House Republicans have begun to float the idea of a lawsuit against President Obama to try to force the President to actually follow the laws Congress passes.
“The Constitution makes it clear that a president’s job is to faithfully execute the laws. In my view, the president has not faithfully executed the laws,” the Speaker said on Wednesday. “When there are conflicts like this between the legislative branch and the administrative branch, it’s … our responsibility to stand up for this institution.”
Boehner also issued a memo to House Republicans explaining the reasons and legal theory behind the planned lawsuit. (There’s a link to the memo at the end of this article.)
But there was a strange omission in Boehner’s memo: nowhere is Obama’s lawless failure to enforce our immigration or border security laws mentioned, which is arguably the most egregious example of Obama’s lawlessness.
We think a general lawsuit against Obama for his lawless behavior has little chance of success in large measure because the Constitution sets forth another remedy against a President and subordinate officials who fail to faithfully execute their constitutional responsibilities: impeachment.
But Boehner and the House Republicans have no stomach for using the tools the Constitution provides, such as refusing to fund a program with which they disagree or impeaching lawless executive branch officials.
As our friend Andrew C. McCarthy, author of Faithless Execution, observed in a recent column for National Review Online:
Speaker Boehner correctly points out that all Americans, regardless of partisan or ideological inclination, have an interest in stopping executive lawlessness because the imperial precedents President Obama is setting will be available for exploitation by every future president. Yet, Boehner is heedless of the precedent he proposes to set: Instead of Obama’s executive monarchy, we’d now be subjects of a judicial oligarchy—all future presidents, no matter how lawful their actions, would be subject to vexatious congressional lawsuits and court directives from the judiciary Obama has been stocking with hundreds of like-minded Leftists for the last six years. Putting aside the fact that this would put politically unaccountable judges in charge of all policy matters in our body politic, does anyone suppose that Democrats just might use Boehner’s lawsuit gambit as the basis for harassing a future Republican president that they lacked the votes to impeach or slash funding from?
McCarthy further observers that “the end of the Boehner memo is priceless.” It contends:
Under our system of government, the Judicial Branch has the power to resolve disputes between the Executive and Legislative Branches. When there is a failure on the part of the president to faithfully execute the law, the House has the authority to challenge this failure in the Judicial Branch by filing suit in Federal Court in situations in which:
There is no one else who can challenge the president’s failure, and harm is being done to the general welfare and trust in faithful execution of our laws;
There is no legislative remedy; and,
There is explicit House authorization for the lawsuit, through a vote authorizing the litigation against the president’s failure.
According to McCarthy’s way of thinking everything asserted there is either untrue or abject nonsense.
We agree with Andrew C. McCarthy: in the end what Boehner proposes is not a strategy to force Obama to enforce the laws Congress passes or to follow the Constitution. It is a feckless political ploy that picks and chooses a few issues to make it look like Boehner and House Republicans are doing something about Obama’s lawlessness, when the real remedy is to impeach Obama, Holder, DHS Secretary Jeh Johnson or any of the other federal officials who have been complicit in the execution of Obama’s policy of lawlessly refusing to faithfully execute the laws Congress passes.