Boehner lawsuit likely to miss mark with focus on Obama's domestic actions

Last week, Speaker John Boehner (R-Ohio) announced plans for Congress to sue President Obama over unspecified failures to "faithfully execute the laws of our country." Boehner suggested that the president is acting like "a monarch or a king" by "claiming for [himself] the ability to make law."

Boehner's vague charges do not specify exactly how Obama has overstepped his bounds — the closest Boehner came is when he referred to "matters ranging from health care and energy to foreign policy and education." Presumably, we will learn more when the lawsuit is filed. However, it is possible to make some assumptions about the overreach Boehner has in mind — and, in the domestic context, it is hard to see how these charges will have any success.

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The first problem for Boehner is that courts are likely to conclude that the House of Representatives does not have legal standing to challenge Obama's actions. Standing under the Constitution means showing an injury that can be redressed by the court. It is possible that Congress could meet this requirement if Obama was refusing to follow the law, entirely abdicating statutory responsibilities. But that is not the case here (as discussed below) — and even if it were, there is reason to believe that the courts would be inclined to leave the matter to the president and Congress to sort out on their own. Supreme Court Justice Antonin Scalia noted in a 2013 dissent that, even when a president chooses not to enforce a law, "the matter would [be] left, as so many matters ought to be left, to a tug of war between the President and the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written." Scalia added that "[i]f majorities in both Houses of Congress care enough about [presidential refusal to enforce a law], they have available innumerable ways to compel executive action without a lawsuit — from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says 'enforce the Act' quite like ' ... or you will have money for little else.') But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution's entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court's decree, just as he did not faithfully implement Congress's statute, what then? Only Congress can bring him to heel by ... what do you think? Yes: a direct confrontation with the President."

So, even if Obama was refusing to enforce the law, as Boehner suggests, successful litigation of the matter could prove difficult. But these "best-case scenario" facts do not exist for the Speaker. In the domestic areas Boehner has alluded to — healthcare, energy, and education — Obama has a persuasive argument to make that he has simply exercised discretion in setting enforcement priorities. The president's constitutional duty to "take care that the laws be faithfully executed" does not mean that the president is Congress's servant, obligated simply to carry out Congress's instructions without exercising discretion. Most laws don't work this way — in fact, many laws expressly authorize the president or executive branch agencies to exercise discretion and set priorities. Longstanding judicial precedent recognizes that the presidential duty to faithfully execute the laws includes the authority to set priorities as to prosecution and enforcement.

That does not mean that Congress is helpless if it disagrees with Obama's priorities. As Scalia points out, Congress has plenty of tools available — including the power of the purse, the ability to hold up nominations, the ability to rewrite the law to focus on priorities it desires, and even the power to impeach. It has used some of these tools already — recall last year's government shutdown. But Boehner and congressional Republicans will, of course, have to consider the politics — would it hurt them to be seen as obstructionists? Obama is already trying to make that case.

What's odd about Boehner's criticism of presidential overreach is that he (and other Republicans) seem to be focusing on domestic matters. There is actually a much better case to be made about presidential overreaching on national security and foreign affairs — in these areas, Obama's unilateral actions have gone too far. Oddly, though, Boehner and other Republicans are eager to defer to Obama on questions like whether to use military force in Iraq. That's a mistake. Boehner is right that Congress plays an important role in checking executive power when the president goes too far. But the real danger when it comes to presidential overreach right now is in the national security context, not domestic affairs. If Congress doesn't act on the national security front, it will be abdicating its own constitutional responsibilities.

Edelson is an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

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