Saturday, July 26, 2014

Boehner's Lawsuit Is The Least Bad Of All The Options

On Thursday, the House Rules Committee approved a resolution authorizing filing a lawsuit against Obama over his use of executive power. The vote was along partisan lines to the surprise of no one. Democrats labeled the lawsuit a "political stunt" from the moment John Boehner announced it and there is no indication that they will change their minds on the subject. The House is expected to vote on the measure next week and, again, the vote will probably be along partisan lines with the exception of a few endangered incumbents.

It is really unfortunate that Boehner decided to pursue this course of action in the middle of a heated campaign season. It is also unfortunate that he decided to focus on Obamacare instead of other areas where the president may have overstepped his constitutional authority, thus, feeding into the "political stunt" narrative. I say unfortunate because the lawsuit raises important constitutional questions. And if we could set aside our partisan differences for a moment and analyze the various options, I believe most Americans would conclude that Boehner's approach is the best remedy for addressing whether the executive branch has exceeded its constitutional authority.

Legal scholars on both sides of the political spectrum have dismissed the lawsuit as a futile effort that won't be considered by the courts mainly for two reasons. First, the lawsuit involves a political question and as such it is outside the scope of the judiciary. Second, the House lacks legal standing. In the past, the courts have ruled that members of Congress cannot sue the executive because they cannot show personal harm. Some experts have suggested that Congress could claim institutional injury provided both chambers agree to join the effort. The House alone won’t succeed in establishing standing.

However, pronouncements by legal scholars – no matter how revered – are no reason to drop the lawsuit. If memory serves me right, several renowned constitutional experts confidently predicted the Supreme Court would never consider Bush v. Gore or, much less, would rule in Bush’s favor. Courts are unpredictable and whether or not a case will be considered can only be known by pursing litigation.

With respect to whether this lawsuit involves a political question, the judiciary is not being asked to rule on the merits of the policy. The courts are not being asked to approve or disapprove of the changes the Obama administration has made. As professors Jonathan Turley and Elizabeth Price Foley testified before the House Rules Committee, the issue before the courts is which branch has the power to change particular provisions of the law. Whether the president’s actions fall within the purview of the executive or the legislative branch is not a political question. It is a question about constitutional powers; more specifically, separation of powers.

On the matter of the House lacking standing because it only represents one chamber of Congress, does this mean that as long as control of the House and Senate is split between the two political parties the president has free range over how or if to implement laws? When Madison conceived our system of government, he assumed that each branch would jealously protect its powers. Never did he imagine that tribal political affiliation would trump institutional affiliation.

Regarding the issue of having to establish personal harm, it is absolutely correct that such a bar keeps the courts from being flooded with litigation; and, if Boehner’s lawsuit is allowed, there is a real danger that Congress will run to the courts every time there is a disagreement with the president. On the other hand, if Congress cannot show personal harm and there is no private party that can show injury, does this mean that the executive can proceed unchecked? In other words, does the Constitution permit a benevolent autocrat? I would argue that the latter is a much less desirable option for a country that believes it is the home of the free.

Opponents of the lawsuit point out that Congress already has plenty of constitutional remedies in its arsenal to curtail executive overreach without involving the judiciary. For example, Congress has the power to pass legislation insisting that the president abide by the letter of the law. Since the Senate is controlled by the Democrats, this approach has no chance of succeeding. But let’s say that by some miracle of bipartisanship Congress approves said legislation and it lands on the president’s desk. All Obama has to do is veto the bill and immediately the bar is raised from a majority in Congress to pass the bill to a supermajority needed to override the veto.

Many have argued that Congress could pursue impeachment. Some believe that impeachment is the only appropriate constitutional remedy. Polls show that such a move is very popular among Republicans. But is impeachment a viable or even a desirable alternative to Boehner’s lawsuit?

Given the current political makeup of Congress, there are not enough votes to remove the president from office. Moreover, no high crimes or misdemeanors are being alleged. There is a genuine disagreement between two branches of government over whether or not the ACA gives the executive the power to change particular provisions. Impeachment is not only unlikely; it is a disproportionate response.

Even if the president is removed, his successor belongs to the same political party and likely will continue the same approaches. Does anyone believe that Biden would be any different than Obama? Does anyone expect Biden to agree that Obama was wrong in postponing the employer mandate? Pursuing impeachment will only ensure that the country is paralyzed for months. It would make the cable news and political pundits very happy; but it would not remedy the problem.

Another power Congress could use is denying the executive funding. Since Republicans control the House, they can exercise the power of the purse without the cooperation of the Democrats. Republicans could target specific programs for defunding as a way to rein in the executive branch. However, as a practical matter, this approach is not as effective as it may appear. As professor Turley pointed out during the hearing:
“There has been a major change in the power of the purse because of modern appropriations. There is so much discretionary funds sloshing around you [Congress] simply can’t use it the way it could have been used during the early republic.”
To emphasize his point, professor Turley recounted how the war in Libya was funded solely with discretionary funds. He also mentioned an incident when Congress refused to fund a position in the State Department. The Obama administration circumvented Congress’ wishes by simply renaming the position. Of course, there is always the option of cutting off all discretionary funds. The Ted Cruz strategy. Been there. Done that. No further discussion required.

Whether critics of Boehner’s approach want to admit it or not, the constitutional remedies that everyone seems to agree Congress has are simply inadequate in modern times. They are either unfeasible, given the partisan nature of our politics, or would paralyze our government. A lawsuit, on the other hand, would not be disruptive. Government functions would carry on while courts would be considering the case. It would have no negative impact on local economies as it happened during the government shutdown.

Of course, Congress could decide to take no action. Let the president essentially do whatever he deems appropriate until such time some private party can claim injury. In the meantime, his political opponents will continue to accuse him of lawlessness; call him king, emperor and refer to his administration as a “regime”. Without an independent arbiter to assess the validity of the claims, the rhetoric will only escalate and have a corrosive effect on our democracy. It will alienate more individuals from the political system. It will engender a sense of powerlessness resulting in lower voter participation and increased polarization.

Moreover, if no action is taken the executive will continue to expand and claim more and more powers. Yesterday, a White House aide announced that Obama will pursue further executive action in the area of immigration even if it means risking impeachment. Of course, the president knows that  there are not enough votes in Congress to remove him from office. It is all political posturing on his part. If the courts allow the House to sue the president, we may be spared brinkmanship from both sides; and that would be welcomed, I believe, by most Americans.

Perhaps Boehner’s motivations are completely political. Or, as many pundits have argued, it just a tactic on his part to deflect those in his party who want to impeach Obama. Nevertheless, after considering all the other options, Boehner’s lawsuit is the least disruptive or damaging of all the alternatives. It is the most appropriate measure to address important legal questions and preserve our constitutional system.