Sanity has definitely left the building when the Party of Unitary Executive President George W. Bush tries to make the case that Barack Obama has abused his powers under the Constitution. Since the Supreme Court’s ruling on recess appointments, Republicans have tried to stretch the significance of the ruling to somehow suggest it “proves” that John Boehner is right to sue the President at the taxpayers’ expense.
The fact is, there is no jurisprudence on recess appointments. Combine that with the fact that congress refused to hold hearings or vote on President Obama’s nominees. Logically speaking, since there is a constitutional power for the President to appoint people during recess, what he did amounts to using common sense. Compare that with the Bush Administration’s water boarding program, considering that water-boarding was found unconstitutional 50 years ago, and the allies called it a war crime 20 years before that.
Throughout Barack Obama’s Presidency the Tea Party controlled Republicans have indulged in paranoid fantasies about the president’s birth certificate, waged off the top rhetoric that only the most intellectually challenged would accept, wasted millions of taxpayer dollars on sham hearings and held the economy and the government hostage with obscene ransom demands.
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Now John Boehner wants to sue the President under the theory that exercising his constitutional powers somehow caused a great harm to Congress. A part of me really wants to use that logic to sue the romper room congress for the overreach inherent in their repeated attempts to circumvent women’s reproductive rights as guaranteed under the constitution as decided by the same court and for that matter Mr. Boehner’s efforts to sabotage implementation of the Affordable Care Act.
The party that continues to defend the Bush Administration’s unitary executive doctrine overlooks the fact that the same Court also found that the Bush Administration’s interpretation of executive power violated the Constitution in Hamdi v. Rumsfeld. There is a qualitative difference between President Obama’s decision to exercise the now moot recess appointment power after the do nothing congress refused to even vote on his nominees to the NLRB and the Bush Administration’s decision to deny an American Citizen several of his constitutional rights by sending him to the unilaterally created Star Chamber at Guantanamo Bay. Let’s not forget that even under a Military Tribunal void of many of the constitutional protections Americans have under our judicial system, cases were thrown out as a result of the Bush Administration’s use of torture to obtain that evidence. Torture is a crime under our criminal code, not to mention cruel and unusual punishment (thus violating the constitution) while also violating the Geneva Conventions of 1949 – not to mention the laws under which we prosecuted Nazis and Japanese warriors following World War II.
Ironically, President Obama has shown restraint compared to Bush regarding the number and scope of Executive Orders and signing statements. Nothing President Obama did at any time in his presidency comes close to the Bush Administration’s use of the Unitary Executive Doctrine to usurp both Congress and the Supreme Court.
So forgive my utter contempt for Mr. Boehner’s latest political stunt – namely his threat to sue the President under the pretense that the do nothing congress was harmed because the President attempted to do something under a power the Roberts Court ADMITS the President has. That is qualitatively different from the Bush Administration’s interpretation of its powers under Article 2 that the Executive is above the law and that is exclusively because John Yoo says so.
First, let’s talk about the very basic reality that the legislation enabling Boehner to sue the President is dead in the water. No doubt, the romper room members of the House will pass it, but it won’t pass the Senate and it sure as hell won’t be signed in to law by the President. Either Mr. Boehner knows that, which makes this yet another exercise in bovine fecal matter, or he is unfamiliar with the constitutional requirements to make law.
Also, the House will never have standing by itself to sue the President for not enforcing any other law it passed. (A favorite example of purportedly under enforced laws are the immigration statutes). The Senate would have to join that suit because without the Senate’s approval, no bill will ever amount to anything the President has to enforce. In other words, both the House and Senate have to have standing in order for the harm to be complete enough to bring suit. I’ll bet Harry Reid will never bring a vote to say so.
It’s difficult to take Boehner’s threat to sue seriously because even if there was merit to his case (which there isn’t) he doesn’t have standing. Peter M. Shane, a professor of law at the Ohio State University explained it to Think Progress:
Noting that there have been very few cases of Congress suing the executive over administrative discretion, Shane observed that the courts would likely find some doctrinal excuse “to get out of the way of an inter-branch food fight” between the legislative and executive branches. “The biggest problem would be standing,” he observed, noting that if the courts allowed Congress to sue “whenever any statute is implemented with what it considered to be insufficient speed or comprehensiveness,” opening of floodgates wouldn’t “even begin, as a metaphor, to cover the disaster that would represent.” (my bold)
Since Boehner wouldn’t have standing any attempt to waste more tax dollars by suing the President for doing his job a court would dismiss the case without considering the merits.
That said; let’s talk about the hubris behind claims that the Supreme Court’s ruling is “proof” that President Obama has a “casual approach to the rule of law” because the ruling was unanimous vs. the merely “difference” of opinion of other Supreme Court rulings.
Actually, power grabs are part of the authoritarian conservatism we see in the Tea Party controlled Republicans in Congress and the conservative Justices on the Supreme Court. Citizens United wasn’t based on legal principles, the constitution nor on jurisprudence. In fact, the Roberts wing of the Court threw out decades of jurisprudence in a ruling based on something other than legal principles.
In fact, according to Geoffry R. Stone’s comments to the NYT on the difference between Liberal and Conservative SCOTUS Justices when they rule on important cases. While Liberal justices tend to rule based on legal principles, conservatives alternate between judicial activism for the rich and more deferential when it comes to everyone else’s rights.
Something is motivating them other than a completely neutral detachment. They chose to be activist in certain types of areas, and strike down law when laws disadvantage the wealthy,” Stone said in my telephone conversation with him. The conservative majority takes “an aggressive, muscular approach” in striking down a key provision of the 1965 Voting Rights Act, but then “suddenly becomes very passive in deferring to the legislature in the voter ID case.”
The fact is the do nothing Mr. Boehner and his crew of Koch puppets are in no position to sue the President for doing his job, not doing his job or whatever. They don’t have standing, they won’t get standing and frankly Boehner knows it.
Image: U.S. News
Former contributor.
