House Speaker John Boehner’s planned legislation authorizing Congress to sue the president for failure to enforce the laws has been widely criticized. It’s symbolic! (Why yes, the Senate isn’t going to go along.) Impeach him instead! (Again, the Senate isn’t going to convict him, so that’s a loser, and recall how the impeachment effort 1998 wiped out usual second midterm gains for the party out of power).
Now a vote of censure might be procedurally more correct, and without the downsides of a loony impeachment crusade. It is also true that the mechanism under consideration likely won’t “work.” Critics of the bill recognize that courts generally stay away from fights between the branches. And while Congress has broad power to determine the jurisdiction of federal courts, it most likely doesn’t have the power to alter judicial rules on standing, case and controversy and the rest.
There really isn’t an alternative, so a symbolic bill sounds about right at this juncture. At the center-left Brookings Institute Web site, John Hudak observes that “the [Supreme] Court slapped down the President’s goal of redefining what a Senate recess meant in order to unilaterally (and temporarily) seat officers of the United States. It is a reflection of this Court’s willingness to rule decisively on the boundaries of presidential power vis-à-vis the power of the Congress—and that would seem to favor the Speaker’s efforts.” He cautions however that under Justice Breyer’s reasoning it will be hard for the court to intervene in an inter-branch fight if the conduct is in keeping with “longstanding” practice. Thus, he concludes, in these fights “presidents who act in ways similar to their predecessors may be in a better position to win.” And that is precisely where a bill and the legislative process that ensues should focus. It is up to the House to document the instances of executive overreach and distinguish them in number and severity from previous presidents.
Laying the factual predicate for the bill serves two purposes. First, if the bill has any hope of withstanding judicial scrutiny, this historical record will be helpful. Equally, if not more important, is the public education that will ensue. The House should hold robust hearings, calling constitutional excerpts of all stripes. Let politicians go on record on their views, the public see the administration’s track record laid out in full and the media consider why they are so much more ferocious in covering executive abuse when a Republican is in the White Hose than when a Democrat is. (Yes, I know, the notoriously non-reflective MSM won’t consider anything, but the rest of us can take note of the double standard.)
So Boehner’s bill is indeed a good idea when one considers it to be a vehicle for national discussion and not a solution to President Obama’s imperialism — which will be solved only when he leaves office and the voters look askance on candidates who share Obama’s view on executive power.