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Suing President Obama Is The GOP's Dumbest Idea Yet

Nathaniel Haas |
June 26, 2014 | 5:50 p.m. PDT


"Why can't we be friends?" (Pete Souza, Wikimedia Commons)
"Why can't we be friends?" (Pete Souza, Wikimedia Commons)

They have voted over 40 times to repeal a law passed by Congress and upheld by the Supreme Court. They have shut down the government. Now, House Republicans are going to sue President Obama. 

On Wednesday, Speaker of the House John Boehner (R-OH) confirmed to reporters that he intends to file a lawsuit against President Obama for failing to “faithfully execute the laws” pursuant to Article II of the Constitution. Boehner can do so through the Bipartisan Legal Advisory Group (BLAG), a five person legal panel made up of the top three House Republicans and top two House Democrats, which is expected to vote on party lines (3-2) to order the U.S. House Office General Counsel to initiate legal proceedings against Obama in July.

SEE ALSO: John Boehner Plans To Sue Obama

It is unclear if Boehner is merely blowing political smoke, or if he actually intends to go through with the lawsuit. Talk swirled of a lawsuit after the State of the Union at the beginning of this year, but nothing came of it. Should they decide to do so now, the midterm election-year stunt would be the stupidest political mind trick Republicans under Boehner have ever done, for a few reasons.   

First, the entire process is taxpayer funded. In 2011, when the White House announced it would no longer defend the Defense of Marriage Act (which restricted marriage benefits to heterosexual couples), House Republicans under Boehner ordered the BLAG to defend DOMA in the White House’s place. Paul Clements, the BLAG-appointed lawyer, did so in front of the Supreme Court when it was struck down in Windsor v. United States. The entire legal effort cost almost $3 million.   

This waste of taxpayer dollars is especially egregious for a party that has built itself upon fiscal responsibility above all else. Spending taxpayer dollars to air their political grievances with the president is the epitome of hypocrisy, and selectively upholding the mantra of “fiscal responsibility” is neither fiscal, nor responsible. Deciding whether Obama has failed to execute the laws is something that Americans should be able to do with their votes - not with their wallets.  

Second, the merits of the lawsuit have as many cracks as the soon to be renovated Capitol rotunda (around 1,300, for anyone who is counting). Though he offered no specifics, Boehner indicated the lawsuit is a response to what the GOP perceives as excessive executive action on behalf of the president, including executive orders to raise the minimum wage paid by federal contractors and to allow students to refinance their loans. 

“What we've seen clearly over the past 5 years is an effort to erode the power of the legislative branch," he told CNN. 

The problem with statements like this is that they continue the longstanding tradition of the GOP’s collective amnesia of history, and namely the administration of President George W. Bush. The federal register maintains a comprehensive list of every executive order in history. An examination of that database by a political scientist in February revealed that of the last 14 U.S. Presidents, Obama has issued the second-fewest executive orders since his election in 2008, a total that is also lower than each of the five most recent Republican presidents. Of that same 14, Obama has also signed the lowest number of executive orders per year. 

As the folks at the Washington Post Fact Checker would say to Boehner, "four Pinocchio’s." 

Notwithstanding, Boehner’s remarks also continue a longstanding tradition in the GOP of referencing the Constitution while willfully ignoring what the Constitution actually says or how it has been interpreted. The executive order power can be checked by the Supreme Court, which first exercised the power to overturn President Truman’s seizure of the steel mills in Youngstown Sheet & Tube Co. v. Sawyer. Congress can also check this power by refusing to appropriate funds to enforce the order, pursuant to Article I, Section 9 of the Constitution. Boehner and company should know this technique especially well—they’ve used it to block enforcement of Obama’s executive order to close Guantanamo Bay prison for the last five years. 

It is truly mind boggling that Republicans systematically ignore all of these checks on presidential power, while at the same time using them selectively and insisting on a lawsuit that isn’t even targeted at a specific executive action.  

“We’re going to watch very closely, because there’s a Constitution that we all take an oath to, including him, and following the Constitution is the basis for House Republicans,” Boehner crooned after the State of the Union in January. 

If Boehner wants to know who is “eroding the power of the legislature,” he should look no further than his own party. 

First, there’s the filibuster, a tactic used by Republicans in the Senate to grind that body’s productivity to a screeching halt. 

SEE ALSO: It’s Time to End the Filibuster, Once and For All.

Comprehensive immigration reform, which is supported by a clear majority in the Senate and House, has not been brought to a vote on the House floor because it doesn’t have the support of a majority of Republicans. Boehner has invoked the “Hastert rule,” which isn’t really a rule at all, to refuse to bring the bill to the floor unless it has the support of a majority of Republicans (even though it would pass the House with bipartisan support as it stands).

That’s the great irony: In a sick game of chicken and egg (Which came first, the executive orders or the gridlock?), obstructionism in the House and the Senate has left Obama and the Democrats with no other option than executive action to accomplish a swath of policy goals.

Returning to the executive order data offers some insight. Obama is averaging 10 fewer executive orders per year than Reagan, a GOP poster boy, but a President who famously united with then-Speaker of the House Tip O’Neil (a Democrat) to pass a myriad of legislation. There doesn’t seem to be a correlation between gridlock in Congress and the use of executive orders. Rather, it’s clear that Republicans are using the gridlock in Congress that they have created to shine a spotlight on executive orders that aren’t out of the ordinary by historical comparison. 

SEE ALSO: Chris Matthews Offers Lesson in Respectful Politics 

The only good that can come of this lawsuit is an epic reenactment of the famous scene from the 1992 legal drama “A Few Good Men.” For all of their wild accusations, the House GOP needs someone in the style of Colonel Jessup to look them in the face and recite the following line with all the dignity of a Ted Cruz filibuster:

“You can’t handle the truth!” 

Nathaniel Haas is a junior majoring in political science and economics. He currently lives in Washington, D.C. and works as an intern at the United States Senate. His column, "Over The Hill," runs Wednesdays. Reach him here; follow him here



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