Republicans at least say they see President Obama’s executive actions as unconstitutional, prompting chatter about shutdown, impeachment, dysfunction, and perhaps even politically motivated violence.
But as a rule, it’s not up to lawmakers and governors to decide which actions are permissible under the Constitution. We have a whole separate branch of government established for just this purpose. Perhaps Republicans can avail themselves of the judiciary?
Well, maybe. Here’s Texas Gov. Rick Perry (R) yesterday:
Republican governors on Wednesday tore into President Barack Obama’s plan to issue an executive order extending new legal protections to millions of undocumented immigrants, with Texas Gov. Rick Perry saying there’s “probably a very real possibility” that the state of Texas will sue the federal government over it.
And Wisconsin Gov. Scott Walker (R), yesterday:
Several governors threatened legal action to block the measure. “I would go to the courts,” said Gov. Scott Walker of Wisconsin. “This is illegal.”
And Sen. Rand Paul (R-Ky.), yesterday:
“We should take him to court,” Paul told reporters on Capitol Hill. “Truman was taken to court in Youngstown Steel, and I think we should take him to court.”
And House Speaker John Boehner (R-Ohio), last week:
House Speaker John A. Boehner (R-Ohio) is considering expanding a proposed federal lawsuit over President Obama’s executive orders to include action on immigration. Filing a separate lawsuit over the president’s authority to protect millions of undocumented immigrants from deportation is another option that gained traction Thursday during talks among party leaders.
And what’s wrong with this? Actually, nothing.
Look, I’m not an attorney and I can’t speak with authority to what federal courts might to do with litigation like this. Given the available evidence, it seems the Republicans’ case would be quite weak, and the Supreme Court has already suggested actions like Obama’s are permissible, but if GOP policymakers want to roll the dice and see if a friendly judge or two might be willing to smack down the White House, that’s between them and their lawyers. The judiciary does funny things sometimes; maybe Republicans will get lucky.
The point, however, is that turning to the courts for a remedy is at least a legitimate approach under our system. The president is poised to announce a policy, the opposition party believes that policy is at odds with the law, so they can all head to the courts for a resolution. Members of Congress may struggle to establish standing in the case, but time will tell. Maybe the governors would be in a better position.
What Republicans shouldn’t do is bend the system to their will, shutting down the government, pursuing impeachment, and raising the prospect of civil unrest, all because they’re disgusted by the Democratic president. A lawsuit would probably fail, but it would have far more validity than the tantrum alternatives.
In other words, it’s what grown-ups do when they’re concerned about the constitutionality of a public policy.