House Speaker John Boehner's (R-Ohio) plan to sue the president for failing to implement an unpopular provision of the Affordable Care Act is oddly specific. In a column for CNN on Monday, the speaker described a number of areas in which he feels President Obama has overstepped his authority and violated his oath to uphold the Constitution. Indeed, the military intervention in Libya or the expansion of domestic surveillance seem much more significant than the administration's decision to delay a portion of Obamacare that would affect only about 1 percent of the workforce anyway.
"It is strange, after eight years of the Bush administration, and after some of the unilateral actions that the president’s taken in the national security arena, that all of the emphasis seems to be on Obamacare," said Gene Healy, a vice president at the libertarian Cato Institute who has been critical of the expansion of executive authority in recent years.
Arguably, national security is the field in which Obama's arrogation of executive power has been most consequential, whatever your opinions about the policies his administration has pursued. In Libya, the president supported the rebellion against Moammar Gaddafi with military force without seeking Congressional approval, an action that many observers claimed was a violation of the War Powers Act. Boehner sent Obama a letter asking why the president had not sought authorization, and the House passed a resolution formally rebuking him -- but Republican lawmakers did not demand that Obama withdraw U.S. forces. The National Security Agency's broad surveillance of Americans has been based on inventive legal interpretations of federal statute, but Boehner opposed an amendment brought by Rep. Justin Amash (R-Mich.) that would have limited the agency's authority. (Though it was supported by both some Republicans and some Democrats, the amendment failed narrowly.)
Yet national security seems to be the one area in which conservatives have hesitated to criticize the president for abusing his authority, as Healy has argued. A white paper issued by the House Majority Leader Eric Cantor (R-Va.) catalogued dozens of examples from drilling to net neutrality. Some are worth considering seriously, others less so, but the paper omits any mention of national security. "The White House has no discretion to ignore laws except when they violate the Constitution," wrote John Yoo on Thursday, calling on Obama to enforce the law and deport undocumented immigrants brought to this country as children. That is an odd claim for the author of a crucial memorandum arguing that federal laws against torture did not apply to the Bush administration. Sen. Ted Cruz (R-Tex.) has claimed that Obama does not have the authority to decline to prosecute marijuana users where the drug is legal under state law. Yet if it's a question of enforcing laws, Conor Friedersdorf and others have argued that the Department of Justice is legally obliged to bring cases against former Bush administration officials who ordered and oversaw the torture of detainees.
This is not to say anything about the practical wisdom of any of these policies apart from constitutional concerns, which is a separate question. But here's what Boehner said Thursday in announcing the resolution: "This isn't about Republicans versus Democrats; it’s about the legislative branch versus the executive branch, and above all protecting the Constitution." By insisting that the president uphold the letter of the law when their party disagrees with him on policy and ignoring areas such as surveillance where there is bipartisan agreement, the Republican leadership in the House risks making this resolution look like a political stunt.
As Andrew Prokop has explained thoroughly, a lawsuit brought by Boehner would be very unlikely to succeed. "If courts buy into the speaker’s logic, it would likely open up a floodgate of lawsuits against the president," John Hudak, a fellow at the Brookings Institution, told me. "I don't think there is 'logic' to Boehner's argument," wrote Steve Vladeck, a law professor at American University, in an e-mail.
If, by some chance, the courts do validate the theory that houses of Congress can sue the president for failing to uphold the letter of the law, then one can only hope that legislators would not use that right solely to agitate the base.