So Sue Him




WSJ, Editorial Board

Forget impeachment. The House lawsuit is the real threat to Obama.

ObamaThe traveling “impeachment” carnival that put down stakes in Washington this summer may boost cable ratings, but the amusement rides and midway games are for children. The real story that could have political consequences is Wednesday’s 225-201 House vote to pursue a lawsuit challenging President Obama’s abuse of executive power.

The impeachment farce is getting so much attention because Democrats and some on the right see it as a money maker. Little did we know when we wrote recently that Sarah Palin and MSNBC had a shared interest in pushing impeachment that the former Alaska governor would soon debut her own $9.95-a-month subscription Web channel. When you’re trying to steal eyeballs from Glenn Beck and talk radio, it’s all about market share. Impeachment is a marketing tool, and never let anyone seem more furious at Barack Obama.

As for Democrats, they hope impeachment can motivate their otherwise dispirited donors and voters. Everyone from First Lady Michelle Obama to Nancy Pelosi to White House senior counsellor Dan Pfeiffer is begging the GOP to impeach their hero. House Democrats boasted that they raised some $2.1 million over the weekend from the ploy. Impeach him again—harder.


The shame is that this bipartisan cynicism is giving Democrats and the media the chance to dismiss Speaker John Boehner’s lawsuit as equally frivolous. As Mr. Obama likes to mock, “So sue me.” They said the same about the lawsuit challenging ObamaCare’s individual mandate and federal subsidies, only to see those emerge as serious legal disputes.

The House challenge involves crucial questions about the architecture of American government and the separation of powers—questions that haven’t been joined in this kind of challenge at the courts. Mr. Boehner contends that Mr. Obama’s habit of amending or suspending (not enforcing) statutes that conflict with his political goals have usurped “all legislative powers herein granted” by Article I to Congress.

In the nearby feature, the suit’s architects, David Rivkin and Elizabeth Foley, explain the larger constitutional import. By failing to faithfully execute the laws—on health care, immigration, drugs, education and much else—Mr. Obama is undermining political accountability and, by transferring too much power from one branch to another, individual liberty.

Mr. Rivkin and Ms. Foley’s theory is debatable, not least by those who would prefer that the judiciary stay out of disputes between the two political branches. Jurists like Justice Antonin Scalia or Judge Laurence Silberman of the D.C. Circuit Court of Appeals would need to be persuaded on the merits. James Madison intended that the political branches would be in tension, and in most cases it is better for them to compete to resolve disputes themselves as they have for most of this country’s 238 years.

The courts have generally held that Members of Congress as individuals lack the “standing,” or concrete injuries, to sue. As recently as this month a federal district court in Wisconsin rejected a case brought by Senator Ron Johnson over an ObamaCare provision. Standing doctrine that limits the judiciary to “cases and controversies” is one of the few meaningful restraints on its power.

Yet even as he tossed Senator Johnson’s suit for that reason, Judge William Griesbach wrote in his careful opinion that the executive branch had rewritten the ObamaCare provision “so as to render it essentially meaningless,” which, if proven, “would be a violation of Article I.” He cited Madison’s admonition in Federalist No. 47 that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”

The difference between Mr. Johnson’s suit and Mr. Boehner’s is that the House is making an institutional challenge to executive abuse. The courts may take such a challenge seriously, in particular because the suit claims that Mr. Obama’s abuses are usurping the institutional power of Congress under the Constitution. The obligation of elected officials on both ends of Pennsylvania Avenue is to leave their offices no weaker than they found them, and Mr. Boehner realizes that Congress’s core power to write the law is being hijacked by Mr. Obama.

The Supreme Court has already responded when this President’s law-breaking has been challenged by private parties. This past term the Supreme Court rebuked the White House for its unilateral overreach in appointment powers (Noel Canning), unlawfully rewriting the Clean Air Act (Utility Air Regulatory Group) and infringing on religious freedom (Hobby Lobby).


Liberals claim that Mr. Obama’s pose as law giver is necessary because Republicans are obstructionist, and, anyhow, the Constitution’s limits are the dusty artifacts of the 18th century unsuited to modern times. One irony is that they dismiss the House suit even as they claim to be troubled by national security surveillance that has always been grounded in both statute and the Constitution, with no evidence of abuse.

Yet Mr. Obama’s claim that he can pick and choose which laws to enforce is far more offensive to the American tradition than anything the government has done in the name of antiterrorism. The House challenge is an opportunity to vindicate the genius of the Framers to prevent the exercise of arbitrary and centralized power.

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