The Magazine

Fight, Don’t Sue

Jul 14, 2014, Vol. 19, No. 41 • By TERRY EASTLAND
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On a wide range of matters, including health care, energy, immigration, foreign policy, and education, says House speaker John Boehner, President Obama has ignored some statutes completely, selectively enforced others, and at times created laws of his own, thus failing to “take care that the laws be faithfully executed,” as Article II of the Constitution requires of a president. Indeed, by his “aggressive unilateralism,” as Boehner puts it, Obama has shifted the “balance of power” in favor of the presidency at the expense of Congress, the body that under the Constitution is responsible for making the laws.

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This shift, occurring “decisively and dangerously,” says Boehner, violates a basic structural principle of the Constitution—the separation of powers. Now Boehner has announced what he plans to do about it: in a word, sue. That is, have his chamber sue the president for failing to take care that the laws are faithfully executed.

Boehner is right to complain about Obama’s serial executive power abuses. But litigating the take-care clause is an idea that the speaker should reconsider.

From the beginning of the republic to the present, only people whose concrete, personal interests have been damaged by an alleged failure to faithfully execute the laws have been accorded “standing” to have their cases heard in a federal courtroom. Boehner wants standing conferred on the House if its powers are impaired by some alleged failure on the part of a president to faithfully execute the laws. Toward that end, Boehner aims to limit the situations in which the House would sue to those in which no private party is challenging the alleged failure to execute the laws; a majority of the House votes to authorize the suit, thus demonstrating the “institutional” injury; no legislative remedy is available; and the only recourse is the courts.

Boehner has not specified which of the president’s executive actions the House will challenge first in its effort to sell the courts on institutional standing. But if Boehner and his House colleagues succeed in persuading the judiciary to open this door to judicial review, even by a crack, it is likely over time to be opened further, even to the point that the president is granted standing to bring separation-of-powers lawsuits against Congress.

Last year Justice Scalia had occasion to address that prospect. “If Congress can sue the Executive for the erroneous application of the law that ‘injures’ its power to legislate,” he said, “surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that ‘injures’ the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations.” Scalia added, “The opportunities for dragging the courts into disputes hitherto left for political resolution are endless.”

Government by judiciary is not exactly what the Framers had in mind. And it would be ironic indeed if conservatives, who once routinely defended standing as
a key doctrine of the separation of powers, now initiated a process that wound up significantly enlarging the role of the judiciary in the structural aspects of government.

With the current president, it is important to ask what litigating the take-care clause would actually accomplish. Assume that a court finds President Obama in violation of his take-care obligation. Then what? As the legal writer (and former federal prosecutor) Andrew McCarthy has pointed out, “law enforcement is a plenary executive power, and thus any court judgment against Obama would have to be enforced by .  .  . Obama.” Of course, there is no reason to think Obama would do that. And so nothing will have changed. Obama knows this perfectly well. The other day, he offered his defiant response to Boehner: “Sue me.”

The better course for the House would be to work against Obama’s unilateralism with tools already in hand, which are necessarily political ones, and which by the design of the Framers actually force confrontation between the elective branches: the result of “ambition counteracting ambition,” as Madison put it in Federalist 51. In particular, the House could exercise its legislative, oversight, and appropriations powers more strategically. Regarding the latter, the House could vote to cut or quit funding parts of the government where faithful execution has been lacking—the IRS, which enforces key elements of the health care law, being at the top of that list.

Meanwhile, there are elections. There are always elections. They are especially important today because the country remains sharply divided politically. That basic fact explains our divided government in Washington. And it underscores the need for developing and articulating a conservative agenda that can win both the presidency and Congress in 2016. That ought to be a more urgent priority for House Republicans than the dubious project of taking Obama to court.

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