Who Would Be President?

In last week’s blog, I wrote about calls for the impeachment of President Obama, led by Sarah Palin and a few Congressional right wing Republicans. House Speaker John Boehner, when asked to respond to the initiative, replied briefly, "I disagree." But Mr Boehner added some spice: "Who needs impeachment? I'm suing the guy!" The Speaker has signalled his intention to sue the President over the latter’s use of Executive Orders. Frankly, there is sufficient material in this paragraph for a doctoral thesis. Impeachment, suing a sitting president and use of Executive Orders would all be fitting topics.

The Speaker is not a fan of impeaching Obama because he knows it is bad politics in an election year. True, he invites a backlash from the conservative wing of his Party who think the GOP establishment in DC is too soft on the President. These conservatives believe impeachment is the real play; they regard suing Obama as a half-measure. But how can they accuse Boehner of being soft on the President if he brings a lawsuit? Whatever chance that lawsuit has of success, it is an interesting tactic, should the calls for impeachment get out of hand.

Suing Obama might be very popular with that element of the American people who have no time for the President. Boehner would ask the courts to decide whether the chief executive has taken matters too far with executive actions. The U.S. Supreme Court has already weighed in on a similar issue — Mr Obama's recess appointments — and ruled for Boehner's position. That helps the latter’s strategy. In addition, the right wing elements of the media suggest the American people are inherently suspicious of excessive executive power. I am not aware of recent polls exactly on this topic but a CNN/Opinion Research poll in January 2014 showed by a 67%/30% margin that Americans preferred a bipartisan compromise in Congress rather than the executive acting alone. One wonders whether those who took part understand the meaning of Congressional gridlock.

The rules concerning Executive Orders may require explanation. An EO is a weapon in a president’s arsenal to help officers and agencies of the executive branch manage the operations within the federal government. EOs have the full force of law when they take authority from a power granted directly to the executive branch under the Constitution. Also, they may be made through Acts of Congress that explicitly delegate to the President a degree of discretionary power. EOs are subject to judicial review and may be struck down if deemed by the courts to be unsupported by statute or the Constitution. Furthermore, EOs are subject to Congressional review and oversight.

There is neither constitutional provision nor statute that explicitly permits Executive Orders. The term "executive power" in Article II of the Constitution, relates to the chief executive. The President is instructed to "take Care that the Laws be faithfully executed", else he faces impeachment. These Constitutional provisions are the basis of authority for justification of EOs as part of the President's sworn duties. 

Has the President abused his powers? Has he used EOs to circumvent a hostile Congress? Until the particular EOs are specified in a lawsuit, comment would be fruitless. However, the Republicans have charged that Mr. Obama has made excessive use of this power. Looking at post-World War Two presidents, the evidence points the other way. According to American Presidency Project data, the average number of EOs per year signed by Mr. Obama’s predecessors is as follows:

Jimmy Carter:                          80.00

JFK:                                        74.40

Gerald Ford:                           68.92

LBJ:                                        62.90

Richard Nixon:                       62.30

Ronald Reagan:                      47.63

Bill Clinton:                            45.50

George Bush:                          41.50

George W. Bush:                    36.38.

Barack Obama:                       33.58

No doubt the Speaker will concentrate his lawsuit on the nature of Obama’s EOs, not their quantity. Undoubtedly, immigration policy will be examined, as the President has halted deportation of those who arrived in USA as minors, those who care for children and those who have no criminal record. Climate change has been the subject of EOs, as had gun control, which has been the target of 23 separate orders by Mr. Obama. 

As the evidence shows, other presidents have used the EO power more freely than Mr. Obama. Bill Clinton banned the import of all kinds of weapons, as did George Bush (41). Reagan gave the NSA the right to collect e-mail and internet data by executive order. He also used the power to ban federal workers from using drugs, both on and off duty.

I cannot remember a time when a sitting president has been the subject of so much pressure for doing his job. If the lawsuit against Mr. Obama proceeds, the case will undoubtedly reach the Supreme Court. The Supremes will be asked to decide whether the President has usurped and overreached his authority. Nixon brought his time of trial on himself. Clinton wasn’t fighting lawsuits and impeachment at the same time. (The lawsuits were deferred until Clinton’s presidency was over.) Why does the current President invite so much vitriol? 

Just in case you thought that all Mr. Obama’s difficulties stemmed from right wing Republicans, he also has to cope with attacks from within his own Party. For example, Senator Mark Bergich, the Democratic junior Senator from Alaska, says he will be a thorn in the President’s side. Why would a Democrat want to create trouble? In a word, politics. Bergich is a Senator in a red state and his only mileage with the Alaskan voters is to distance himself from the President in the most unpleasant way. 

With all the domestic pressures of office, not to mention the problems in Palestine which have dropped into his lap, together with the rest of the Middle East issues, is it any wonder that Mr. Obama wants to get away from DC? He describes himself as a caged bear. Partisan gridlock and the pressures of public life have got to him.

However, the President is not shy about taking pot shots at his political opponents. “I don’t have to run for office any more so I can just let it rip,” he has declared. I can only think that some of the hatred shown to Mr. Obama by his political opponents arises not so much from politics and power but from the color of the President’s skin. If so, no wonder he recently gets so testy. Hopefully, he will regain his equilibrium while giving the Speaker the political finger!