Boehner’s Suit Against Obama Cuts to the Constitutional Core of the Republic


The issue of congressional standing to sue the President will decide whether future Presidents have the arbitrary power to enforce, alter, or ignore laws or parts of laws they do not agree with.  The Republic is at stake.

Boehner's Legal Showdown With Obama

Boehner’s Legal Showdown With Obama

Paul Gordon Collier- Ralph Benko, a friend of The Freedomist, wrote a provocative piece  in Forbes today  called Faithful John Boehner To Faithless Barack Obama: Checkmate?

I believe this article gets to the absolute fundamentals of the issues at play in John Boehner’s lawsuit against the Obama administration.  While many on both the left and the right criticize the lawsuit being brought by Boehner as being a frivolous political game that will ultimately backfire, Benko holds a surprisingly different view, one that we at The Freedomist similarly hold.

In the article., Benko says:

The Constitution requires the president to take  a solemn oath to preserve, protect, and defend the Constitution, before taking office:

 I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

The Constitution sets forth, at Article One, section 3, a presidential obligation to “take care that the laws be faithfully executed.”

There is no explicit mechanism to sanction a president for failure to preserve the Constitution or faithfully execute the laws. The Constitution provides only for the impeachment and removal of a president from office and then only for “treason, bribery, or other high crimes and misdemeanors.”  Obama, manifestly, has not committed an impeachable offense. Violating one’s oath of office is not even a misdemeanor. 

read the full article 

To paraphrase Benko, the checks and balances currently in place in the Constitution do not allow for the legislative branch of government to force a President to meet his basic Constitutional duties, to faithfully execute the laws of the land.

The Constitution does not EXPLICITLY empower the Supreme Court to check that abuse of power either.  However, if the legislature does not have the power to bring suit to Obama over disregarding their Constitutional, legislative power and setting up arbitrary rules on the fly, then the new reality is this- the checks and balances form of government is dissolved.

The power of the President, while it is not absolute, is near absolute.  Any legislation that is passed is subject to the political will of the sitting President as far as the degree to which the law will be implemented and even the degree to which the original intent of the law will be preserved.

A president with the power to change law at his discretion, using executive orders and regulators, is only one step away from being a King.  All that remains is to give him the power of originating and passing legislation on his own, an impediment that can be overcome by simply re-applying and selectively enforcing the laws that have already been passed.

Benko goes on to say this:
Obama has failed faithfully to execute the laws so many times, in so many ways, so relentlessly, and so brazenly, that he may have changed the game… in a manner that now may come to haunt him.  The other branches of the federal government appear, finally, to be rallying from their incredulity and coming to terms with something that poses a threat to the foundation of federal legitimacy.

read the full article 

We would like very much to believe that this was true, that the ‘other branches of the federal government appear….to be….coming to terms with something that poses a threat to the foundation of federal legitimacy.”   If this were true, then the result of a Boehner lawsuit, rather than being a frivolous political ploy, will turn out to be a major game changer that will significantly reverse all of the work this administration has done to empower the executive in ways not seen since FDR and Wilson.

The near-unprecedented power of this administration would be followed by Administrations with significantly reduced power and put into place a critical check on the Executive that, at present, is not there.

For those of you reading this who may lean left, bear in mind that this type of power may be used by Presidents who hold political views radically different than the one now in power.  Everything one President implements may be arbitrarily undone by the next President.  Many conservatives who embraced the Department of Homeland Security and the Patriot Act are finding out how true this principle is- be careful the power you enable in friends, it may someday be used by your opponents as well.

Benko elaborates on this reality here:

The nub of the matter is not a matter of “misuse” of executive power.  It’s a matter of failing to carry out an unequivocal Constitutional directive.  A Supreme Court refusal to give Congress standing for this this would say, by implication, that a president blatantly can ignore his Constitutional duty faithfully to carry out the laws.  That implication would be certain to be exploited by future presidents of both parties.  This is a subtle “design flaw” that only the Supreme Court can cure.

