Last week, Speaker John BoehnerJohn BoehnerHouse markup of ObamaCare repeal bill up in the air Conservatives to Congress: Get moving Boehner: ObamaCare repeal and replace 'not going to happen' MORE (R-Ohio) announced plans for Congress to sue President Obama over unspecified failures to "faithfully execute the laws of our country." Boehner suggested that the president is acting like "a monarch or a king" by "claiming for [himself] the ability to make law."
Boehner's vague charges do not specify exactly how Obama has overstepped his bounds — the closest Boehner came is when he referred to "matters ranging from health care and energy to foreign policy and education." Presumably, we will learn more when the lawsuit is filed. However, it is possible to make some assumptions about the overreach Boehner has in mind — and, in the domestic context, it is hard to see how these charges will have any success.
So, even if Obama was refusing to enforce the law, as Boehner suggests, successful litigation of the matter could prove difficult. But these "best-case scenario" facts do not exist for the Speaker. In the domestic areas Boehner has alluded to — healthcare, energy, and education — Obama has a persuasive argument to make that he has simply exercised discretion in setting enforcement priorities. The president's constitutional duty to "take care that the laws be faithfully executed" does not mean that the president is Congress's servant, obligated simply to carry out Congress's instructions without exercising discretion. Most laws don't work this way — in fact, many laws expressly authorize the president or executive branch agencies to exercise discretion and set priorities. Longstanding judicial precedent recognizes that the presidential duty to faithfully execute the laws includes the authority to set priorities as to prosecution and enforcement.
That does not mean that Congress is helpless if it disagrees with Obama's priorities. As Scalia points out, Congress has plenty of tools available — including the power of the purse, the ability to hold up nominations, the ability to rewrite the law to focus on priorities it desires, and even the power to impeach. It has used some of these tools already — recall last year's government shutdown. But Boehner and congressional Republicans will, of course, have to consider the politics — would it hurt them to be seen as obstructionists? Obama is already trying to make that case.
What's odd about Boehner's criticism of presidential overreach is that he (and other Republicans) seem to be focusing on domestic matters. There is actually a much better case to be made about presidential overreaching on national security and foreign affairs — in these areas, Obama's unilateral actions have gone too far. Oddly, though, Boehner and other Republicans are eager to defer to Obama on questions like whether to use military force in Iraq. That's a mistake. Boehner is right that Congress plays an important role in checking executive power when the president goes too far. But the real danger when it comes to presidential overreach right now is in the national security context, not domestic affairs. If Congress doesn't act on the national security front, it will be abdicating its own constitutional responsibilities.
Edelson is an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.