House Speaker John Boehner took to yesterday to continue to tout his intention to sue President Obama for “[circumventing] 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.” This notion that Obama is willfully lawless and exercising powers above and beyond the Constitution has me side-eyeing so hard right now.

Last month, I dealt with the president’s increasing reliance on executive orders to get around a recalcitrant Republican majority in the House and minority in the Senate to get anything done. Despite the hysteria from the right, Obama has issued fewer of them than any of his predecessors since Grover Cleveland in the late 1800s, according to a study by John Hudak at Brookings. Now, it’s time to deal with signing statements, which is a legal way for the president to reinterpret or ignore the law he is signing if it conflicts with his view of executive authority. As you know, I’m not a fan of them. But they are hardly unconstitutional and Obama hasn’t abused their use in number.

Kevin Evans of Florida International University told The Post’s Karen DeYoung last month that President George W. Bush “used signing statements to challenge about 1,200 provisions of 172 laws he signed — twice as many as all his predecessors combined.” Meanwhile, Obama “has issued close to 30 signing statements; in the 2013 Defense Authorization Act alone, he challenged more than 20 sections of the law,” DeYoung reports. “Among the challenges have been assertions of his power to close Guantanamo Bay, for instance, and to disregard whistleblower protections.”

The DeYoung article points out that use of signing statements were “relatively rare until Ronald Reagan began using [them] as a means of asserting the power of the executive against the legislative branch.” Thanks to Tobias Gibson, a political science professor at Westminster College in Missouri writing at Monkey Cage, we know Samuel Alito is the reason.


Before Bush nominated Alito to the Supreme Court in 2005, he had been a Reagan-appointed deputy assistant attorney general in the Office of Legal Counsel. In 1986, Alito penned a six-page memo that provides the legal underpinnings for expanded use of signing statements by the president. The subject of the opinion says it all: “Using Presidential Signing Statement to Make Fuller Use of the President’s Constitutionally Assigned Role in the Process of Enacting Law.”

Our primary objective is to ensure that Presidential signing statements assume their rightful place in the interpretation of legislation…..
The novelty of the proposal previously discussed by this Group is the suggestion that Presidential signing statements be used to address questions of interpretation. Under the Constitution, a bill becomes law only when passed by both houses of Congress and signed by the President (or enacted over his veto). Since the President’s approval is just as important as that of the House or Senate, it seems to follow that the President’s understanding of the bill should be just as important as that of Congress….
From the perspective of the Executive Branch, the issuance of interpretive signing statements would have two chief advantages. First, it would increase the power of the Executive to shape the law. Second, by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history.

This view of presidential power is accepted on the right and the left. Laurence Tribe, the renowned Harvard constitutional law professor who taught Obama and went on to advise him during his first campaign, is among them.“The objection to signing statements is completely misplaced,” he told me yesterday via e-mail. “There is nothing at all wrong with a president signing a bill and simultaneously giving everyone, including the executive officials who answer to him, notice of how he intends to interpret and apply the bill he has signed, as well as notice of any provision that he regards as constitutionally void even though it has not yet been struck down by the Supreme Court.”

Tribe, co-author of  “Uncertain Justice: The Roberts Court and the Constitution” with Joshua Matz, went on to say, “The proper objection is not to the fact that a signing statement has been issued, but to the substance of a particular statement. For example, if a signing statement reflects an essentially unlimited view of presidential power and rests on the premise that Congress has no authority to regulate the exercise of that power, then we are all better off knowing in advance that that is the president’s position — a position that is, in my view, indefensible. But it is not the fact of a signing statement having been issued that is indefensible; it is what particular signing statements SAY in a particular case that may reflect an exaggerated view of presidential authority.”


So, there is nothing extraordinary about Obama’s use of executive orders or signing statements. But Boehner makes strong allegations against Obama without articulating specific violations of the separation of powers. That’s not to say there aren’t areas of concern. When I asked Tribe last month about whether Boehner would have standing to bring what I called a frivolous lawsuit, he was not as skeptical as I thought he would be.

The House as an institution may well have standing to challenge at least some of the President’s unilateral suspensions and revisions of statutory deadlines and specific mandates in the Affordable Care Act and other congressional legislation, including legislation governing deportations. It’s not an open-and-shut case, but the House would have at least a plausible basis for claiming standing.
On the merits, at least some of the actions the House might challenge are probably consistent with the separation of powers, but others arguably are not.

This makes sense. I totally get it. We should at least judge Boehner’s lawsuit on the merits. But what is so dispiriting is that the motivation behind the litigation strikes me as less about having a principled fight over the separation of powers and more about doing serious harm to this president and his ability to get anything done. That’s why I’m convinced that Boehner’s sideshow of a lawsuit is really a dress rehearsal for impeachment.

Once Boehner’s raucous caucus and their constituents realize that such litigation probably would not be resolved until long after Obama left the White House, I have no doubt they will insist he be punished while in office. If the GOP succeeds in taking the Senate in the November midterms, then impeachment becomes a scarily viable option.

Follow Jonathan on Twitter: @Capehartj