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U.S. House Speaker John Boehner (R-OH) calls on a reporter during a news conference after a Republican House caucus meeting on Capitol Hill in Washington April 29, 2014. REUTERS/Jonathan Ernst    (UNITED STATES - Tags: POLITICS) - RTR3N3OH U.S. House Speaker John Boehner (R-OH) calls on a reporter during a news conference after a Republican House caucus meeting on Capitol Hill in Washington April 29, 2014. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS) - RTR3N3OH  

Is John Boehner’s Lawsuit The Best Way To Rein In The Executive Branch?

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Ryan Young
Fellow, Competitive Enterprise Institute
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      Ryan Young

      Ryan Young is the 2009-2010 Warren Brookes Journalism Fellow at the Competitive Enterprise Institute. His writings communicate ideas from economics and classical liberal political theory in layman’s terms. His articles apply the economic way of thinking to issues from airplane baggage restrictions to fiscal stimulus to salary caps in baseball. He has been published in Politico, Investor’s Business Daily, Real Clear Markets, and other outlets. He also writes the popular “Regulation of the Day” feature for Open Market, CEI’s staff blog.

      Ryan holds an M.A. in economics from George Mason University in Fairfax, Virginia, and a B.A. in history from Lawrence University in Appleton, Wisconsin. He was previously Fellow in Regulatory Studies at CEI, and worked in the Cato Institute’s government affairs department.

On Wednesday, House Speaker John Boehner announced plans to sue the White House for breaching the Constitution’s separation of powers. “On one matter after another during his presidency, President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce,” Boehner wrote in a memo to House members.

It’s not often I say this, but Boehner has a point, even if his proposed remedy is a longshot. But it’s not just Obama, and it’ll take much more than a lawsuit to address.

If there has been one political constant over the last century, it is the growth of federal executive power. Previous administrations weren’t exactly political wallflowers, but the Obama administration’s series of power grabs have raised the bar for executive overreach beyond all precedent. Last year, Congress passed 65 bills, while executive branch agencies issued 3,659 new regulations. The difference is a factor of 56, a record high. My CEI colleague Wayne Crews calls this ratio the Unconstitutionality Index.

Article I, Section 1 of the Constitution states, “All legislative powers herein granted shall be vested in a Congress,” not the executive. But no matter. The Obama administration has decided to regulate unilaterally in areas where Congress has explicitly rejected legislation, on issues from carbon emissions to net neutrality. President Obama’s promise to use his “pen and phone” describes this effort pefectly.

We clearly have a separation of powers problem. But is Boehner’s proposed lawsuit the solution? Unlikely. Politico notes that “It’s possible that if the lawsuit goes forward, it could take longer to work through the court than the roughly two-and-a-half years Obama will remain in office.”

But suppose the lawsuit succeeds. It still wouldn’t solve the fundamental problem driving the growth of executive power. As Cato Institute presidential scholar Gene Healy put it, “If the Obama presidency has driven Americans mad, perhaps that’s because we’ve embraced a demented notion of the presidency itself,” one Healy describes as some mixture of Superman, Santa Claus, and Dr. Phil. When it comes to the presidency, we have met the enemy, and it is us.

When George W. Bush promised, without irony, to “rid the world of evil,” people believed him. With his post-9/11 approval ratings reaching the upper 80-percent range, Congress granted Bush expanded powers through the USA PATRIOT Act and other measures. The result was not the end of evil; it was the TSA, warrantless NSA surveillance, and host of other civil liberties abuses.

After public opinion soured on Bush, Americans eagerly embraced Barack Obama’s exhortation that “this was the moment when the rise of the oceans began to slow and our planet began to heal.”Predictably, Obama was unable to succeed where Bush failed, and the process is repeating itself. Hence Boehner’s lawsuit.

Boehner’s lawsuit is the equivalent of treating a broken bone with painkillers. Even if it provides some symptomatic relief, just as a painkiller does nothing to actually heal the bone, a court case would do nothing to curb the public’s unrealistic view of the presidency. In a democracy, the voters get what they want in the long run. If the public wants presidents who promise them the sun, the moon, and the stars, those are precisely the people who will continue to win elections — even though they will never be able to deliver those promises. What America needs to truly restore the separation of powers isn’t a court case. It is a humbler view of the presidency coupled with a healthy dose of skepticism towards all branches of government.

Ryan Young is a Fellow at the Competitive Enterprise Institute.