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The Declaration of Impotence

On June 25, 2014, the Speaker sent a memorandum to all Members of the House entitled “[T]hat the Laws Be Faithfully Executed. . .” This extraordinary document begins as follows: “For years Americans have watched with concern as President Barack Obama has declined to faithfully execute the laws of our country—ignoring some statutes completely, selectively enforcing others, and at times, creating laws of his own.”

The memo goes on to say that on a wide range of matters, including health care, energy, foreign policy and education, “President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce—at times even boasting about his willingness to do it, as if daring the American people to stop him.”

So what will the People’s House do in response to these repeated injuries and usurpations? The Speaker declares:

I intend to bring to the floor in July legislation that would authorize the House of Representatives—through the House General Counsel and at the direction of the Bipartisan Legal Advisory Group (BLAG)—to file suit in the coming weeks in an effort to compel the president to follow his oath of office and faithfully execute the laws of our country. The legislation would follow regular order and be considered by the Rules Committee following its introduction prior to consideration by the full House.

Wow. It’s like the Declaration of Independence ended with a solemn promise to retain counsel and consider all available legal remedies against George III, including seeking a declaratory judgment against continued collection of that tea tax. (Well, I guess U.S. v. Hanover couldn’t have gone much worse than U.S. v. Windsor).

Now mind you the Speaker is not, as has been widely reported, saying that he will bring suit against the president immediately. Or even in the “coming weeks.” Instead, sometime in July he will introduce legislation, which will go through “regular order” and eventually be considered by the full House.

Only in the “coming weeks” after this legislation is adopted, whenever that may be, will the House be “authorized” to bring suit against the president. And note it is unclear whether by “legislation” the Speaker means a House resolution or a bill. If he means the latter (which is the more common use of the term), the “coming weeks” will be coming in 2017 at the earliest (after the election of a new president who might sign such a bill).

Even if the promised lawsuit were to be filed, however, its chances of success are basically zero. I will explain one reason why in my next post.

In fairness, the Speaker has identified an important problem for which an effective solution will not be easily found. But I am pretty sure this lawsuit is not it.

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