"As long as [Congress is] doing nothing," President Barack Obama declared last week, "I'm not going to apologize for trying to do something." And what if lawmakers object to this unilateral stance? "So sue me," the president taunted.
That taunt is now on the verge of becoming a reality. Writing at CNN.com, House Speaker John Boehner announced his intention to "bring legislation to the House floor that would authorize the House of Representatives to file suit in an effort to compel President Obama to follow his oath of office and faithfully execute the laws of our country."
At issue in this impending legal showdown between the legislative and executive branches of the federal government is Article II, Section 3 of the U.S. Constitution, which requires the president to "take Care that the Laws be faithfully executed." According to Boehner and his congressional allies, Obama's penchant for overreaching executive power has made a mockery of this constitutional requirement.
"In the end, the Constitution makes it clear that the President's job is to faithfully execute the laws. And, in my view," Boehner argued, "the President has not faithfully executed the laws when it comes to a range of issues, including his health care law, energy regulations, foreign policy and education."
Boehner's view received an added boost last month when the U.S. Supreme Court ruled 9-0 against Obama's unconstitutional use of the Recess Appointments Clause in National Labor Relations Board v. Noel Canning.
But not all conservatives believe Boehner is pursuing the wisest course of action. Writing at The Weekly Standard, for example, Terry Eastland has contended that while "Boehner is right to complain about Obama's serial executive power abuses," turning to the federal courts risks opening a Pandora's box of "government by judiciary." According to Eastland, "if Boehner and his House colleagues succeed in persuading the judiciary to open this door to judicial review, even by a crack, it is likely over time to be opened further, even to the point that the president is granted standing to bring separation-of-powers lawsuits against Congress." The better course, Eastland argued, "would be to work against Obama's unilateralism with tools already in hand, which are necessarily political ones," such as the House's "legislative, oversight, and appropriations powers."
Other conservatives, however, have voiced support for Boehner's suit. "When the President is usurping core legislative powers, Congress as an institution can sue to vindicate this constitutional injury," The Wall Street Journal recently editorialized. Indeed, the Journal declared, "short of impeachment, there is no other way for Congress to defend its rights."