Roll Call reports that House Speaker John Boehner (R., OH) will respond to this challenge to our constitutional framework by … wait for it … filing a lawsuit. The apparent aim of this theater is to persuade a judge to pronounce what is already patent: the president is flouting congressional statutes.
Speaker Boehner’s proposed suit is nearly as wayward as President Obama’s violation of his solemn oath to execute the laws faithfully. Under our system, in order to avoid having major public policy questions decided by the governmental branch that is not politically accountable to voters, the judiciary is limited to resolving concrete controversies — cases in which the party bringing the suit has actually been injured by a violation of law. Courts are thus prohibited from issuing advisory opinions: pronouncements that some course of conduct is or would be illegal.
Yet, that appears to be exactly what the speaker will ask them to do. Indeed Boehner’s spokesman, Michael Steel, reminded Roll Call that the House has already passed a bill that would expedite court consideration of House resolutions enabling lawsuits that challenge executive overreach. “The House has passed legislation to address this, but it has gone nowhere in the Democratic-controlled Senate,” Mr. Steel explained, “so we are examining other options.”
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