The news: Speaker of the House John Boehner has announced that he will be suing the Obama administration over his alleged abuse of executive power.
"This is not about impeachment — it's about him faithfully executing the laws of this country," said Speaker Boehner. He claimed that the president has not only broken the law but "brags about it," accusing the president of "arrogance and incompetence."
Boehner claims president's actions could shift the "balance of power decisively and dangerously" to give the executive branch "king-like authority." Specifically, Boehner accused the president of illegally circumventing Congress in health care, education, foreign and energy policy.
Republicans have essentially accused Obama of doing something they refuse to do: govern. The New York Times recently noted that America is basically dealing with a do-nothing Congress at point:
This House is on track to produce the lowest number of legislative proposals since the Clinton administration. Through mid-May, representatives introduced 18 percent fewer bills compared with the same point in the previous Congress. That’s the largest drop between Congresses in the period beginning in 1995, when Republicans overturned decades of Democratic rule in the House. The number of lawmakers who have introduced at least 25 proposals has fallen by nearly two-thirds compared with the previous Congress. The number who have produced five or fewer pieces of legislation has jumped 81 percent.
How many of these executive orders has the president passed? The fewest of any president in the past 100 years. From the Brookings Institute's John Hudak, here's the number of executive orders issued per day on average by each American president:
In fact, Politifact analyzed a common chain email listing of supposed Obama executive orders and found that large numbers of them were issued by other presidents.
Still, the claim on the right is that President Obama's relatively few executive orders are super illegal, way more illegal than those issued by previous presidents. And if you expand the scope to the more nebulous concept of executive action, the legal territory does get a little more complicated.
Which executive actions do congressional Republicans find so problematic? There's a few in particular which have raised heckles on the right, even though they are actually pretty mundane as far as executive orders go. Here are a few:
Immigration: In 2012, Obama ordered the DHS to stop deporting illegal immigrants who entered the country before age 16, have lived in the United States for at least five years and either attend school, have graduated from high school or are military veterans. They must also have clean criminal records and be under the age of 30. The president's supporters claim that as the head of the executive branch, Obama has the power of prosecutorial discretion and can choose not to pursue civil charges against young immigrants. Politifact says the order is controversial, but probably not extensive enough to be a constitutional violation.
Carbon emissions: Obama issued an executive order allowing the EPA to regulate carbon emissions from power plants, which really infuriates global warming deniers. The Supreme Court recently rebuked the EPA's broad authority to address global warming threats, but found it had the ability specifically to curb greenhouse gas emissions. Thus, it's unclear what there is to sue about, since the battle has already been fought in court.
Student loans: Obama used executive action to ease student loan debt by expanding the scope of a previous program. His new plan would put a cap on millions of graduates' loan payments at 10% of their monthly income.
Health care reform: After a rocky rollout of the Affordable Care Act (Obamacare), the president unilaterally extended deadlines for enrollment. No one complained when President Bush did the same thing for a smaller Medicare Part D program, and The Atlantic noted that "temporary postponements of tax reporting and payment requirements are routine."
Minimum wage: President Obama raised the minimum wage for federal workers through an executive order that The National Review Online and other Republicans have called unconstitutional since it didn't stem from any act of Congress. But the president has the authority to oversee federal contracts; for example, President Johnson signed an executive order in 1965 ordering his Secretary of Labor to ensure equal opportunities for minorities in federal contracts.
LGBT discrimination: Similarly, the president announced that federal contracts could no longer discriminate against LGBT people. This would extend ENDA-style protections to lesbian, gay, bisexual and transgender people working for the government — an estimated 400,000 to 600,000 federal employees.
DOMA: Obama refused to defend the Defense of Marriage Act, which defined marriage as between a man and a woman in court, infuriating many social conservatives. But the executive branch does not have to defend any U.S. law it believes is unconstitutional under good faith in court.
Terrorism: The Obama administration decided to kill alleged al-Qaida ringleader Anwar al-Awlaki, a U.S. citizen, using a drone in 2011 without providing any sort of trial. The case raises truly uneasy questions about when and under what circumstances the government can decide to flat-out kill someone. But something tells me the Republicans prepping the lawsuit don't care so much about this one.
What next? Boehner's lawsuit probably won't amount to much and will take several years to wind through federal courts, thus applying more to Obama's successor than the man himself. In this case, it means we're in for another round of pointless, anger-filled briefings, hearings and trials orchestrated for political effect. Expect Republicans to yell that any presidential decision they really hate is illegal and unconstitutional and the courts mostly to find not that much amiss.