To Sue Or Not To Sue – That is the Question

Boehner to Sue White House Over Executive Orders

My initial assessment on this particular gambit by Mr. Boehner is that it is a fool’s errand. Granted, that opinion is not based on any current research into the legality, other than my reading of the US Constitution and (hopefully) a dollop of common sense.

For the record, let me state that I am appalled at the president’s apparent lack of respect for the rule of law and his imperious interpretation of his oath to “preserve, protect, and defend the Constitution of the United States.” I am of the opinion that those words which he quoted (twice) as he assumed office were simply sounds with no meaning to him and the inauguration ceremonies were a necessary evil to be endured as antiquated trappings on the path to a coronation.

But, I digress. Obviously, the only Court which would have jurisdiction in this case if it comes to fruition would be the US Supreme Court, because of the case originating in one of the co-equal branches of our government. I suspect SCOTUS will politely decline to even hear it. The logistics would be nightmarish. The optics are worse.

This current ploy by Mr. Boehner has all the earmarks of a temper tantrum. Even if he can prove a legal basis for bringing this suit, I don’t see how that translates to anything but contempt and derision from the American people at large.

Technically speaking, our three co-equal branches of government are 1/2 + 1/2 + 1 + 1 — the House and Senate each comprising the halves of the first enumeration. For the most part, those two halves are equal in their responsibility to ensuring that good government of the people, by the people is the continuing norm for the country. Although responsibilities differ somewhat, i.e., the power to levy taxes vs. advice and consent to the president, the intent of the Framers was to provide adequate checks and balances on each branch, and in this case, each branch of the branch to prevent the consolidation of too much power in one entity.

The Supreme Court, were they to accept this case would then be complicit in fudging the math to a new interpretation of 1 1/2 + 1/2 + 1, or possibly even 2 1/2 + 1/2, regardless of what determination they might reach.

Chief Justice John Roberts, in his opinion on the Affordable Care Act, when he singlehandedly rewrote the clear and concise language of Congress, changing it from a mandate (unconstitutional) to a tax (a power granted to Congress by the Constitution), stated that:

Elections have consequences.

There is absolutely no reason to believe that his opinion will have changed in the time since that decision was handed down, and therefore, every reason to believe that the Court would reject this case on that basis alone.

However, there is an even bigger reason for the Court to reject this out of hand. That reason is given in the Constitution itself. In the charter for this country’s government, the House is given the power to restrain any over ambitious president. The House of Representatives can bring Articles of Impeachment on the basis of “high crimes and misdemeanors”. Granted, those articles then need to be voted on by the Senate, and if approved, the president can be removed—a tedious and time-consuming process at best.

My point is, the means are already provided in the document that authorizes our system of government in the first place. That document says nothing about the Senate having to agree with the conclusions of the House.

If Boehner truly believes the president has exceeded his Constitutional authority, he should make a stronger case to those who disagree with him and he should act within the confines already established by that document he is claiming to protect. Going around or outside the Constitution in this instance would lend credence to a dangerous precedent already embraced by the president and his administration.