Last month, House Speaker John Boehner announced he would be taking President Obama to court over the Obama administration’s alleged executive overreaches, specifically with regard to the Affordable Care Act.
While the issues within the lawsuit might appear esoteric to casual observer, it could have implications on other policy matters where the Obama administration has selectively followed the letter of the law.
A lawsuit as a tactic to check executive power, however, was likely not what our Founding Fathers had intended.
There are a number of ways the Congress and even one chamber of the Congress can check executive power in our democracy with three co-equal branches. Traditionally, it has been through the power of the purse. However, there is Article II, Section 4 of the U.S. Constitution, which is the impeachment clause.
In the last 20 years Congresses have been reluctant to use the power of the purse to starve government agencies that execute the law of the funds to do so – in other words, shut down the government.
With previous government shutdowns – especially under a Democratic president with a Republican controlled Congress – presidents have had a willing accomplice in the media to show the negative aspects. Think of images of sobbing children at the gates of Yellowstone National Park unable to see Old Faithful.
Even if there is just a threat of a government shutdown, media outlets line up at the gates of the nearest military base seeking out some human interest hardship story that ultimately demonizes the GOP, which is now the party of tax breaks for billionaires or something.
In a congressional environment where the emphasis is on maintaining power, using the power of the purse has been a marginalized tactic.
As far as Boehner’s lawsuit – this is unchartered territory in our system of government and could backfire if the courts rule in Obama’s favor or even if they declare Boehner’s lawsuit is without merit because he does not have the standing to challenge the Obama administration.
That leaves us with impeachment.
Many have seen impeachment as a measure of last resort. That impression only intensified following the unsuccessful impeachment of then-President Bill Clinton in 1998 for perjury and obstruction of justice. Since then most have considered talk of impeachment as a radical measure, one that serves to interfere with the primary goal of maintaining control of power.
The threat of impeachment against the executive branch, thus, has been somewhat neutered.
Despite the current, relatively radical connotations of impeachment, Alexander Hamilton recognized the need for such a process in a democracy. In the “Federalist Papers,” Hamilton wrote about it as a means to keep in check abuses and violations of “public trust.” He wrote that it should be Congress, not the judiciary, which conducts this process.
Fast-forward to 2014, where you have an Obama administration that acts with little regard to what Congress says and the primary reason is there’s not really a downside. Using the power of the purse has become politically untenable. Challenges to executive authority through the judiciary take a long time. And impeachment has been taken off the table because of an effort that failed 15 years after being successfully demagogued as prudish Republicans prosecuting “Slick Willy’s” promiscuities in the White House.
But hasn’t enough time passed that Republicans shouldn’t be punished for the indiscretions of the 1990s?
Even if one thinks impeachment is a measure of last resort, why would you take it off the table?
Last week, former Gov. Sarah Palin (R-Alaska), the 2008 GOP nominee for vice president, said now is the time to move on impeachment of Obama.
“It’s time to impeach; and on behalf of American workers and legal immigrants of all backgrounds, we should vehemently oppose any politician on the left or right who would hesitate in voting for articles of impeachment,” Palin wrote in an op-ed for Breitbart News. “The many impeachable offenses of Barack Obama can no longer be ignored. If after all this he’s not impeachable, then no one is.”
Right now, there is likely a very weak case to be made that Obama’s indiscretion rise to the level of “Treason, Bribery, or other high Crimes and Misdemeanors,” as laid out in Article II, Section 4 of the Constitution.
Certainly his administration has made things up as it has gone along with his signature legislation in ObamaCare. There has yet to be a verifiable link between President Barack Obama and the wrongdoings at the Internal Revenue Service involving the agency’s targeting of political groups. The Drug Enforcement Administration’s Fast and Furious program, the handling of the Sept. 11, 2012 terrorist attack on the U.S. consulate in Benghazi, the swap of prisoners of war for U.S. Army Sgt. Bowe Bergdahl without notifying Congress – none of those would likely measure up to treason, bribery or high crimes and misdemeanors.
It’s probably a little early to start calling for Obama to be impeached. Even if impeachment articles are brought by the House of Representatives, it would be dead on arrival in Democratic Majority Leader Harry Reid’s Senate. At minimum, the process would need to wait until after the midterm this fall, should the Republican Party wins enough seats to regain control of the U.S. Senate.
That doesn’t mean, however, that impeachment should be treated as some antiquated loophole buried in the U.S. Constitution that is never to be used and thus taken off the table.
Completely dismissing it will only embolden President Obama and give more power to an already increasingly heavy-handed executive branch and further diminish the power of the legislative branch in a system that was set up for three co-equal branches.