Speaker John A. Boehner, R-Ohio, told Republicans Tuesday he could have an announcement within days on whether the House will file a lawsuit against President Barack Obama, challenging the executive actions that have become the keystone of the administration.
The lawsuit could set up a significant test of constitutional checks and balances, with the legislative branch suing the executive branch for ignoring its mandates, and the judiciary branch deciding the outcome.
Boehner told the House Republican Conference during a closed-door meeting Tuesday morning that he has been consulting with legal scholars and plans to unveil his next steps this week or next, according to sources in the room.
Boehner spokesman Michael Steel said further action is necessary because the Senate has not taken up bills passed by the House targeting executive actions. The House has passed a bill expediting court consideration of House resolutions starting lawsuits targeting executive overreach and another mandating that the attorney general notify Congress when the administration decides to take executive action outside of what has been authorized by Congress.
“The president has a clear record of ignoring the American people’s elected representatives and exceeding his constitutional authority, which has dangerous implications for both our system of government and our economy,” Steel said. “The House has passed legislation to address this, but it has gone nowhere in the Democratic-controlled Senate, so we are examining other options.”
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What philosopher Harvey Mansfield calls “taming the prince” — making executive power compatible with democracy’s abhorrence of arbitrary power — has been a perennial problem of modern politics. It is now more urgent in the United States than at any time since the Founders, having rebelled against George III’s unfettered exercise of “royal prerogative,” stipulated that presidents “shall take care that the laws be faithfully executed.”
Serious as are the policy disagreements roiling Washington, none is as important as the structural distortion threatening constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different.
Regarding immigration, health care, welfare, education, drug policy and more, Obama has suspended, waived and rewritten laws, including the Affordable Care Act. It required the employer mandate to begin this year. But Obama wrote a new law, giving to companies of a certain size a delay until 2016 and stipulating that other employers must certify they will not drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so he created a new crime, that of adopting a business practice he opposes.
Presidents must exercise some discretion in interpreting laws, must have some latitude in allocating finite resources to the enforcement of laws and must have some freedom to act in the absence of law. Obama, however, has perpetrated more than 40 suspensions of laws. Were presidents the sole judges of the limits of their latitude, they would effectively have plenary power to vitiate the separation of powers, the Founders’ bulwark against despotism.
Congress cannot reverse egregious executive aggressions such as Obama’s without robust judicial assistance. It is, however, difficult to satisfy the criteria that the Constitution and case law require for Congress to establish “standing” to seek judicial redress for executive usurpations injurious to the legislative institution .
So the Speaker of the House can’t stop Obama’s pen unless he takes him to court.