Boehner’s law suit to define Executive Branch powers

Boehner’s law suit to define Executive Branch powers

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President Obama /
President Obama /

WASHINGTON, July 12, 2014 – With Congress’ summer recess looming, the next two weeks will be very interesting: House Speaker John Boehner has limited time to move his lawsuit against President Obama forward.

READ ALSO: Precedence shows Obama should be taking Boehner’s suit seriously

The suit is over the President’s alleged unlawful use of executive orders in order to selectively enforce laws and not enforce laws, and generally to use executive order to move forward his agenda, which Boehner considers politically motivated.

Obama claims that obstructionist Senate Republican who will not work with him are the reason he needs to act unilaterally.

Boehner’s office released a draft resolution outlining the suit on Thursday. The suit says that the President overstepped his executive powers when he chose to delay enforcement of the Affordable Care Act provision that says firms with more than 50 employees must provide health insurance coverage to their workers.

President Obama then granted a second delay to businesses employing 50 to 99 workers, extending their time to comply. Due to the flaws in the ACA that placed an undue burden on those employers, Republicans also supported the delays, but they argue that the president and Congress must act together to change the law. They do not support Obama’s decision to do it himself, creating a slippery slope that allows the executive to choose which laws to enforce and when. That power would essentially allow Obama, and future presidents, to unilaterally re-write the law.

READ ALSO: John Boehner’s red line: Framing the presidential lawsuit

Republicans consider this a symptom of Obama’s larger overreach; if Nixon was imperial, they consider Obama positively monarchical. They want to check Obama’s unilateral use of power; while Republicans and Democrats alike supported delaying ACA’s “employer mandate,” the next “executive action” may not be as palatable.

Boehner and Republicans are not generally calling for impeachment. Boehner is not supporting a recent cry by Sarah Palin, who asked when Republicans in Congress will develop the “cojones” to impeach the president.

Instead, Boehner hopes the “impeachers” will join him on the lawsuit that will, he hopes, limit the use of Executive Orders for all presidents to come.

“If this president can get away with making his own laws, future presidents will have the ability to as well,” Boehner said on Thursday. “The House has an obligation to stand up for the legislative branch, and the Constitution, and that is exactly what we will do.”

The Supreme Court has taken a stand against presidential overreach, unanimously declaring Obama’s “recess appointments” to the National Labor Board illegal, and unanimously rejecting his administration’s stance on searching cell phones and bulk collecting data, calling it a violation of the Fourth Amendment. In Hobby Lobby, a divided court put limits on the ACA’s power to dictate types of health insurance coverage, and House Republicans will use ACA as the wedge against executive orders.

READ ALSO: Johnny the joke: Boehner’s lawsuit is Republican “Shadow Theater”

By filing this suit, Boehner will help to quiet those Republicans who say he is doing nothing to protect the Constitution, while avoiding creation of impeachment chatter, in contrast to House Democratic leader Nancy Pelosi several years ago when she called for President George W. Bush to be impeached over the Iraq war.

Pelosi’s call for impeachment seems to have been due to the unpopularity of the war in Iraq rather than in any specific violation of the law by the Bush Administration.

The U.S. Congress passed the Authorization for Use of Military Force Against Iraq Resolution of 2002 with heavy bipartisan support. U.N. Resolution 1441 unanimously passed on November 8, 2002, giving Iraq “a final opportunity to comply with its disarmament obligations” that had been set out in several previous resolutions.” Iraq’s failure to comply with U.N. investigators gave the U.S. the legal justification to invade.

The Constitution specifies that impeachment of a president is for “high crimes and misdemeanors.” During the Bush presidency, some legal scholars suggested that an indictable offense wasn’t necessary to launch impeachment against an inept or dangerous administration. The idea of making impeachment equivalent to a parliamentary vote of “no confidence” is antithetical to our system of government, however, and it is not likely that Americans will support an overtly political attempt to impeach even an unpopular president.

Boehner has undoubtedly calculated that movement in the direction of impeachment will further divide the parties and America, making an already weak government entirely ineffective at a time of crisis, at home and abroad. Impeachment without a clear, indictable offense would create an ugly wound on the body politic that would take years or decades to heal, muster support for an unpopular president, and cause more harm than good.

The law suit, however, might be a defining moment for the divided government and people. It may help establish in court some clear limits on presidential authority to use executive orders for more than administrative, ministerial ends. At the least the GOP will hope it ensures that there will be no “pen and phone” actions out of the White House during this recess.

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