House Speaker John Boehner says Republicans will sue to force President Barack Obama to enforce the law. Photographer: Andrew Harrer/Bloomberg
House Speaker John Boehner says Republicans will sue to force President Barack Obama to enforce the law. Photographer: Andrew Harrer/Bloomberg

News item: Speaker John Boehner is threatening to sue Barack Obama because House Republicans believe the president isn’t executing the law properly.

Let’s get the basics right. No one looking at the evidence believes Obama is using his executive powers in an unusual way. At the same time, lots of people believe that presidents generally overstep their constitutional boundaries, and there are legitimate arguments that Obama has done so in various close-call cases.

(We should underline that first point. Rhetoric aside, No one thinks Obama is acting like a dictator. One example: no one is suggesting that the president's response to last week's Supreme Court ruling in the Canning case will be to just continue to make recess appointments with a Jacksonian challenge to the court’s ability to restrain him. Meanwhile, by every indicator we have for measuring unusual unilateral action -- executive orders, signing statements, pardons and even recess appointments – Obama appears to be on the restrained side. That doesn’t mean the administration can’t be wrong on particular actions, but the larger case that Obama is particularly aggressive is a joke because it ignores 43 other presidencies).

Back to the main question: What should House Republicans do if they believe that the president has acted beyond his authority in particular cases?

Kevin Drum says the House lawsuit is a positive alternative to, say, impeaching the president: “Let's find out what he's really serious about, and then see what the Supreme Court thinks about it. That's how this stuff should be resolved.”

But John Patty argues persuasively that if the injury by the White House is substantial, then impeachment is the proper remedy. If it isn’t substantial, normal lawsuits by normally injured parties should be sufficient, and would retain the proper constitutional balance.

The idea that impeachment is the first and only remedy to presidential misbehavior strikes me as a mistake. The problem for the House is that presidents (and executive-branch departments and agencies, which may or may not do what the president or Congress wants) have enormous scope to interpret laws, mainly because the laws themselves usually are filled with ambiguity and vague language. This isn't (typically) because the laws are poorly written, but because that’s often what it takes to get a bill through Congress.

So there's an easy answer: The best way for Congress to override the executive is to make its own interpretation explicit by passing a new law.

Of course, that's easier said than done, especially with a divided Congress. Still, if the Senate doesn’t agree with the House that the executive is misinterpreting laws, that tends to undercut the case that the president is misbehaving. At any rate, much of the problem here (at least beyond simple hyperbole) is that when it comes to the Affordable Care Act and several other laws Obama is accused of evading, House Republicans have no intention of making the laws work well. They’re merely looking for another opportunity to undermine them. That doesn’t get Obama off the hook if he’s in error. However, it does mean that the reason House Republicans have no available and reasonable remedy is that they reject the obvious one of passing patches that would restrain the president and allow the underlying law to work.

So, really, the proposed lawsuit isn’t just a simple ducking by the House of its responsibility to impeach if necessary; it’s a double evasion of the chamber's first responsibility, which is to find legislative solutions to real problems.

To contact the writer of this article: Jonathan Bernstein at Jbernstein62@bloomberg.net.

To contact the editor responsible for this article: Max Berley at mberley@bloomberg.net.