This week, House Speaker John Boehner announced that his caucus is thinking about suing the White House over President Obama’s abuses of power this week. (Technically, Boehner merely announced that an announcement is forthcoming, which is the purest example of a “trial balloon” you’ll ever see. If the goal of sparking a national conversation on the separation of powers is achieved by the pundit wrangling over the very idea of filing such a suit, Boehner and Co. might be spared the expense of ever filing the actual court papers.)
The big objections to this idea are (1) only a somewhat experimental legal theory could give House Republicans the legal standing to file such a suit, by demonstrating that Obama’s actions have injured Congress as a group; (2) it’ll take forever for such a lawsuit to get anywhere, so we probably wouldn’t see any hard-and-fast results until the Michelle Obama Administration; and (3) it’s a stunt, a dodge to evade using the very real, but politically dicey, powers Congress was given to rein in the out-of-control executive, namely impeachment and defunding. If American government has degenerated to the point that crucial separation-of-powers issues get settled on Judge Judy, the Founders must be weeping in Heaven.
The dangerous precedent set by the Obama years – upon a stage set by less spectacular, but still significant, abuses by his predecessors from both parties – is that all of the restraints on executive power are basically polite fictions. We live in something much closer to the majority mob rule feared by the Founders than the Constitutional republic they created for us. There’s nothing anyone can actually do if the President decides to ignore them, provided public outrage does not swell to the point that Congress can do something serious about it… and that’s not going to happen when the media is romantically in love with the President.
Everybody had a good laugh at Senator Dick Durbin (D-IL) saying that our benevolent dictator can simply “borrow” the powers from Congress that he needs to do whatever he pleases on immigration, if Congress won’t use those powers to further his agenda. But really, is that any more absurd than the justifications provided for Obama’s previous abuses of power? If the public is essentially convinced that only presidential elections really matter, the government urgently needs to Get Things Done, and gridlock between feuding parties in Congress is the ultimate evil, the hard work of erasing the separation of powers has already been done. Advocates of the imperial presidency don’t have to work very hard to come up with their flimsy excuses.
Sure, maybe the Supreme Court will eventually slap down the worst excesses of executive dictatorship, such as the President claiming the power to unilaterally declare Congress in recess. But that process takes years, and meanwhile the ambitious executive can get a lot done. If Obama “borrows” the authority to grant amnesty to illegal aliens, and sweeps a few more of them into the country to incubate as Democrat voters, and the Supreme Court decides in 2016 that he didn’t really have the power to do that, does anyone think the new “undocumented Americans” will be rounded up and sent home?
Another court remedy for the abuse of power is suggested by Mark J. Fitzgibbons in the Washington Examiner: empower citizens to personally file suit against individual bureaucrats who abuse their authority, Lois Lerner-style. He specifically mentions the Lerneresque drones at the IRS who illegally handed confidential tax data on the National Organization for Marriage over to its political enemies during the 2012 election season… an action the IRS has formally admitted to, giving NOM fifty thousand dollars of other peoples’ money in compensation.
Not only is that an absolute pittance of a fee for the services corrupt IRS officials rendered to NOM’s political adversaries – if they’d known it would only cost fifty thousand bucks, they’d have happily written a check and thrown in a tip for their helpful IRS contact – but it doesn’t hurt any of the individuals who actually perpetrated the crime. Fitzgibbons suggests that making individual bureaucrats personally face severe financial penalties for their misdeeds could at least make them think twice about abusing their authority.
The big problem with that idea is that it would unleash a tidal wave of lawsuits, many of them frivolous. There might be a little poetic justice in the spectacle of our lawyer-stuffed Big Government grinding to a halt as thousands of lawsuits from aggrieved citizens haul thousands of bureaucrats into court, and the threat of personal consequences probably would rattle the cages of currently insulated miscreants, who know it’s unlikely they’ll even lose their jobs for anything but the worst abuses. But it wouldn’t be long before we heard a mighty hue and cry about how our all-wise, all-knowing Leviathan State was choking on a wave of abusive lawsuits, and I suspect legislative remedies would be made available the instant Democrats had the congressional power to do so.
I don’t think there’s any real solution to the abuse of power, except trimming back the power. There are no big, honest governments.