John Boehner has a lot on his plate these days. He is recovering from losing his second-in-command and a major shakeup in the leadership ranks among his caucus, yet he’s decided his next important legislative step is to sue President Obama for misusing executive powers. The speaker has gone so far as saying President Obama is using “king-like authority.” Whether or not you believe the President has over-reached in his executive power will be based largely on whether or not you agree with President Obama’s policies. In his State of the Union address earlier this year, Mr. Obama said he would use his pen and phone to get things done. So far he’s done so on issues as wide ranging as rights for same sex couples, immigration, federal student loans, and Environmental Protection Agency regulations.
The president’s policy moves have come through a myriad of administration actions. Some were executive orders, others were Presidential Memorandum and there were also a number of directives. The directives are where the president instructs the head of a department agency to develop rules for that agency to abide by, as was the case with regards to a recent Department of Justice decision regarding non-violent drug offenders, as well as the EPA’s carbon pollution emission guidelines. In each case, the President tasked the head of the respective agencies (Attorney General Eric Holder in the DOJ and Administrator Gina McCarthy in the EPA) with developing rules that ultimately will govern the country. Politics aside as to whether or not you support these rules, Speaker Boehner is calling into question the constitutionality of this power.
Critics of Speaker Boehner suggest this is a waste of the taxpayer’s time and a distraction. House Minority leader Nancy Pelosi called it “subterfuge” and White House Press Secretary Josh Earnest decried the act as “a step that I think most Americans wouldn’t support.” The practicality of the suit does seem far-fetched. The House would have to agree to file the suit against the President, then the case would move to the House General Counsel and the Bi-Partisan Legal Advisory Group. The latter made up of party leadership from the Democratic and Republican sides of the aisle. If it passed all those steps it would then face an uphill battle in court because the plaintiff would have to show the accused caused personal injury. Such a burden of proof is difficult enough that many courts prefer to stay away from such cases involving separation of power. The length of time the process could take would also outlast the two and a half years President Obama has left in his term.
Mr. Boehner is seemingly waging a war for a noble cause. He’s made it clear he believes he’s protecting the institution of the legislative branch by taking this action. What may make the speaker’s case more challenging is President Obama has issued the fewest amount of executive orders per day since Grover Cleveland in the 1800’s. Another problem facing the suit is the partisan nature that comes with such a decision. When commenting on the suit, Earnest also said “…Republicans have shifted their opposition into a higher gear. Frankly, it was a gear that I didn’t even know existed.” A fear of a slippery-slope argument will be something else that should cast doubt and apprehension among House Republicans. If the GOP were to win the White House in 2016, a Republican president would not want this precedent to impede their ability to use executive action.