COLORADO SPRINGS, July 31, 2014—Today the House voted 225-201 to sue the president for executive overreach. The bill is H.R. 676, Authority to Initiate Litigation Against the Executive Act. The vote was almost entirely along party line. No Democrat dared to vote for it and five Republicans voted against it.
Colorado’s Doug Lamborn (CO-5), a leading conservative in the House, was among those who voted for the bill. The vote garnered predictable reactions from House Minority Leader Nancy Pelosi, who said she could see no reason for the Republican effort unless it’s a precursor for impeachment.
Constitutionally, she is quite wrong—as usual.
The Framers of the Constitution were very concerned with executive overreach. In the decade preceding the Revolution, Patriot writers wanted to believe that what the British government was doing in the colonies was a result of ministerial policy or Parliamentary action. They did not want to believe that King George III would countenance these activities if only he were approached by the colonists. But when the king refused to give colonial petitions a hearing, they began to realize that he was in fact at the center of the tyranny against the American colonies.
Thus, the Declaration of Independence directly blames the king for “the long train of abuses” enumerated in the document.
The Articles of Confederation contained no executive. As they crafted a written Constitution for the united States, the Framers realized that an executive was needed and they mulled several proposals, including a three-man executive committee. They finally settled, of course, on a single executive bound by the legislature.
But what to do if the executive were to exceed his bounds?
There are two and only two remedies: the Congress can impeach the president (and any executive branch appointee for that matter) and they can use the power of the purse to reign in his activities. The Republicans today chose neither course. Instead, they’re asking the third branch to step in and referee the dispute.
When Ms. Pelosi myopically says she can see no other reason other than as a precursor to impeachment, she is wrong because the House needs no precursor. Articles of impeachment have been drawn up against three presidents already.
The lawsuit strategy is itself not Constitutional. Rather than a precursor to impeachment, it looks more like an alternative—and a weak one at that.
The president is taunting Republicans. “Impeach me if you dare,” he seems to be saying.
He knows that unless voters break the stalemate in the Senate nothing that the House has tried to do will go anywhere. Republicans are frustrated at being unable to get their legislation through the Democrat-controlled Senate and having to watch as the president tweaks, waives or ignores laws Congress has written but which he dislikes.
What is to be done?
Speaker of the House Boehner said there were no plans to pursue impeachment and that Democrats are the only ones talking about impeachment because it’s a successful fundraising tactic for them.
That’s not quite true: Allen West has been fundraising on impeachment as well, and Sarah Palin has been playing to conservative audiences talking about impeachment.
It is almost as if the smaller the probability of impeachment, the greater the talk about it.
The lawsuit’s chances for success are questionable. The courts are reluctant to take sides in a dispute between the two “political branches.” One can look at Justice Robert’s Obamacare decision in 2012 in that light. If it is unconstitutional, let the Congress overturn it.
Those who voted against the lawsuit may have been in the right, including Rep. Steve Stockman of Texas—a serious liberty-minded man. Walter B. Jones of North Carolina, another Republican who voted against, said “This lawsuit is merely an act of political theater that is highly unlikely to result in any real consequences for an executive branch that continues to display a blatant disregard for the rule of law.”
Rather than sue, he said, the House should either impeach Mr. Obama or use its power of the purse to cancel Mr. Obama’s actions.
So far, the House has been unwilling or unable to use the power of the purse. They are set to give the president exactly what he’s asking for in supplemental funding for the border crisis—this despite amendments being offered that would restrict his backdoor amnesty.
Sarah Palin said at the Western Conservative Summit in Denver earlier this month that “Americans don’t do kings.” Indeed we do not. The current president would do well to remember that.