after years of squabbling with President Obama, have decided to resolve their differences with him according to a time-honored American tradition.
They are going to sue him.
“What we’ve seen clearly over the last five years is an effort to erode the power of the legislative branch,” House Speaker John Boehner said Wednesday, confirming his plans to take Obama to court. “I believe the president is not faithfully executing the laws of our country, and on behalf of the institution and our Constitution, standing up and fighting for this is in the best long-term interest of the Congress.”
Boehner is mostly right about the problem, if not the time frame. The executive has been amassing power at the expense of the legislative branch — not just for the past five years but for a generation or more. Yet Boehner’s proposed legal remedy will accomplish nothing, in part because it misidentifies the nature of the problem.
To sue the president, Republicans are tying themselves in ideological knots. After howling about excessive lawsuits, they are embracing long-shot litigation. After lamenting activist judges, they are now insisting that judges be more activist and shed their long-standing reluctance to adjudicate disputes between the elected branches.
Even some conservative scholars argue that lawmakers probably don’t have a legal standing for such a suit. If Republicans persuade the courts to grant them standing, the case could take years to work its way through the system, at which point Obama will be gone. Adding to the charade, the taxpayer-funded legal fight would be waged under the authority of the Bipartisan Legal Advisory Group, which is bipartisan in name only, because it is controlled by the House majority.
But the real problem with the lawsuit approach is that it misunderstands the cause of the problem: congressional dysfunction. Lawmakers, hamstrung by disagreement, have created a power vacuum, and presidents have stepped in to fill it. The solution is not to sue, but to legislate, which means to compromise — something Boehner’s troops have been unwilling to do.
Boehner demonstrated the vacuum on Wednesday in his weekly news conference. His thoughts on a Senate highway-funding bill? “We’ll await — let the Ways and Means Committee do their work.” Any suggestions about what to do in Iraq? “It’s not my job to outline for the president what tools he should use or not use. It’s not my job to outline the strategy for the president when it comes to the overall fight against terrorism. I don’t have as many tools at my disposal as the president does.”
How about legislation on the Export-Import bank? “We are just going to have to sort our way through this.” But surely Boehner has a view? “No, I’m not going to answer the question. You know, you’ve tried to do this on immigration for the last two years. ... I want to get our members to a place where they are comfortable, whatever that is.” As for what to do about the flood of children emigrating north from Central America, Boehner said that he named a “working group” that eventually will “suggest to the administration things that we think can be done.”
Is it any wonder that the president takes executive action in response to such legislative inaction? The only positions the speaker took with any confidence were his criticisms of Obama:
∎ “The president has no plan for economic growth.”
∎ “The White House won’t lift a finger to provide the truth to the American people.”
∎ “Not only does the president regularly ignore the law, he brags about it.”
Hence, the lawsuit. “You know, the Constitution makes it clear that a president’s job is to faithfully execute the laws, and in my view the president has not faithfully executed the laws,” Boehner said.
Russell Berman of The Hill newspaper asked the logical question: “Could this lead to an impeachment proceeding?”
“This is not about impeachment,” Boehner rejoined.
CNN’s Deirdre Walsh asked whether the lawsuit is really “more about energizing your base right before the election?”
“This is about defending the institution in which we serve,” the speaker said.
After Boehner left, Walsh pointed out to his spokesman, Michael Steel, that the legal challenge could outlast the Obama presidency. “What does this achieve?” she asked.
Before Steel could answer, The Washington Post’s Paul Kane offered one droll hypothesis: “It sets the parameters for President Clinton — what she is allowed to do.”
Dana Milbank is a Washington Post columnist.