Now most students of American government understand that the Framers created a system of Separation of Powers with inherent Checks and Balances. Whatever one branch of government does, another may check it - requiring further action to re-check if possible. In the instance of Executive Orders, Congress maintains authority to accomplish more than one remedy on their own. They could a). pass new bills curtailing the effects of the Executive, and/or b). de-fund Executive agencies from executing said Orders, and/or c). create specific Congressional Oversight Committees to monitor the affects of such Orders, and/or d). impeach a sitting president should they honestly believe they have a legal basis to do so. But none of these options appear to be on the table for the Republicans in Congress. Instead, they wish to immediately skip the typical forms of legislative "checks and balances" by creating a new precedent - litigating everything they don't like from the Executive in the Federal Courts. Seems easy right? Except the Framers did not provide for such a remedy - unless no other remedy is available to Congress. And as I mentioned, other remedies do exist. This gets into the notion of whether a matter is "justiciable" or "ripe" for judicial action.
Although Congress will complain that they have in fact exhausted their available remedies outside of the Courts, I find it interesting that the new leaders of the U.S. Senate (before even taking the reins of control) already are talking about litigating against the President. Already? You see, this seems to fit their political rhetoric that the president has been acting "Unconstitutionally" and the only entity capable of proving this claim are the Federal Courts. Except the American public elected a Congress to act, not a judiciary.
So why today's commentary? I mention this new political strategy because if successful, it may lead to a total abdication of the role of Congress under Article I of the Constitution. Why? Because Congress was elected to legislate and to provide a check against the president (whom is also elected by the people). Throughout American history, presidential actions have been met by traditional Constitutional opposition by Congress. Many actions undertaken by the Executive were addressed with additional legislation designed to limit the effects of the presidential action. But this Congress knows the president still wields the veto, not because the president made this authority up, but because the Constitution grants him this power. Andrew Jackson was consistently labeled a "tyrant" and "king" by his political opponents because they could not muster enough votes in Congress to override his use of the veto. Did they sue Jackson for relief? No, they accepted they could not overcome his veto without the Constitutionally required 2/3 vote in both chambers. So say the rules created by the Framers.
So if Congress can not override an effort by a president to veto a bill curtailing his executive actions/orders, what else can Congress do to provide an effective check against the man occupying the White House? How about de-fund all agencies involved in executive's actions? Congress has this ability under the Constitution. So what gives? What gives is the inability to curtail Obama's executive action on immigration because the one agency in control of immigration is Homeland Security. As a result, Republicans would appear "soft" on national security (even though they claim illegal immigrants are a security threat). What else? They could impeach the president. Even though this sounds far fetched, the GOP has more than enough votes to declare and pass Articles of Impeachment against Obama (a simple majority vote is required in the House to Impeach). But to pass such Article of Impeachment, they would have to substantiate claims the president has "high crimes and misdemeanors" against the United States. Now what could those be? So what stops them then? Perhaps the requirement that 2/3 of the Senate is required to vote for conviction and removal in order for the action to be valid? Perhaps they know deep down impeaching the duly elected president (it would be the second straight Democratic president impeached by the GOP) would look "petty?" Or, perhaps deep down they know Obama has not really been acting outside the authority vested him under Article II of the Constitution or under the principal of "Custom and Usage" - a tradition based extension of presidential authority relied upon all the way back to George Washington's presidency. Would more hearings in Congress accomplish the GOP's objectives? Despite repeated (and costly) hearings on Benghazi, Fast and Furious, the IRS and the VA, the GOP has come up with nothing against the president. Knowing that once a new president is elected, previous president's executive actions may be overturned and that Obama has a mere two years left in office, what really gives?
What really gives is the GOP recognizes that it may be decades before they win the White House, so why not make efforts now to limit the powers of the Executive, knowing many more Democrats will posses this authority in the future? Is this really a Constitutional move or purely a political one? Which gets to the "justiciability" issue. In general, Courts are reluctant to accept cases questioning executive actions when there are remedies available elsewhere. By accepting any of the GOP-planned lawsuits, the Courts will have "dipped their toes" into the pool of politics - a role not availed to them under Article III of the Constitution. Ironically, the GOP has a long history of Anti-Judicial rhetoric - demanding judges refrain from activist roles that may interfere with the roles of Congress. Why? Because the GOP has long maintained an ideology that judges are not elected and therefore should not be "making law" through their decisions. To ignore this long standing line of reasoning because they cannot win under the existing rules outlined in the Constitution is nothing short of hypocrisy. And this should surprise no one. Once again, if the GOP actually believed its own candidates had a clear shot at winning the presidency, they would never attempt to limit his/her powers already outlined in the Constitution. And for the naysayers - Obama has done nothing more than what previous presidents have already done. King Andrew is now King Obama. More importantly, such actions will result in the further politicization of the judiciary, which favors no one except the existing political parties! History repeats itself and I'm willing to bet the GOP knows most Americans don't know our history or the Constitution.
As President Gerald Ford once wrote; "If Lincoln were alive today, he'd be rolling over in his grave." All we ask is that Congress engage in their work before shifting their problems to the Courts. If this is allowed to happen, then Congress may continue to act in a dysfunctional manner needing the Courts to bail them out when they cannot legislate. And that is not what the Framers had in mind and is not what the American public expects when they elect their members of Congress. If they cannot and will not perform the tasks they are elected to perform, then get rid of all of them and start over. Americans follow the rules of the game. We should expect no less from our leaders in Washington.