The Post reports: “House Republicans voted to proceed with a lawsuit against President Obama on Wednesday, saying that his executive actions are so extreme that they violate the Constitution. The nearly party-line vote — all Democrats voted against it, and all but five Republicans voted for it — further agitated an already polarized climate on Capitol Hill as both parties used the pending suit to try to rally support ahead of the November elections.” From the perspective of GOP leadership, the lawsuit is also an attempt to keep the party from diving off the impeachment cliff and to provide a coherent response to years of provocation.
As if to justify the House’s pushback, the president delivered another crude attack on Republicans: “They’re going to sue me for taking executive actions to help people. So they’re mad I’m doing my job. And by the way, I’ve told them I’d be happy to do it with you. The only reason I’m doing it on my own is because you’re not doing anything.” He really believes that separation of powers and checks and balances are sort of optional for a failing president?
Perhaps Obama just thinks his audience is stupid. His rhetoric certainly became juvenile as he progressed: “Stop being mad. Stop just hatin’ all the time.” You can always tell when the Harvard-educated lawyer is takin’ his audience for fools. (He drops his “g’s.”) It was another classless performance by a man who has given up all pretense of acting presidential. The talk show hosts on the far right, a handful of right-wing backbenchers and Beltway moneymaking groups – who wanted the shutdown and loved disastrous candidates ranging from Sharron Angle to Matt Bevin — bellyache that the lawsuit is useless and that only impeachment would be “serious.” (I’ll take advice from people who didn’t drive the party off a cliff once before.) The left disingenuously claims that the lawsuit is a prelude to impeachment, when in fact it is a reasoned substitute. But will it work? If it fails, it won’t be because the president didn’t overreach.
No president gets to act unilaterally simply because Congress won’t agree to give him what he wants. That’s a recipe for legal chaos and continual gridlock. The president has done this repeatedly on immigration law, Obamacare, labor law exemptions (telling employers not to follow the WARN Act notifying employees of potential layoffs due to the sequester), temporarily altering the work requirement that was at the heart of welfare reform legislation, and non-enforcement of drug laws. Democrats would be the first to cry bloody murder (of the Constitution) if a Republican president decided not to enforce collection of certain taxes, gave unilateral exemptions to environmental laws or allowed trading practices prohibited by securities laws. That is not the question (at least the biggest question).
If the House suit fails, it rather will be because judges, unlike Obama, take their constitutional role seriously. The courts do not inject themselves when there is no injured party or when an actual case doesn’t exist. Simply being furious that the president has gone too far is not the sort of injury that usually serves as the basis for a lawsuit. Congress has not had great success litigating an affront to its power from the president absent some identifiable harm (e.g. a litigant who lost in front of an illegally appointed member of the National Labor Relations Board).
David Rivkin and Elizabeth Price Foley ably outline the president’s egregious behavior, but that still begs the question as to whether Congress through the courts can seek redress. There are some wrongs, alas, for which the court does not provide a remedy.
Whether or not the House has the better of the legal arguments, the suit is worthwhile as a teachable moment (as the president likes to call clarifying events). The House and its supporters in court and in the court of public opinion can make the case that the president has behaved in new and wholly improper ways. The administration should be forced to defend itself, and perhaps take positions that may be problematic when a Republican president is in office. It will help inform the 2014 and 2016 elections, focusing the public on electing people who respect their roles and can work with other branches, not run roughshod over them.
The president has gone from aggrieved victim of congressional intransigence to lawless bully. It’s time someone, even in a symbolic way, called attention to this development. That, in turn, may temper the ambitions of constitutional menaces in future administrations. It will also be amusing to see liberal elites – who claimed President George W. Bush “shredded the Constitution” by issuing signing statements – cheer the concept of an imperial president, shorn of constitutional niceties (such as seeking legislation from Congress).