On Wednesday, after news broke of House Speaker John Boehner's plans to sue President Barack Obama over alleged misuse of executive authority, the Democratic Congressional Campaign Committee sent out an email appeal for money that read "Boehner Lawsuit (OUTRAGEOUS)" in the subject line.
Even though Obama press aide Josh Earnest said, "Frankly, it's a gear that I didn't know previously existed," the lawsuit is so outrageous an action that it was pioneered by congressional Democrats.
The truth is that Boehner has a case. Presidents - of both parties - have developed a number of techniques for getting around Congress, to the extent that the separation of powers has become seriously unbalanced. Ask Ted Kennedy.
In 1970, President Richard Nixon refused to carry out health care legislation passed by veto-proof majorities in Congress by claiming he had pocket vetoed it. However, Congress was not in adjournment when Nixon supposedly took the action; it was only in recess. Sen. Kennedy sued Nixon and argued the case in court himself, winning at both the district and circuit court levels.
Actually, Kennedy was late to this issue. Numerous other members of Congress were already in court trying to force Nixon to take note of Congress's role in policymaking, to halt the president from going further than Congress had allowed, to keep him from interfering with a law's intent, or to force him to implement or enforce various laws.
Rep. Parren Mitchell of Maryland led a dozen House members in going to court in 1971 to halt a war that had not been declared by Congress. Twenty-seven Congress members in both houses sued Nixon after he refused to expend highway funding appropriated by Congress for Missouri. Others sued to force enforcement of mine safety law.
Impounding of funds was particularly troubling. Nixon was able to stop programs approved by Congress without having to go through veto fights, accomplishing the same end as a veto by less politically risky means. The efforts by the Congress members in court led in 1974 to the enactment of the Budget and Impoundment Control Act, putting an end to impounding, and also spurred creation of the first budget committees.
The group's position was strengthened the next year when the U.S. Supreme Court ruled in Train v. City of New York that Nixon's claim that there is a difference between "sums authorized to be appropriated [and] sums that are required to be appropriated" is without merit. That case was part of an effort to force Nixon to enforce the new Clean Air Act, one title of the Federal Water Pollution Control Act.
Interestingly, years earlier in their 1960 presidential campaign, Nixon and John Kennedy had declared their positions on refusal, through impoundment, to carry out congressional action. Both of them opposed it while leaving themselves an out.
In stating his opposition to impounding, Nixon nevertheless asserted that only a president could determine what spending is "really" necessary: "[E]xecutive agencies must expend such appropriated funds as are really needed to implement these programs." Nixon also voiced the view he later used in court, that congressional funding is optional: "Appropriations, however, are only authorized; the Congress traditionally has not directed expenditures of funds."
Kennedy took a similar posture but advocated greater presidential consultation with Congress: "Under normal circumstance I would respect the judgment of Congress and carry out the program it had devised. However, if there were important reasons for impounding the funds, I would not hesitate to consult with the appropriate congressional leaders and, if the objections were sufficiently great, postpone the expenditure until it could receive additional consideration." He also argued for national emergency exceptions and cited instances involving Presidents Franklin Roosevelt, Truman and Eisenhower.
In the 1970s, when the Congress members were in court to try to enforce administration implementation of congressional legislation or policies, some conservative commentators noted that earlier presidents had done as Nixon did, drawing particular attention to Democratic presidents Kennedy and Johnson. Columnist Tom Wicker responded that there was a difference between Kennedy and Johnson's momentarily blocking funding and Nixon's efforts to interfere with or wholly block legitimately enacted federal programs.
Wicker: "More important, Kennedy and Johnson with rare exceptions impounded for some temporary administrative purpose, usually spending the money or much of it later; Nixon is openly impounding for long-range political as well as economic purposes, to the point that he has effectively abolished some congressionally mandated programs."
Thus, the issue Boehner argues has sometimes cut for his party and sometimes against, as it has for the Democrats, and both sides have maintained a relatively cynical flexibility against the day they might need it themselves.
Impounding is one tool that is no longer available to presidents who want to undercut the functioning of federal programs or policies or who want to go where Congress has not authorized them to go. So presidents have turned to other techniques.
President Ronald Reagan, for instance, used appointments of figures who were opposed to the missions of the agencies they headed, with the result that those agencies functioned less than fully or effectively. Reagan Energy Secretary James Edwards opposed the very existence of his cabinet department. Education Secretary Terrell Bell found to his regret that he could not even come close to the votes he needed in Congress to abolish his department. Interior secretary James Watt did his best to slow his department's work down to a crawl. The same pattern prevailed at subcabinet and lower agency levels.
Speaker Boehner has not yet been specific about what actions by the president to block congressional policy or legislation he has in mind. In 2011, when the administration halted its court defense of the federal law opposing marriage equality, Boehner led the House effort to defend the law that ended in the Supreme Court overturning it.
As in the case of Parren Mitchell's lawsuit, Boehner could seek to overturn Obama decisions that went further than Congress allowed, as when the president increased the minimum wage for federal contract workers and permitted the Environmental Protection Agency to cut carbon emissions without congressional action.
There is also a situation in Nevada, in which the president has brought the proposed dump for high level nuclear wastes at Yucca Mountain in Nye County, Nevada, to an effective halt. Obama has successfully zeroed out the budget for the project and appointed anti-Yucca regulators, and Senate Majority Leader Harry Reid has kept any measures that might facilitate the dump from coming to votes.
Granted, this is not an ideal example for Boehner. The "scientific" suitability process by which Nye County was selected was irredeemably tainted and political. Nevertheless, Congress has stood behind these maneuverings. The Nuclear Waste Policy Act, which targeted Nevada without waiting for scientific study, remains in force.
If presidents can ignore lawful acts of Congress, it raises some pretty fundamental questions. Certainly it is telling that, instead of debating the merits of Boehner's case, the Democrats have been attacking his apparent plan for the House to go to court, paying for the suit with tax dollars. If Boehner's concerns are so outrageous and Obama has a case to make against them, why aren't Democrats making it head-on?
Dennis Myers is news editor of the Reno News & Review and a former chief deputy secretary of state of Nevada.