Boehner’s strategy is an elegant one. Those who consider it a facile political move to placate the hotheads talking impeachment are completely missing the play.   The usually discerning Jonathan Capehart, of the Washington Post,frets that this maneuver will bring about the very thing — impeachment proceedings — it is designed to avert. Not so.  Boehner’s hand is sure, his prestige within his caucus high.

read the full article 

While Benko rightly lauds Boehner for his brilliant gambit, I would also argue that the action could hasten the full destruction of our American form of Republicanism.  Once the Supreme Court refuses to give congress standing to bring suit to the President over his failure to faithfully execute the laws passed, the proverbial genie is out of the bottle.   The political Pandora’s box is laid wide open, never to be closed again.

The very next election for the Presidency will be the most desperate, most expensive, most hard fought campaign ever.  It will dwarf all other campaigns as it will become clear that the only real power that matters is the power of the Executive.   An ‘elected’ King or Queen will take the place of a President of a Republic.

This is not to say that I do not support Boehner’s lawsuit.  I absolutely support the lawsuit.  When Cicero stood and challenged the actions of Catiline, it could be argued that his actions hastened the demise of the Roman Republic.  But had Cicero not challenged the unprecedented actions of Catiline, the Republic would have fallen anyway.  This, I believe, is where Boehner is today.  While his actions may hasten the demise of the Republic, inaction will all but guarantee that demise.

If congress does have standing, I have little doubt that the President’s arbitrary changing of laws and the refusal to execute other laws will be found to be unconstitutional.  This has implications that go far beyond the Affordable Care Act.  What’s at stake is most of the work this administration has accomplished over the last 6 years, from the ACA to Immigration Law, from Labor Law to Environmental Law. Key parts of the Administration’s infrastructure that has fundamentally changed the American landscape would be undone.

Perhaps this fear of seeing so many progressive dreams undone by such a ruling is motivating many on the left to support very anti-liberal practices by a President who happens to hold the ‘right’ views.  What many progressives fail to realize is that the precedent set by Obama allows the next President who opposes these progressive dreams to undo them with the stroke of a pen.  The very power that has been used to bring to fruition these progressive dreams is the same power that can be used to undo them.   In other words, the progressives will be hoisted on their own petard, but the Republic will be the collateral victim of such a mistake.

If my supposition is right, then the fate of the Republic really lies on one issue- standing. Benko understands this well when he writes:  The reed upon which Obama’s defenders are hanging their defense is the doctrine of “standing.”  Simply put, in order to bring an action at law one must have someone who has been injured who, thereby, has “standing” to sue.  Standing is defined by the Court.  It derives from the Constitutional requirement that the Court’s authority is to decide “Cases.” Article III, Section 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution….”

read the full article 

The Supreme Court has much leeway when it comes to interpreting standing.  From the article:

From the University of Missouri-Kansas City’s Exploring Constitutional Conflicts:

Among the essential elements of what the Court considers a case or controversy is an injured plaintiff.  The requirement that a plaintiff show that he or she has suffered “injury in fact” is a key requirement of the Court’s doctrine of standing. (Note: Since standing is necessary to establish jurisdiction, courts will undertake to examine the issue even if not raised by either of the parties.)

Standing doctrine confuses both lower courts and litigants, because the Court manipulates the doctrine to serve other objectives.  When the Court wants to reach the merits of a case, the standing doctrine is often relaxed.  …

The standing doctrine consists both of constitutionally-derived rules and judicially-created gatekeeping (“prudential”) rules..

read the full article 

The issue of standing, in my opinion, will become the most significant constitutional issue posed to the Supreme Court since Marbury v Madison, when the Supreme Court decided it actually had the power to be the final arbiter of Constitutional interpretation.

I will end this article with the final words from Benko on this matter.  These are words I most heartily endorse and hold as my own:
Comes now John Boehner to checkmate a renegade President.  Simply by bringing this action Boehner deserves to go down in history as a great Speaker, a great defender of liberty, and a statesman.  If he wins, as well he might: Checkmate, Obama.

Be sure to read Ralph Benko’s full article for yourself.