In Dramatic Pointless Gesture, Boehner to Sue Obama

Official White House Photo by Pete Souza

President Barack Obama and Vice President Joe Biden meet with the bipartisan, bicameral leadership of Congress to discuss the fiscal cliff and a balanced approach to the debt limit and deficit reduction, in the Roosevelt Room of the White House, Nov. 16, 2012. Participants included: House Speaker John Boehner at left, Senate Majority Leader Harry Reid, Senate Minority Leader Mitch McConnell, House Minority Leader Nancy Pelosi, Chief of Staff Jack Lew, Treasury Secretary Timothy F. Geithner, and National Economic Council Director Gene Sperling.

Pretty much since the moment Barack Obama finished speaking the oath of office in January 2009, Republicans have been charging that he was abusing his power, exceeding his authority and acting like a tyrant. You might remember that for a time in those early days, conservatives (led by Glenn Beck) were obsessed with the idea that Obama had appointed a group of "czars" who were wielding unaccountable power to implement all sorts of nefarious schemes. They were unable to say how a "czar" differed from "a person who works in the White House," and that particular iteration of their outrage faded, but the underlying suspicion only grew. In the years since, the list of alleged usurpations of authority has grown daily, the charge that Obama is "lawless" becoming a constant.

At its root is the idea that Barack Obama's presidency is inherently illegitimate, and whatever he does in that office must be illegal, or nearly so. This often translates into complaints about process, so that even when they lose, Republicans charge that the game was rigged. For instance, conservatives have said thousands of times that the Affordable Care Act, despite being probably the most exhaustively debated piece of legislation in decades, was "rammed through" Congress before anybody realized what was happening. Actions that all presidents undertake, like making recess appointments, signing executive orders, or simply having agencies write regulations, become yet more evidence of Obama's horrific authoritarian rule.

It's safe to say that many if not most Republicans would be eager to impeach Obama were such a move not a guaranteed political disaster for them. So John Boehner has decided to pursue a kind of impeachment-lite, announcing that the House of Representatives will be suing the president for abusing his power. "The Constitution makes it clear that the president's job is to faithfully execute the law," he said. "In my view, the president has not faithfully executed the law." It's impossible to tell at this point whether the suit has any merit, because Boehner didn't actually cite any specific transgressions the suit will allege.

But my guess is that the suit will throw in every process complaint the Republicans have had over the last five years, because it's mostly about Boehner's right flank, both in Congress and in the Republican electorate. Even if the suit gets thrown out of court, Boehner will still be able to say to the eternally angry members to his right, "Hey, I'm the guy who sued Obama! I hate him as much as you do!"

It's irresistible to charge Republicans with hypocrisy, especially given the fact that they were unconcerned when the Bush administration pushed so vigorously at the limits of presidential power. Bush and his staff regularly ignored laws they preferred not to follow, often with the thinnest of justifications, whether it was claiming executive privilege to ignore congressional subpoenas or issuing 1,200 signing statements declaring the president's intention to disregard certain parts of duly passed laws. (They pushed the limits of vice presidential power, too—Dick Cheney famously argued that since the vice president is also president of the Senate, he was a member of both the executive and legislative branches, yet actually a member of neither and thus not subject to either's legal constraints. Seriously, he actually believed that.)

Needless to say, at the time Republicans were perfectly fine with these moves, because when the Bush administration was doing these things, it was in support of policies they favored. And that's how it goes: Process complaints are almost always a cover for substantive disagreement. A backroom deal made to pass a piece of legislation you agree with is just how the sausage gets made; a deal made for a piece of legislation you disagree with is evidence of deep corruption. A filibuster of a bill you oppose is a principled use of established procedures; a filibuster of a bill you favor is cynical obstructionism. And it's a little rich to hear congressional Republicans wail that Obama has subverted their will, when their will is that this president should be able to do absolutely nothing.

To be clear, I'm not saying that it's impossible that there could be any merit to whatever claims Boehner and his colleagues will make. There may have been situations in which Obama pushed presidential prerogatives beyond what the law and the Constitution allow, which the courts will decide. But this question comes up with every president, both because they all want to pursue their goals and try to find every means at their disposal to do so, and because the limits of that power are somewhat vague and complex. As it happens, in numeric terms, Obama has been far more restrained than his predecessor; he has issued fewer executive orders than other recent presidents, and has also used signing statements only occasionally (although recently he cited one of his signing statements as justification for failing to notify Congress 30 days before the release of Taliban prisoners in exchange for Bowe Bergdahl).

The numbers aren't really the point, though; the question is whether Obama actually ever exceeded his authority. This lawsuit may help us understand whether that occurred, and the result might set a useful precedent to guide future presidents. But I doubt it. More likely, it'll be an intensely partisan document whose purpose is to shake a fist at the president Republicans so despise, and it'll get tossed out of court and thrown in the dustbin where it belongs, one more futile, angry gesture from an opposition that has lost the ability to offer anything else.

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