Lawsuits, Op-Eds, and the Nature of this Administration's Executive Actions

By Dan Cadman on July 10, 2014

House Speaker John Boehner (R-Ohio), in a follow-up to his formal announcement that the House would vote on authorizing a lawsuit against the president for executive overreach, has now published an op-ed on, presumably to explain his reasons for the lawsuit.

It is important to note that Boehner has not tipped his hand in indicating exactly which (or even generically what type of) executive actions will be the subject of the suit alleging a violation of the constitutional separation of powers, although there is a fair chance that the administration's multiplicity of forays into the immigration policy arena will form some part of the fabric of the lawsuit.

While that might be music to the ears of people like me, who believe in the importance of a viable system of immigration laws (including consequences for breaking those laws through removal from the United States), there is plenty of room to doubt the intensity of the speaker's willingness or motivation. This is primarily because of his vacillation between positions on the subject of "comprehensive immigration reform", which is usually a formulaic way of saying "granting of a broad-based amnesty now, with maybe, who-knows, a hint-or-promise-or-scintilla-of-a-chance for enforcement and expected compliance tomorrow." (As Mark Krikorian succinctly put it in a blog for National Review Online, this is the Wimpy formula from Popeye: "I'll gladly pay you Tuesday for an amnesty today.")

On the other side of the philosophical aisle, among those who want the amnesty and greater in-flows of immigration from many sources, there has been an equal and opposite reaction. My sense is that much of the reaction has flowed into two streams of thought — each, at least from my viewpoint, singularly uncompelling.

There are those who have reacted (as has the White House) by basically saying "do your job" and the president won't have to take such things into his own hands. The problem with this notion is twofold:

First, as many lawmakers (including House Judiciary Chairman Bob Goodlatte (R-Va.)) have observed, it appears to be vaguely threatening and extortionate. "Do this, if you don't want me to do that."

Second, even if you charitably assume that it isn't an attempt at wielding the Damocletian sword over congressional heads, "do your job" in this context seems to assume that our lawmakers are there to do the chief executive's bidding, and exercise no independent judgment as to what our nations laws and direction should be. Have they not heard the phrase "rubber stamp" and recognized that it isn't in anyone's best interest?

Then there are those who have begun counting up executive orders to compare them against other presidents, modern and historical, including Theodore Roosevelt. Not only is that a stretch, it is an empty exercise. Many of the "executive actions" undertaken during the president's watch, and with his blessing, have not been by presidential order, but rather filtered through underlings like the secretary of Homeland Security. Being of a jaded disposition, I tend to view that as a way of keeping a marked distance from the things he wants done in case they explode or implode. But even so, the main point to be made is that to understand how this president's executive actions threaten the constitutional order, one must look at what the executive actions have represented, and not simply how many have come to pass.

It is when one looks at their nature that one sees the pattern of legislative usurpation. (For an excellent exposition of the extent of constitutional erosion under this president, see "The President's Constitutional Duty to Faithfully Execute the Laws", hearing before the House of Representatives, Committee on the Judiciary, testimony of Professor Jonathan Turley, Shapiro Professor of Public Interest Law, George Washington University, given on December 3, 2013.)

This, above all things, explains why the Congress must turn to the third branch, the judiciary, to help them reestablish the appropriate boundaries in our tripartite system of separated powers. To do this, they must sue. Let us hope the judiciary understands the importance of its position in this controversy.