House Speaker John Boehner, R-Ohio, on Wednesday announced he will sue President Obama over his profligate use of executive orders to make laws apart from Congress.
Political pundits couldn’t help but note that even though Boehner said the suit is not about impeachment, it could be a logical next step.
Under the headline “Speaker Boehner’s Obama impeachment dress rehearsal,” the Washington Post’s Jonathan Capehart noted even before Boehner announced his move that the Republican leader was “fed up with what he views as Obama’s ‘offenses against the separation of powers.’”
Boehner said of Congress on Wednesday: “When there’s conflicts … between the legislative branch and the administrative branch, it’s, in my view, our responsibility to stand up for this institution.
“This is not about impeachment, this is about his faithfully executing the laws of this country.”
Boehner said the Constitution "makes it clear that the president's job is to faithfully execute the law."
"In my view, the president has not faithfully executed the law," he said.
Obama has frequently used executive orders to change laws he doesn't like, including with regard to Obamacare. He's granted exemptions from requirements of the health care law, changed the dates on legal timelines and more.
He also used his peremptory "pen" and "telephone" privileges to drop a requirement in the law that recipients of certain kinds of federal aid work, and he's ordered Border Patrol agents to ignore the federal law regarding some illegal immigration.
Just days ago he arbitrarily ordered the Department of Labor to extend family leave to same-sex couples. And a short time earlier, he mandated that the minimum wage for federal contractors be raised and deportations of many illegal aliens be halted.
It was just a day earlier that Boehner told House Republicans during a closed-door meeting he's assembling advice from legal scholars.
Earlier, Boehner spokesman Michael Steel explained the issue.
"The president has a clear record of ignoring the American people's elected representatives and exceeding his constitutional authority, which has dangerous implications for both our system of government and our economy," Steel said. 'The House has passed legislation to address this, but it has gone nowhere in the Democratic-controlled Senate, so we are examining other options."
Obama repeatedly has refused to negotiate with members of the House over legislation then complained that the GOP leadership isn't cooperating with him.
Obama's "pen and phone" threat to Congress was reviewed by the Congressional Research Service.
The report, written by attorneys Vivian S. Chu and Todd Garvey, said: "While the president's ability to use executive orders as a means of implementing presidential power has been established as a matter of law and practice, it is equally well established that the substance of an executive order, including any requirements or prohibitions, may have the force and effect of law only if the presidential action is based on power vested in the president by the U.S. Constitution or delegated to the president by Congress."
Specifically, there are problems whenever a presidential action stretches into the authority of Congress, or other limits, the report said.
Citing the opinion of Justice Robert H. Jackson in a historic Youngstown Sheet & Tube Co. v. Sawyer case as a precedent, the evaluation from the CRS said there are problems with executive orders when they legislate, or write law, because the Constitution gives that authority to the Congress.
In the Youngstown case, the administration wanted to take control of steel mills during wartime, a move the Supreme Court rejected. Jackson opined that the president's authority is "at a maximum when he acts pursuant to an express or implied authorization of Congress."
In a gray area are mandates from the president in which the authority is uncertain, and the president's authority is "at its 'lowest ebb' when he 'takes measures incompatible with the express or implied will of Congress … for he can only rely upon his own constitutional powers minus any constitutional powers of Congress over the matter,'" Jackson analyzed.
What that means for a sitting president is that orders "issued pursuant to authority provided to the president by Congress, as distinguished from orders that are based on the president's exclusive constitutional authority, may be legislatively modified."
"Congress may revoke all or part of such an order by either directly repealing the order or by removing the underlying authority upon which the action is predicated. Either of these actions would appear to negate the legal effect of the order," the research service said.
The analysis came at a time when Congress deliberately had declined to waive, cancel or otherwise negate the nation's immigration laws to create an amnesty program for those who have entered the nation illegally. Yet Congress is bracing for what is expected to be a series of executive orders pursuing Obama's goal in that regard.
Commentator David Limbaugh wrote: "Under the administration of President Barack Obama, as never before in my lifetime, there is reason to be a bit afraid of the federal government. … Without any basis in the Affordable Care Act – or in any other law or constitutional provision – he has unilaterally handed out exemptions from that 'law of the land' like candy and has suspended its operation at his absolute whim.
"Has any president of this nation ever behaved and spoken as though he felt that being the president gave him royal powers – that he could just snub his executive nose at the other two coequal branches of the federal government and treat the states that didn't cow to his dictates as if they were bastard stepchildren? Has anyone in that office ever acted so entitled?"
WND columnist Chuck Norris commented on Obama's "115th executive order," regarding the confiscation of assets.
"'The National Defense Resources Preparedness' EO is a blatant desecration of our Constitution. It is a direct attack on the rule of law, our liberties and private-property rights," he said. "The astounding audacity in the document itself is that it never limits its execution to a time of war. In fact, it grants the president total command and control of most industries and consumer supplies, even in times of peace!
"This presidential order is another sweeping power grab in a long and dangerous legacy of government overreaches. Our founders would have absolutely never allowed it, and we shouldn't, either."
Talk-radio host Rush Limbaugh said Obama is "effectively nullifying the legislative branch of government."
"He's basically saying ... and he has in practically these words, said this, 'I got a pen and I got a phone and if they don't do what I want I'm going to it anyway.'
"That's not a ho-hummer to me. That is major. If the chartered body in our government that makes the law decides not to because they don't think it'll matter, because the executive branch will just ignore it, I mean that's a breach of serious proportion," Limbaugh said.
"That is a constitutional challenge and crisis that is very real that nobody apparently has the courage to do anything about because of the president's race," he said.
Ambassador Alan Keyes wrote that the Constitution's "checks and balance" system "only operates effectively through the energetic initiative or effective resistance of the different branches of government."
"The executive has the advantage when it comes to energetic initiatives, or 'active resolutions' as Alexander Hamilton put it," Keyes said. 'The judiciary makes decisions, but has no enforcement power. The legislature formulates and adopts laws, but the Constitution leaves actual implementation/enforcement of the laws to the executive, i.e., the president of the United States."
Obama's aggressive use of executive orders dates back to his first inauguration, when he ordered presidential records sealed in a move that has remained largely unexplained.
Judge Andrew Napolitano told WND there are few practical limits on what Obama could include in his orders, and fighting back is a long and hard course.
"There really is no line," the judge told WND in an interview. "We have the welfare state, the warfare state, we also have the administrative state."
That, he said, allows a president through his appointees to issues rules and regulations, impose requirements and change America.
It was a presidential aide to Bill Clinton, Paul Begala, who put the controversy into perspective back in July 1998.
"Stroke of the pen. Law of the land. Kinda cool," he said, delighting in how the Clinton machine was able to dictate laws.