Presidents are supposed to obey the law; John Boehner, the Republican speaker of the house, thinks Obama isn't complying, so he intends to sue him in court. Boehner will use legal avenues against Barack Obama because he makes what Boehner calls excessive use of executive orders to govern. Boehner says there is a clear division of powers between the executive and legislative branches of government, with an eye toward Obama's many executive decrees.
Obama, who doesn't control both houses of Congress, recently raised the minimum wage for employees of companies engaged as government contractors and put a stop to the deportation of children who entered the United States illegally. Congress feels as if it has been ignored.
It's business as usual in American politics to accuse the president — if he is not a member of your own party — of using authoritarian methods in governing. When the White House and Congress are unable to agree on new legislation, the president routinely uses the executive order to enact changes. These executive orders, while not formal laws, function as if they were until the president leaves office.
Arthur M. Schlesinger, a historian close to the Democrats and the Kennedy family, wrote a book on “the imperial presidency” in 1973, in which he gave a contemporary overview principally of President Richard Nixon's use of such orders in order to circumvent involving the House and Senate in the legislative process.
Schlesinger later noted that Ronald Reagan did likewise; Gene Healy, vice president of the libertarian Washington think tank Cato Institute, accused Democrat Bill Clinton of having a Nixonian view of presidential power. Later historians concluded that Clinton was the president who insured that the “imperial presidency” would not perish with the Cold War.
Currently, Barack Obama is the target of such attacks. Boehner remarked to his deputies that Obama passes laws by decree. He further remarked that Americans say, “We elected a president, we didn’t elect a monarch or king.”
For that reason, Boehner will introduce a bill against Obama's “aggressive, high-handed tactics” which he claims violate the separation of powers laid out in the U.S. Constitution. It doesn't entail impeachment, Boehner assured the press. He only wants the court to clearly define the limits of presidential powers.
Obama: “I’ve got a pen and I’ve got a phone”
One cannot claim that this attack on Obama comes a surprise. When viewed in light of the dignity of his office, it may even be said he prayed for such an attack. He made sure everyone knew he intended to pass laws with his pen and the telephone so long as Congress refused to act.
Just last Thursday, the Supreme Court ruled that Obama had overstepped his authority in appointing members to the National Labor Relations Board without congressional approval. That, however, involved one concrete occurrence: The Senate had not been in recess, but rather had been granted a pause at the request of several senators over several days. The justices ruled it had not been in permanent recess.
Those Causing the Blockage Shouldn't Complain
Obama signed executive orders barring the deportation of young illegal immigrants who had been brought to the United States as children. He raised the minimum wage for employees of companies doing contract work for the U.S. government. He finally authorized the Environmental Protection Agency to enforce strict new regulations regarding emissions from coal-fired power plants.
Boehner's announcement that he intended to have Obama's actions examined by the courts was expected, according to the White House. Deputy press secretary Josh Earnest said the president would prefer to work with both parties to pass legislation that would benefit middle class families.
But Obama said that, if necessary, he would act unilaterally using the executive powers he already has. Republicans, he charged, have blocked legislation that would further economic recovery; he also noted that they now seem to have accelerated their efforts to impede progress.
It's debatable whether presidential involvement in questions of immigration, environmental protection or wages for a small portion of the workforce are necessary for strengthening the middle class. There are the questions of Obama's decrees, in certain cases the targeting and killing of American citizens without trial for suspected terrorist activity or military action against Libya without congressional approval.
The Perennial Bad Boy, the “Do-Nothing Congress”
But the press secretary is on solid ground in attacking the “do-nothing Congress.” The Democrats control the Senate, while the House of Representatives is held by the Republicans. That usually leads to laboriously negotiated compromises and in legislation getting bogged down by interparty squabbling. The term “do-nothing” was applied because of the meager legislative output in Obama's first as well as second term.
When Congress refuses to play, presidents like to flex their muscles. Those who think that's improper are forced to admit that other presidents were responsible for far more executive orders than the current White House resident. George W. Bush issued 291 executive orders, Jimmy Carter 320, Bill Clinton and Richard Nixon 364 each, and Ronald Reagan 381. All these pale in comparison to Franklin D. Roosevelt, who in his four terms through the war years issued an impressive total of 3,522. Obama's total thus far is a mere 180.
The U.S. courts have shown little enthusiasm for mixing it up in the volatile area of the separation of powers. Thus, it's not expected that the ruling John Boehner is looking for will be forthcoming, and if it is, it won't come for years — presumably long after Obama has left office. Five months ahead of the midterm election, the Republican offensive is more properly categorized as an election strategy.
On the other hand, it does fulfill a useful purpose in shining a spotlight anew on the stalemate in Washington's trench warfare. More important than legal shadow boxing would be the willingness of both sides to return to the wisdom of occasional compromise.