Boehner Pulls A Bachmann

The Speaker of the House of Representatives is going to sue Obama over his executive orders:

While Boehner has yet to announce the details of the forthcoming lawsuit, House Republicans have strongly opposed numerous unilateral decisions made by the Obama Administration, including halting deportations of immigrants who were brought to the country as children, postponing provisions of the Affordable Care Act and raising the minimum wage for federal contractors. In a letter to House members Wednesday, Boehner said he intends to bring legislation to the floor in July to “compel” Obama to follow his oath of office.

White House Press Secretary Josh Earnest didn’t say whether Obama and Boehner had discussed the lawsuit when the Speaker was at the White House Tuesday, and he criticized House Republicans for taking their opposition of the President into “a gear that I didn’t know previously existed.”

Never underestimate the cynicism of today’s GOP. Christopher Ingraham politely points to the above chart:

Back in February I analyzed the numbers on executive order frequency and found that Obama has actually been less likely to resort to the pen and phone than any president since Grover Cleveland. Just a few days ago, John Hudak at Brookings updated the chart through June 17 of this year and found that those numbers haven’t budged, at all. … As John Hudak writes, “claims that President Obama is issuing more than his predecessors is just flat wrong—and continues to be a talking point completely at odds with real data.”

Never underestimate the contempt for reality within today’s GOP. Here’s Beutler on Boehner’s nonsense:

[T]he fact that he hasn’t decided which laws the president isn’t faithfully executing, or which of those ill-executed laws merits legal action not to mention his indifference to executive overreach during the Bush yearsall pretty much give the game away. This really isn’t about the integrity of the legislature, and in a way, it really is about impeachment.

Waldman calls Boehner’s stunt “a kind of impeachment-lite”:

[M]y 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!”

How Philip Bump sees the suit:

This is generally being interpreted as Boehner expressing frustration about executive orders. That’s incorrect.

At least, that’s not the whole picture. This is, really, a fight about executive action. … In his letter to his peers, Boehner never mentions executive orders. “President Obama has circumvented the Congress through executive action,” he writes, without pointing to specific examples. The fight isn’t over executive orders; it’s over executive authority. That’s a much different — and much bigger — battle.

Arit John notes:

[While the lawsuit] could work out well for Republicans, Boehner may end up spend millions of taxpayer dollars — like the $2.3 million the GOP spent on its Defense of Marriage Act lawsuit — only to lose.

Never underestimate the profligacy of today’s GOP. Or their hypocrisy:

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.)

And here’s more evidence that this is all just fodder for Fox News:

According to Erwin Chemerinsky, the dean of the University of California, Irvine Law School, the speaker of the House does not have the ability to sue the president in this situation, even if Congress says he does. Chemerinsky says “standing,” the doctrine that allows a person to file a lawsuit in federal court by demonstrating that real harm has been caused to them, is defined by the Constitution. As a result, even if Congress passes a law, or in this case a resolution, which only requires approval by the House, it will not be binding on federal courts, as the Constitution trumps any law, let alone a resolution, and does not give members of Congress the ability to sue if they cannot prove real harm.

But Charles Pierce takes the bait:

Let us have a debate, then. Let us compare what Boehner says the president has done—which, by the way, he has done less than almost all of his immediate predecessors—and then let’s compare everything his House hasn’t done because it doesn’t like the president, his party, his politics, or (sadly) his race. Let us determine who is “faithfully executing” the jobs for which they all get paid. Hell, let us determine who’s actually interested in governing the country, or is counsel for the plaintiff going to argue that, if the country elects a obstructionist Congress, and that Congress holds together, then the country need not necessarily be governed by anyone at all?

That would be an interesting point to be litigated — if, again, this were a serious legal action, and not the latest and most elaborate clown show staged by a threadbare political circus.

Update from a reader, who plays devil’s advocate:

In all fairness to Boehner and the Republicans (who absolutely don’t deserve the benefit of the doubt):

1. Comparing the number of executive orders of different presidents is completely irrelevant. The real issue is whether some of Obama’s executive orders exceed his constitutional authority, not how many he has issued or how many Reagan issued. This is a red herring.

2. Likewise, the expenditure issue is a red herring. So the House spent a couple of million dollars defending DOMA. As we liberals are fond of pointing out, that’s a trifling sum in the context of the annual expenditure of the federal government. And, at least, DOMA received a thorough and professional legal defense, so that when the Supreme Court ultimately struck it down, no one can say that was only because the defense was inadequate.

3. Even though there’s no question that Boehner’s motives here are ultra-partisan, the issues of constitutional authority are legitimate issues and there’s nothing wrong with a legal challenge. Let the Republicans spend some money on this; I wouldn’t begrudge them paying for it.

4. They probably do have a standing problem here, and the Supreme Court may well band over backwards to find such a problem in order to try to avoid dealing with this. At least some of the executive orders could be challenged by real plaintiffs with real standing, e.g., the federal contractor who objects to paying a higher minimum wage.

5. The smart legal strategy would probably be to identify those orders as to which there is a legitimate question as to whether they exceed the executive’s authority. Plainly, many of the orders that Republicans don’t like aren’t controversial in this respect, and loading a complaint up with all of these just damages the plaintiff’s credibility. On the other hand, including a few orders that the plaintiff knows it is likely to lose on may give political cover to the Supreme Court to reject other orders.

6. The inaction of Congress is not a legitimate excuse for the President acting through executive orders where same exceeds his constitutional authority. This argument, like the cost argument and the argument about number of orders, doesn’t address the bona fide balance of powers concern that lurks under the partisan surface, and the repetition of these arguments just makes Democrats look bad.

7. Along the same lines, since there actually is a bona fide constitutional issue here, allegations of racism in this debate are wildly inappropriate. No doubt, there is a not insignificant portion of the Republican base, and even of the Republicans in Congress, who are at least in part driven by racism when it comes to their opposition to Obama. But there’s a real legal issue here – and many people who are legitimately concerned about the growth of Executive power – and you can’t dismiss this simply by claiming racism or partisanship.