America, as the legal theorist Mick Jagger once observed, is a litigious society. Now, to prove him right yet again, comes House Speaker John Boehner, Republican of Ohio.
Boehner announced last week that he would introduce legislation allowing Congress to sue the president to compel him to “follow the oath of his office and faithfully execute the laws of our country.” The proposed legislation, which stands no chance of passage in the Senate and is constitutionally dubious, is a public relations ploy designed to put President Barack Obama on the defensive and buttress the Republican message that he has acted “unilaterally.”
It's true that Obama has ignored statutory requirements that he finds inconvenient. His administration has stopped enforcing federal marijuana laws in some states, for example, and made exemptions from immigration laws. Boehner has a strong argument that those moves run afoul of laws adopted by Congress.
The proper venue for his argument, however, is not the Supreme Court. The court is perfectly willing and able to referee disputes over the limits of presidential authority, of course. It started a couple of centuries ago and waded into this debate just last week, in cases curtailing Obama's authority to make presidential appointments during a congressional recess and limiting the ways the Environmental Protection Agency can regulate carbon dioxide. But the court considers only “cases or controversies” in which a party can demonstrate actual injury; it doesn’t simply issue advisory opinions to the other two branches about whether one or the other's actions are constitutional.
If Congress is unhappy with the way a president has enforced (or not enforced) a law, it is hardly powerless. It can convene hearings and compel witnesses to testify. If that pressure fails to result in change, it can pass additional legislation that leaves the president less room to maneuver. Finally, it can defund federal agencies and bring articles of impeachment against the president or other executive branch officials.
Boehner proposes to give Congress legal standing to sue anytime it passes a law and doesn’t like the way a president implements it. That, if it were to pass constitutional muster, would inevitably result in a torrent of politically driven lawsuits, and it would make it even more difficult for the executive and legislative branches to work together. Hard as it may be to believe, the relationship between Capitol Hill and the White House could actually get worse.
Boehner’s frustration is understandable. But he is unwise to look to the courts to resolve it -- and, as that famous legal theorist might add, he can't get no satisfaction there.
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