This week the Republican-controlled House voted to endorse suing the President of the United States, a move unprecedented in our nation’s 200+ year history. The root of the suit’s beef with the White House revolves around the executive branch’s implementation of the Affordable Care Act, because of course it does.
The ACA’s implementation has had a rather predictable amount of unforeseen snags, as any such sweeping piece of legislature surely must. And even if these snags have not measured up to the GOP’s sky-is-falling rantings, neither have they all been as entirely immaterial as Democrats might insist. In an attempt to make sure that the President’s signature achievement doesn’t blow up in his face (and take some part of the country’s economy with it), the White House has taken to doing what pretty much every presidential administration since George Washington’s has done before it: issuing executive orders to streamline a temporarily settled legislative issue into a bureaucratic one. But Republicans are now arguing that Obama does not have the Constitutional authority to arbitrarily make such executive orders. Publicly, they insist that these orders are essentially illegal ‘law making.’ After Wednesday’s vote, House-Speaker-for-the-Moment John Boehner declared in a prepared statement that the lawsuit “isn’t about Republicans or Democrats. It’s about defending the Constitution we swore an oath to defend.”
Outside the bloggy world of political armchair hobbyists, the House’s lawsuit has generated little interest outside the beltway despite its historic (if not cynical) nature. And this, I believe, is something of a shame. It really should be getting more attention from everyone. Indeed, I would argue that that the suit itself delves into issues more important, far-reaching, and urgent than the ACA itself. Because for my own part, I feel there are three indisputable facts that need to be noted about this Boehner-driven brouhaha:
Indisputable Fact #1: Despite what Republicans are claiming, this is absolutely a partisan move, designed to accomplish nothing but to appease its lunatic base while avoiding the terrible publicity it would garner by voting to impeach a popular President that hasn’t done anything his Republican predecessor had.
Indisputable Fact #2: Because it’s an attempt by the GOP leadership to avoid an electoral-crippling impeachment circus, it offers yet another piece of data that shows the Republicans’ strategy of tying themselves to the nutty populism of the Tea Party movement has finally become the political liability it was always fated to eventually be.
Indisputable Fact #3: Despite Indisputable Facts numbers 1 and 2, there is also this: The House is right.
One of the more persistent “facts” that pops up continually on conservative talk radio is the claim that Barack Obama uses executive orders more than all other presidents combined, and not just by a little. In fact, the statistics bandied about give the Tea Party’s insistence that the sitting POTUS has made himself a de facto dictator some potential juice:
EXECUTIVE ORDERS ISSUED:
Teddy Roosevelt: 3
Others Prior To FDR: NONE
FDR: 11 in 16 years
Truman: 5 in 7 years
Ike: 2 in 8 years
JFK: 4 in 3 years
LBJ: 4 in 5 years
Nixon: 1 in 6 years
Ford: 3 in 2 years
Carter: 3 in 4 years
Reagan: 5 in 8 years
Bush 1: 3 in 4 years
Clinton: 15 in 8 years
Bush 2: 62 in 8 years
Obama: 923 in 3+ years!
The problem, of course, is that even though these statistics have become a staple for Tea Party rallies and AM talk radio alike, they are — not to put too fine appoint on it — make-believe bulls**t. Indeed, other than the one-term George H. W. Bush, President Obama has issued fewer executive orders than any US President since — this is true — Benjamin “Hey, Maybe We Should Make the Dakotas Actual States” Harrison.
Just how cynical is the GOP’s lawsuit? Pretty fishing cynical, actually. Not only did Boehner defend and praise George W. Bush’s constant use of circumventing Congress by executive order, he went so far as to urge the Republican President to use the tactic on those issues he (Boehner) supported. And as if all that wasn’t enough to diagnose Acute Brass-Ball Syndrome, as Rep. Tom Cole noted today, the same GOP Congressional leaders who are pushing the lawsuit are simultaneously urging Obama to use the power of executive order to “fix” the problems at the border now that they have proven themselves unable to do so.
At the end of the day, of course, the GOP leadership doesn’t actually want the lawsuit to succeed any more than the Democrats wanted the same tool taken away when Bush sat in the Oval Office. Not only does pretty much everyone with a legal degree seem to agree that the case is frivolous, the GOP is rather inexplicably banking on a win at the ballot box in 2016. And even if the courts agreed to hear the case, it’s a truism that power’s first job is to justify power. It seems highly unlikely that in a world where it has been declared that public officials lying to constituents is protected free speech by the courts, the black-robed ones are going to jump in and overturn a long-standing system because of “good governance” issues.
And yet despite all of that there truly is something unruly and potentially dangerous to how we currently and collectively govern and give oversight to presidential executive orders, which is to say not at all. To be true, the vast preponderance of executive orders are both benign and necessary in a country whose government is tasked with implementing legislation passed by competing partisan political interests. Sometimes s**t just needs to get done. But peppered in with those benign orders are ones that should truly concern if not terrify the citizens of a pluralistic democracy.
Consider: If you are an ordinary US citizen who has been spied upon without warrant or cause over the past decade, the government has done so by executive order. When a White House administration takes measures to make sure the public never learns what they have done when no one was looking, they do so by executive order. When a strong Vice President decides he wishes to have sweeping powers not granted to him or her by the Constitution, those powers are given through executive order. If, after you invade an oil-producing country with the pretext that all future oil-based revenue from said invasion be used to rebuild said country, but decide immediately afterward that US petroleum companies who have made political donations deserve to have a little something’-somethin’ and that maybe their desires should take precedence, you arrange that through executive order. Executive orders are what US presidents have used to reinstitute government-sanctioned torture, restrict medical aid for plagues for reasons of good Christian sexual purity, and remove native Americans off of land that was legally theirs for no other reason than we might happen to want it at the moment. We have even historically used executive orders to intern law-abiding citizens based on nothing but race.
On the other hand, of course, executive orders can be an eventual source of national pride: the Emancipation Proclamation was an executive order, after all, as was the decision to integrate the military. Despite what Constitutional originalists might claim, therefore, there is clearly both need and long-standing precedence for executive orders. To whisk them away would truly cripple our government’s ability to perform even the smallest tasks — even those tasks deemed necessary by the same folks who want them eliminated. But just because you need something doesn’t mean you need it to work the way whoever works for the sitting POTUS wants it to work.
When we talk about executive orders, it is always under the most depressingly cynical of terms: Party not-in-power decries them while party in-power uses them at their discretion — sometimes unethically and (probably) illegally — without fear of consequences. Everyone may occasionally have to stand on a different side of that fence from time to time, of course, but at the end of the day no one can be bothered to consider changing the system because eventually everyone is going to have their shot sitting on the good side. Which is why despite the cynical nature of the House’s lawsuit against the President, I actually love the suit itself — and very much hope it gets heard by a court.
If we agree that executive orders are necessary, convenient, and oft good — but also responsible for some to the worst abuses of power in modern US history — what should we do with them? What oversight should executive orders have, and should that oversight be folded into the Constitution itself? What lines shall we draw in the sand — either through courts or legislation — that we all agree executive orders not cross? Over time, there are going to be additional temptations for Presidents to curb civil rights, disenfranchise citizens, and commit atrocities out of a combined sense of “national security” and convenience. Why not use this lawsuit and the national conversation that might follow as a way to erect those walls now, so that such temptations are taken out of their hands completely?
So I say: Sue away GOP. Sue like the wind. Sue over and over, until we as a nation feel comfortable that when we hand our next newly elected President one of those complimentary White House gift pens, we don’t worry what he or she might do with it.