Why Congress Should Sue Obama over His Executive Orders—and Why They Won’t

“All his acts, therefore, properly executive, must presuppose the existence of the laws to be executed. . . . . To say then that the power of making treaties, which are confessedly laws, belongs naturally to the department which is to execute laws, is to say, that the executive department naturally includes a legislative power. In theory this is an absurdity–in practice a tyranny.”—James Madison on George Washington

 

The first president to get in trouble over an executive action was George Washington. In April 1793, when Washington learned that Revolutionary France had declared war on Great Britain and other European powers, Washington issued a proclamation of neutrality that forbade Americans from giving aid to any belligerent in the European War.

This proclamation outraged the Republicans, who felt a kinship with the French revolutionaries and wanted to let French ships use American ports to harass British trading vessels in the Caribbean. Writing under the pseudonym Helvidius, James Madison accused the father of our country of ignoring the Constitution, of usurping Congress, and of being, in practice, a tyrant.

But Washington won the political battle, and, despite this rocky start, every president but one (the hapless William Henry Harrison who died a month after taking office) has issued executive orders and taken other executive actions beyond the enumerated constitutional power of a president.

Some of these orders — Lincoln’s suspension of habeas corpus and Roosevelt’s internment order — have contracted the rights of Americans. Others, such as Truman’s order to integrate the armed forces and Eisenhower’s desegregation of public schools, expanded them. Many of them have been controversial.

To date, Barack Obama has issued 180 executive orders — fewer than any two-term president since Martin Van Buren — and a series of other executive proclamations that have outraged conservatives. Among the most controversial of these are orders raising the minimum wage for federal contractors, a statement stopping the deportation of the children of undocumented immigrants, and a forthcoming executive order to end discrimination against LGBT workers.

Like Washington, Lincoln, Roosevelt, and Reagan, Obama has been roundly criticized as a lawless tyrant for using executive actions to circumvent the legislative branch. The usual suspects are banging the drum for impeachment.

But on Tuesday, quite unexpectedly, John Boehner announced that the House of Representatives is considering challenging some of Obama’s executive actions in federal court. Though this might not sound as serious as impeaching the president, it is actually far more consequential for the simple reason that it could actually happen.

And I really hope it does. The federal court system is the right place for the legislative branch to challenge the power of the executive. A series of well-constructed lawsuits could go a long way toward clarifying the proper use of executive orders.

A lawsuit would allow the whole separation of powers thing to work the way it is supposed to work, with the courts mediating between the other two branches. It would be a democratic, civically responsible way to address an important issue.

And, I predict, it is never going to happen.

Though it would be good for democracy and good for the country to give the courts an opportunity to draw some boundaries, there is just no way that John Boehner and the Republican House leadership will sacrifice a guaranteed political talking point to wage an uncertain legal battle.

In the first place, they could very well lose. The line between legislative and executive action is not as clear as many people think it is. And this is by design.

The whole idea of checks and balances requires that some legislative functions be vested with the president (i.e. vetoing legislation), just as some executive functions (i.e. declaring war) are vested in the legislature. It is by no means certain that the courts will find things like paying federal contractors and preventing discrimination to be beyond the constitutional powers of the president.

But even if the House wins the lawsuit, they still lose the issue.

If Boehner, et. al sue Obama in federal court and win, forcing the administration to withdraw some of its executive actions, the process will showcase the Constitution working as it is supposed to work, with the legislative and executive branches disagreeing about the correct interpretation of the Constitution and the Judicial branch stepping in to mediate the dispute. Americans will get a civics lesson and life will go on.

That is not nearly as much fun as standing on the table, calling the president a tyrant, and threatening in vain to impeach him for some separation-of-powers violation that you are not even willing to take to court.