Boehner’s Blunder: How Suing Obama Can Destroy the Separation of Powers

“The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system. He is becoming the very danger the Constitution was designed to avoid. That is the concentration of power in a single branch.”  December 3, 2013, testimony of George Washington University Law Professor Jonathan Turley before the U.S. House.

The Bill of Rights protects our liberties, but the Bill of Rights is not our only Constitutional protection. The Constitution’s separation of powers is less well-known but no less important. Obama brags openly that he will ignore the separation of powers. He will use his pen and his phone to bypass Congress. He will institute his personal rule over the United States.

John Boehner is acting to push back Obama’s violation of the separation of powers. Unfortunately, he is ignoring the means provided by the Constitution for doing so. He is suing Obama instead. As explained below, if Boehner’s suit succeeds, it will permanently destroy the Constitution’s separation of powers.

Boehner correctly claims Obama’s 2013 delay of Obamacare’s employer mandate violated the separation of powers:

In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it. No president should have the power to make laws on his or her own… The House has an obligation to stand up for the Legislative Branch, and the Constitution, and that is exactly what we will do.

It is the sworn duty of every Congressman to “stand up for the Constitution” and preserve its separation of powers. But standing up for the Constitution entails following the Constitution’s provisions, and  Boehner’s suit does not do that. When the end being sought is a Constitutional means of governing, every means to that end must be Constitutional as well.

If Boehner’s suit succeeds, it will destroy rather than preserve the separation of powers. Boehner’s suit cannot proceed unless the Supreme Court abandons the political question doctrine. This fundamental rule of jurisprudence holds that political disputes are beyond the power of the judicial branch if they involve the legislative or executive branches of the federal government. This doctrine preserves the separation of powers. The judicial branch cannot resolve these disputes without elevating its powers over those of the executive and legislative branches.

The Constitution provides two ways for the House to remedy an imperious president AND preserve the separation of powers. The first remedy is the House’s power over the purse. The Appropriations Clause of the Constitution (art. I, sec. 9) provides that no federal money can be spent without an appropriation from Congress. The Origination Clause (art. I, sec. 7) mandates that all revenue bills must originate in the House of Representatives. These two clauses give the House complete control over federal spending. Furthermore, the Speaker of the House controls which bills come to the floor. Boehner can prevent, by himself, any revenue measures from passing the House.

The House was given the power over the purse so that it could redress grievances against other branches of the federal government. As Madison writes in Federalist No. 58, “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect, every just and salutary measure.”

The House’s second remedy for an imperious president is impeachment under Article I, section 2. Some will argue that impeachment is not politically viable because conviction requires a 2/3 vote of the Senate. This argument misconstrues the House’s role under the Constitution.

Impeachments are not trials for impeachment. They are separate proceedings in separate bodies for separate purposes. Impeachment in the House is designed to discipline a president that abuses his constitutional responsibilities. Trial in the Senate is designed to remove a president from office.

Every member of the House has a duty to impeach any president who threatens the Constitution. Each has a sworn duty “to fully and faithfully defend the Constitution against all enemies, foreign and domestic.” The duty to impeach depends on what the president is doing, not on what the Senate might do. Article II, section 4 adopts the phrase “High Crimes and Misdemeanors” from the history of impeachments in England. “Misdemeanors” means simply “misdeeds” and requires no criminal conduct.

Unfortunately, Boehner rejects both Constitutional remedies, and his decision to sue is a lose-lose proposition. If Boehner loses, Obama will be emboldened to more misdeeds. If Boehner wins, however, it means the Supreme Court has abandoned the political question doctrine.

The political question doctrine maintains the separation of powers by prohibiting the judicial branch from resolving political disputes involving the legislative or executive branches. The Supreme Court has therefore applied the political question doctrine in refusing to hear cases involving foreign relations, Martin v. Mott (1827), Constitutional amendments, Coleman v. Miller (1939), disputes regarding Congressional elections, Roudebush v. Hartke (1972), disputes regarding political party conventions, O’Brien v. Brown (1972), management of the military, Gilligan v. Morgan (1973), and impeachment trials in the Senate, Nixon v. United States (1993).

Boehner’s suit falls squarely within the political question doctrine. The Supreme Court established four criteria for the existence of a political question in Baker v. Carr (1962). The first is a textually demonstrable constitutional commitment of the issue to the political branches of the government. The second is a lack of manageable standards for judicial resolution. The third is a need for finality in the action of the political branches. The fourth is the difficulty or impossibility of devising effective judicial remedies.

Boehner’s suit satisfies all the Baker criteria. The Constitution, for example, “textually commits” control of imperious presidents to the House through its powers over the purse and impeachment. Since all four Baker criteria are met, Boehner must persuade the Supreme Court to abandon the political question doctrine. Otherwise, his suit will be dismissed.

Such a holding would be disastrous. Boehner’s cure would be significantly worse than Obama’s disease. It would destroy the separation of powers by enthroning the Supreme Court as the supreme authority in every political issue. All our liberties would be subject to a case-by-case majority vote of the Supreme Court. As Justice Scalia wrote in District of Columbia v. Heller (2008), “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” A shift of just one justice on the Hobby Lobby Court would have subjugated our religious liberty to the abortion industry.

Let us remember why the separation of powers matters. The founders did not invent this idea. Three “simple” forms of government, monarchy, aristocracy, and democracy, dominated the West in ancient times. Each “simple” constitution had strengths, but each eventually became tyrannical and was ultimately overthrown. This cycle of tyranny and revolt was so common that it received its own name, anacyclosis.

The Greek historian Polybius (c. 200 BC – c. 118 BC) and the Roman statesman Cicero (106 B.C.-43 B.C.) shared a brilliant insight. Beginning with Sparta in the seventh century B.C., constitutions that merged elements from the three “simple” constitutions into a single “mixed” constitution escaped this cycle of tyranny and revolt. Sparta, Carthage, and Rome all prospered under mixed constitutions. Separation of powers maintained the mixed nature of these constitutions. Montesquieu’s The Spirit of the Laws (1748) followed Polybius and emphasized the separation of powers to maintain a constitutional government.

The United States Constitution adopted these principles. To minimize the potential for tyranny, a “mixed” constitution was established with three branches. Each branch emulated a “simple” form of constitution. Their powers were separated to prevent any single branch from gaining enough power to destroy the “mixed” nature of the constitution. Checks and balances, such as the House’s powers over the purse and impeachment, were created to maintain this separation of powers.

Unfortunately, no constitution can enforce itself. Obama has taken our country to its Constitutional tipping point, just as the Stuart kings did in seventeenth century England. Our leaders must use the solutions provided in the Constitution to solve this crisis while maintaining the separation of powers. If they lack the will to do so, if they are intimidated by fear of media criticism or losing their office, then the American people must replace them.

Sparta, Carthage, and Rome lost the political discipline required to maintain the separation of powers. They abandoned their mixed constitutions, and history soon abandoned them. There is no reason to believe that a different outcome awaits the United States if we follow their path.

As Christians we are obligated to obey man’s laws, Romans 13:1, so long as they do not violate God’s laws, Acts 5:27-29. The Constitution is the law of the land. We are obligated to follow it, and we must demand that our leaders do the same.

2 responses

  1. I expect the Supreme Court to duck this issue, in which case Boehner will be back to his original two choices — de-funding or impeachment. Since neither has worked for Republicans in the recent past, Boehner will find he has raised the bet, while playing a losing hand.

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