John Boehner’s red line: Framing the presidential lawsuit

House Speaker John Boehner speaks out about Presidential lawsuit (screen shot)
House Speaker John Boehner speaks out about Presidential lawsuit (screen shot)

WASHINGTON, July 6, 2014 — John Boehner has drawn his line in the sand, explaining his decision to “sue” the President in press release and CNN editorial.

It is an uncharacteristically proactive move for a Speaker who is often seen as passive. Perhaps Boehner recently read the Declaration of Independence:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

President Obama has repeatedly taken up his pen and phone to enact executive orders to propel his agenda. He does so brazenly, claiming that Republican obstructionism forces him to take action because they won’t.

The president’s claim is that something must be done, and if Congress won’t act, he will.

“They don’t do anything except block me and call me names,” Obama said in an economic speech that concluded a two-day visit to Minnesota.

The official White House response to Boehner’s law suit is that they don’t care. They plan to ignore it:

Democrats and liberal media point out that Obama has issued fewer executive orders than Bush, Reagan or Nixon. But that statistic does not tell the whole story. Most executive orders are administrative, not infringing on rights or intruding on Congress’s prerogative to make law. Orders like FDR’s imprisonment of Japanese-Americans in internment camps during World War II or Truman’s attempt to nationalize American steel mills are relatively rare. To claim that Obama is less imperious than Reagan based on the number of executive orders entirely misses the point.

At issue aren’t the orders Obama issues that are ministerial and discretionary, but the ones that usurp the powers of Congress and rewrite federal law. Forbes writes, “even John Locke defended the principle of executive ‘prerogative,’ in 1690, as long as it violated no rights.”

Executive orders are valid so long as they don’t violate other provisions and rights.

Forbes further explains that, “Not until 1952 were specific rules and guidelines given for what a president could or could not via executive orders. In Youngstown Sheet & Tube Co. v. Sawyer (1952) the Supreme Court invalidated Truman’s decree on steel mills, on the grounds that he was attempting to make law (a legislative function), not merely carrying out (or ‘executing’) existing law. Presidents since that decision have tried to cite the specific laws they are acting under, when issuing new executive orders.”

Do statistics showing that other presidents, even Republican presidents, have used executive orders to run their administrations justify Obama’s actions? Other stats show that 13 times the Supreme Court, in unanimous votes, has rebuked the Obama Administration’s positions. This includes opinions, like last week’s rejection of Obama’s illegal NLRB recess appointments, directly aimed at presidential overreach. Obama’s use and threatened use of executive orders with regard to immigration look like attempts to create legislation that Congress has refused to pass, and to restructure existing legislation. These are in line with his record of overreach, and are fundamentally unconstitutional.

As Forbes points out, U.S. courts have overturned only two previous executive orders: Truman’s order on steel mills, and President Clinton’s 1995 order to preclude the federal government from contracting with firms that had strike-breakers on their payroll.

Boehner’s suit is not about the use of executive orders to advance an agenda, but about their use to defy or rewrite our laws to fit his agenda. That he is not adhering to the laws of the Constitution he has sworn to uphold.

We are a country of laws. Boehner’s lawsuit takes that tenet as a starting point. His statement to lays out the legal basis for a resolution to sue the President.

Every member of Congress swore an oath to preserve, protect and defend the Constitution of the United States. So did President Barack Obama.

But too often over the past five years, the President has circumvented the American people and their elected representatives through executive action, changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold — at times even boasting about his willingness to do it, as if daring the American people to stop him.

That’s why, later this month, we will bring legislation to the House floor that would authorize the House of Representatives to file suit in an effort to compel President Obama to follow his oath of office and faithfully execute the laws of our country.

The President’s response: “So sue me.”

(Read the full remarks here)

On CNN’s “State of the Union with Candy Crowly, Stephanie Miller of “The Stephanie Miller Show” called it a midterm stunt.

Sean Spicer, communications director for the RNC says that the “House of Representatives and the Senate have a role defined by the process, and that’s how the process works and the president may not like them, or be frustrated by them, but that does not mean he can go around them.”

Republicans and Democrats are absolutely not going to agree. The lines are drawn. Democrats say that the president’s poll numbers are consistent with those of most presidents, including Nixon, Reagan and Bush. They had their scandals: Watergate, Iron-Contra, the Lewinsky affair.

Obama has a new scandal every week, it seems. Children being shipped into the U.S. from Central and South America, the VA Scandal, IRS and Obamacare, not to mention Benghazi, Fast and Furious, NSA.

We are absolutely at a cross roads. Can America survive? We just marked our Declaration of Independence from Britain’s tyranny. As Senior Political Editor Jim Picht writes:

America is an old nation, but still young enough to reinvent itself when it must. We will always do better when we love our neighbors than when we fear them, when we light candles than when we curse the darkness.

We have a lot to celebrate today, but in the celebration, let’s remember the spirit that animates our laws, and in that spirit, let’s light candles, even fireworks of the spirit. We are a good nation, but we can always be better.


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  • Mell

    The really bizarre part of all this is that Boehner always use “The American People” like the US is made up of Republicans and Tea Party People.

    How delusional/stupid and please don’t use “The American People” tax money that are not made up of your kind for such no sense action.

    RIP GOP.

  • gocart mozart

    Specifically, which executive order violates the constitution and why. Note: “Because I said so” is not a good reason. Don’t pull a Boehner.

    • Randy Sparks

      You are exactly right…obama has no right to change the laws”because he says so” or choose which ones he may consider valid. He swore an oath and he has failed miserably to uphold that oath.

  • Thomas A. Rice

    You mean the part where he picks which immigration laws to enforce? Or changes the existing Obamacare law to delay the employer mandate until 2016? He doesn’t get to ignore or revise laws. Is that specific enough for you?