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John Boehner has delicious executive action cake, also enjoys eating it


Boehner. (Photo by Alex Wong/Getty Images)

Thursday was a rough day for members of the (newly inaugurated) House Republican leadership team. The main headline, of course, was the collapse of an effort to pass legislation addressing immigration after predicting that it would pass. But they didn't do them themselves any favors when they placed blame for the failure on inaction by the president.

Shortly after Speaker John Boehner (R-Ohio), Majority Leader Kevin McCarthy (R-Calif.), and Majority Whip Steve Scalise (R-La.) pulled the bill from the House floor, they released a statement that mentions failures by President Obama in the first three of its five sentences. It was the second of those three sentences that raised eyebrows: "There are numerous steps the president can and should be taking right now, without the need for congressional action, to secure our borders and ensure these children are returned swiftly and safely to their countries." Included in it was a link to a number of things that House Republicans suggest Obama should do (and stop doing) under his executive authority.

Which is why the eyebrows raised (mostly among progressives). The day before the collapse of the immigration vote, the House passed a measure initiated by Boehner -- approving a lawsuit against the president for abusing his executive authority. In a bit of unintentional foreshadowing, Obama responded to that lawsuit on Wednesday during a speech in Kansas City. "They’re going to sue me for taking executive actions to help people. So they’re mad I’m doing my job," he said. "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."

Boehner attempted to clarify the difference between what he is suing Obama for doing and what he is asking Obama to do in a tweet on Friday morning.

The lawsuit is pegged to one particular action by the president: his implementing a delay in the employer mandate provision of the Affordable Care Act. While complaints of Obama abusing his authority extend far beyond that action, the narrowly tailored authority granted under the H. Res. 676 focuses only on "implementation of any provision of the Patient Protection and Affordable Care Act, title I or subtitle B of title II of the Health Care and Education Reconciliation Act of 2010." Allowing Boehner to draw the distinction above: Obama's decision on Obamacare was outside of the law, necessitating the lawsuit.

It's a nifty move by Boehner. His memo to his colleagues in June clearly suggested that he agreed with the broad concerns on the right that Obama was rampantly acting without Congressional sign-off. It reads, in part:

On one matter after another during his presidency, President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce – at times even boasting about his willingness to do it, as if daring the America [sic] people to stop him.

But since the lawsuit only deals with one particular thing, Boehner can still criticize Obama for not taking executive action, as needed. There's an endless supply of cake in the Speaker's office, that you can eat to your heart's content.

Philip Bump writes about politics for The Fix. He is based in New York City.

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