July 8, 2014

House Appeals to Referee Over Executive Abuse

John Boehner writes of the constitutional oath, but his plan to counter Obama is weak.

House Speaker John Boehner (R-OH) reminds us in an op-ed for CNN, “Every member of Congress swore an oath to preserve, protect and defend the Constitution of the United States. So did President Barack Obama.” We regularly trumpet that established fact as well. So what’s Boehner going to do about it?

He’s planning to sue the president. “[T]oo often over the past five years,” Boehner writes, “the President has circumvented 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 – at times even boasting about his willingness to do it, as if daring the American people to stop him. That’s why, later this month, we will bring legislation to the House floor that would authorize the House of Representatives to file suit in an effort to compel President Obama to follow his oath of office and faithfully execute the laws of our country.”

Obama responded to Boehner’s plan last week with typical contempt: “So sue me.” Boehner replied, “What’s disappointing is the President’s flippant dismissal of the Constitution we are both sworn to defend. It is utterly beneath the dignity of the office.”

Boehner is right on the money with his rhetoric. Obama has indeed flippantly dismissed the Constitution as a mere obstruction to his plan, all while paying lip service to that same Constitution.

But Boehner’s plan is a weak and politically calculated move. His aim is to draw attention to Obama’s lawless behavior without having to truly do anything about it. As former federal prosecutor Andrew McCarthy puts it, “Boehner and the Congress hold the tools that could end, or at least dramatically reduce, the administration’s onslaught. Instead, the speaker prefers to bring a whistle to a gunfight.”

The courts are impotent to adequately address the problem at hand – namely Obama’s blatant refusal to faithfully execute Rule of Law. Judges cannot enforce any ruling against Obama, and that’s if the House approves a suit and then if a judge disregards precedents regarding standing to sue and rules in the House’s favor sometime before the end of Obama’s term in 2017.

Instead, what the House should do immediately is use the power granted them by the Constitution. McCarthy writes, “It can repeal or amend laws, refuse to fund an executive agency’s illegal enforcement action, or impeach executive officials – from the lowly subordinates who carry out lawless actions up to the president himself. There is no legal impediment stopping Congress from taking these measures; there is a political impediment stopping Boehner.”

Perhaps Boehner feels the case for “other high Crimes and Misdemeanors” isn’t sufficient for impeachment – particularly with a Democrat-controlled Senate to block the effort. Or perhaps he recalls the fiasco of Bill Clinton’s impeachment, in which the Leftmedia circled the wagons and made it about Monica Lewinsky instead of the real charges brought against Clinton – none of which had anything to do with cigars or the meaning of “is.” Republicans ended up losing seats that November.

Indeed, there is an almost total lack of public support for impeaching Obama, and it would almost surely be self-defeating. So what to do?

James Madison wrote of checks and balances in Federalist No. 51, “[W]hat is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Madison expounded on these “auxiliary precautions” in Federalist No. 58, “The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government.” He continued, “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” In other words, rein in the rogue executive branch through the power of the purse.

In short, Boehner has plenty of options better than running to the courts – if only he had the backbone to take advantage of them.

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