To Sue the President

Speaker John Boehner announced that he plans to file a lawsuit against President Barack Obama over the President’s usage of Executive Orders.

Just go to your favorite and least favorite media sources, and there will in all probability be an abundance of stories and opinion pieces.

For individuals who would like to learn more about Executive Orders without any partisan bias in that one can read the actual orders and look at numbers from the different Presidential administrations, I recommend using The American Presidency Project at the University of California Santa Barbara, and The Federal Register from the National Archives.

I linked a page with a data table from The American Presidency Project, but to the left is a clickable table of various types of documents they have in their archives. In addition to Executive Orders, one can find transcripts Inaugural Addresses, Weekly Addresses, Signing Statements, and much more. Ideologies or partisanship aside, if you are seeking information from primary documents for any type of Presidential research this site provides easy access to a number of documents which would otherwise require consulting a bunch of resources to acquire.

More people are probably familiar with the vast amounts of information available from the National Archives and The Federal Register in particular. Above I linked directly to Executive Orders. If you are interested in other records and documents from the Federal Register, the direct link to the portal page is here. For research purposes, I can only say that having online access to this material is invaluable.

For opinions on the legitimacy of such an action as suing the President, I’ll link opposing Washington Post opinion articles from George Will and Dana Milbank.

Another perspective which cites Will’s piece specifically is Jonathan Capehart’s piece which appeared in yesterday’s edition of the Post.

Capehart mentions two bills passed by the House, H.R. 4138 the “ENFORCE the Law Act of 2014’’ and H.R. 3973 ‘‘Faithful Execution of the Law Act of 2014,’’ which are designed to give Congress legal standing and to expedite the legal process.

In reference to the legitimacy of suing the President, I believe an exchange which occurred on FOX news between anchor Neil Cavuto and Representative Michelle Bachmann (R-MN) helps paint a picture on reasoning and intent. I’m linking a Huffington Post article which has video of the conversation between Cavuto and Bachmann.

What I find intriguing is Representative Bachmann’s arguments to defund the Executive Branch. One that simplistic statement is impossible as there are multiple aspects of the Executive Branch, and it is unclear as to what aspects would be denied funding. It’s a similar argument to defunding ACA or Obamacare in that which specific elements would be cut as a single container does not exist.

More importantly is a fact that I have brought up numerous times on this blog regarding spending. How is this President or any President responsible for spending and our budgeting difficulties? Representative Bachmann emphasizes the power Constitutional power of the House of Representatives. The House’s own website cites the Constitutional provisions giving that body the power to spend public money for the national government.

It’s a continuation of Congress failing to carry out their duties and passing the blame. Think about sequestration. Congress did not make the necessary cuts and thus the automatic across the board cuts happened. Then, Congress complained that these cuts were broad and not specifically dealing with the important issues in the spending of each individual agency. Sequester was a tool to make Congress conduct business, but they refused. Likewise, think back to the huge carnival of No Budget No Pay. We still don’t have a budget, and both Representatives and Senators are receiving paychecks. Nobody was at risk because of the 27th Amendment, but the provision of delaying pay has not been carried out.

Of course some will accuse me of conflating the issue as the lawsuit is not about what Congress had failed to do but what the President has done to seize power and erode the separation of powers as defined in the Constitution.

Well some argue in favor of the President using numbers. I believe numbers are significant, but in reality tell little in this situation as all Executive Orders are not equal just as all pieces of legislation are not equal. Some have a profound impact while others barely register outside their inclusion in the Federal Register.

I look at the issue from that of historical precedents. The idea of Executive authority has been interpreted broadly since George Washington. Admittedly most are going to review history through their personal ideological lens. Inside a classroom, I know that I can give students copies of Executive Orders from different Presidents to read for content. To illustrate my ideological lens contention, the majority of time a student’s opinion about the legality or legitimacy of an individual order changes when they learn who issued the order.  I once had a class in uproar by “crediting” some orders issued by Ronald Reagan to Barack Obama and orders by Obama to Reagan. Approximately 90 percent of the students changed opinions after they learned which order went to which President. Please try that exercise yourself.

Actually one of the better assessments on the use and abuse of Executive Orders comes from the Heritage Foundation.

“In the end, the constitutional separation of powers supports both sides of the argument over a President’s proper authority. It reinforces a President’s right or duty to issue a decree, order, or proclamation to carry out a particular power that truly is committed to his discretion by the Constitution or by a lawful statute passed by Congress. On the other hand, the constitutional separation of powers cuts the other way if the President attempts to issue an order regarding a matter that is expressly committed to another branch of government; it might even render the presidential action void. Finally, separation of powers principles may be unclear or ambiguous when the power is shared by two branches of government.”

The piece may have been an argument against Bill Clinton, but apply the same points to President George W. Bush and President Barack Obama.

I think that either both men abused the power or neither abused the power. More specifically, I think it applies more to individual orders than President. I think one can see a pattern developing over the course of history. Ever increasingly, it seems that Executive Orders would not be “necessary” if Congress would have acted one way or another.

My opinion is that we can blame the House or the Senate for causing the gridlock. It really doesn’t matter because We the People are being hurt. Let us keep our blame separate but unify in demanding that both Chambers find a way to work together for the benefit of the country. Once issues have been addressed and We the People are united and the country is moving in a positive direction, we can then debate if we choose who WAS to blame.

If the preceding paragraph sounds profound or idealistic depending on your point of view, I’m not taking any credit since I’m paraphrasing words joined together many years ago by President Abraham Lincoln when it became necessary to Reconstruct the United States of America after more American blood spilled in 4 years on the battlefield than in all the other military conflicts involving the United States from formation until today combined.

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One thought on “To Sue the President

  1. Just a note on research: realizing the value of such electronic portals is an area where I believe my peers and I have sort of an advantage over other generations of professors. We are young enough that we have always had electronic access to a number of primary documents either through specialized databases which we had to access in libraries or increasingly through the web, but we also had mentors who had produced much of their scholarship using older style research techniques involving travel in many cases to look at documents, card catalogs and bound journals, and the “new” technological sources of microfiche and microfilm. We had to learn both styles and have spent similar energies in terms of before and after. It’s not an exaggeration when I tell my students that I have spent more days, not hours, that I care to count hand cranking newspaper microfilm because I found it easier to read on those machines versus the electronic knob readers where you could print on that slick paper and needed to lay the prints out on the floor, backs of chairs, and tables for the ink to dry. Many students can’t imagine the hand cranks or that type of photocopying. Wow I’m feeling nostalgic for the purple ink ditto machines of elementary school.

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