The Boehner Manifesto: How To Do Nothing And Look Constitutional?

By Mark Esposito, Weekend Contributor

The Antagonists
The Antagonists

I think it was Winston Churchill who reminded us that the “supreme virtue” of government is action. In fact, the greatest of  modern British prime ministers, who often marked his staff memoranda in red with the words “Action This Day,” counseled that ” I never worry about action, but only inaction.” Action in recognizing problems. Action in mobilizing support and action in addressing the causes of human suffering and improving the lives of those over whom you have power and authority.

On this side of the Atlantic, the framers understood this seemingly obvious facet of government. Jefferson wrote, “The purpose of government is to maintain a society which secures to every member the inherent and inalienable rights of man, and promotes the safety and happiness of its people.” Protecting individual  rights and promoting the security and happiness of those individuals is the essential business of government. Not “either-or” but both.

“We the People” were formed into a  “more perfect Union” for some precise purposes: “to establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” That’s not a request; that’s a duty. One from which all those sub-duties known as the laws of the Constitution flow. And those duties — all of them — flow directly down from the People to their servants in the three branches.

The founders, of course, knew there would be tension any time power is divided and they relied on the good will of  the people along with an iconic government structure to keep those powers from being usurped by the other branches. Professor Turley has written eloquently about what he perceives is the erosion of the protections of the separation of powers doctrine in favor of an imperial presidency. He notes the abundance of recess appointments under recent administrations and the mushrooming of executive orders as proof of a presidential power grab which he feels can be remedied by a renewed assertion of rights by Congress and the courts. Recent decisions of the SCOTUS, he claims, support this position though one wonders how these, in themselves, are not proof of the doctrine working precisely as ordered.

While he full well explains the steps to remedying the current state of affairs, he erroneously, in my judgment, omits the implied duty that runs throughout the separation of powers doctrine — the concomitant duty of those branches even as they assert their prerogatives to do something with that power. It is not enough to simply re-establish the balance of power. That power has to be exercised in furtherance of agreed-to national goals. A perfectly balanced system that accomplishes nothing is every bit as much a failed government as one that coerces its people. And a reestablishment of a pristine version of separation of powers is as short-lived as the mayfly if the power vacuum caused by inaction remains. It is as sure a historical axiom as we have, that power will always expand to fill a vacuum.  That is precisely what we have today even as Congress, led by Speaker John Boehner seeks to sue the President of the United States to rein in what he considers to be an administration run amok doing things.

And what prompted Boehner’s wrath? Well, the President frustrated by the Congress’ obstinacy to do anything but tease on immigration reform for purely political reasons has vowed to do all he can by executive order to address this critical problem most recently manifested by thousands of vulnerable kids fleeing war and poverty and streaming across the US-Mexican border.

Boehner has written an opinion piece for CNN explaining the reasons for his decision to seek legislation authorizing the right to sue the President. After reminding us that everyone in government swears an oath to that featured document encased in glass at the National Archives, Boehner explains:

But too often over the past five years, the President has circumvented the American people and their elected representatives through executive action, changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold — at times even boasting about his willingness to do it, as if daring the American people to stop him.

Daring the American people to stop him? We had that chance twice – as recently as 2012. Obama won the popular vote then by 5  million voters and the electoral college vote by 126. Was the problem paramount in the public’s collective mind to be solved by the election an administration on the loose or a society desperately seeking one person who would do something about the problems that beset them? Problems which, by the way, most fair minded folks would agree did not derive with the current occupant of 1600 Pennsylvania Avenue.

It’s a time-tested feature of the American Presidency that holders of the office are judged by what they do for people and not how they do it. Lincoln is remembered in the consciousness of the public  for ending the Civil War not suspending habeas corpus. FDR is lionized for the New Deal and his leadership against fascism not the court-packing plan. And even ol’ unpopular ‘W” himself has received a popularity renaissance of sorts for his efforts to combat terrorism with hardly a mention of the dubious methods he employed. Why would the public in the last two elections be looking for anything different?  Give us someone who can bring about positive change in Washington and the society it oversees was the order from the populace.

Perhaps the country felt that way because the Congress they sent off to Washington time after time has totally abdicated its responsibilities to govern or even make the pretense of governing. It’s as if that Republican dominated or stymied body has taken Grover Norquist’s pledge to heart — with an added bonus: No new taxes, of course, and we’ll reduce the size of government so we really can just strangle it in the bathroom. Need some proof? Let’s take a history lesson.

In 1948, Harry Truman derided the 80th Congress the “Do-Nothing Congress.” Dominated by Republicans, the body was pro-business, anti-Fair Deal, and determined to do nothing that would aid the Democratic Party. It passed just 906 public laws even as the nation was coming out from under the burden of a world war and had to deal with the returning veterans and a threat from the Soviet Union. The public took their wrath out in the election of 1948 and sent 82 Republican lawmakers home.

Fast forward to today and the explosion of problems never even envisioned by the 80th Congress like immigration reform and the terrorist threat. How has the body partially overseen by public servant and sworn constitutionalist John Boehner done in recognizing and addressing the nation’s many problems?  USA Today answers the question in an op/ed:

Having enacted 104 laws since early 2013, the 113th Congress is on track to break the previous record low of 283, set in 2011-12 by the 112th Congress. And with last fall’s pointless government shutdown, the current Congress reached a level of dysfunction that the 112th never attained.

To call the 113th Congress bad is like calling water wet. It is harming the economy in the short term while running from serious long-term problems. Appropriately, its approval ratings are stuck in the teens, with occasion dips into single digits.


283 is a far cry from 906 and the prospects look very good for a mid-term election that will bring us even less legislation and more bickering. Viva la separation of powers and its modern-day cousin, gridlock!

The historic problem is what do you do when you’re facing very real international and domestic problems with an indispensable partner who fails –and even refuses –to act? For example, how do you address the problems of thousands of unaccompanied and exploitable kids crossing the border? If you’re Congress, you do nothing and blast someone who does. If you’re the President you push the buttons you have. Obama has vowed to ” [begin] a new effort to fix as much of our immigration system as I can on my own, without Congress.”  These measures would take the form of increased enforcement of the borders and extend to possibly “giving work permits and protection from deportation to millions of immigrants now in the country’, according to the New York Times. 

Boehner’s response was predictable and apoplectic, “In our conversation last week, I told the president what I have been telling him for months: the American people and their elected officials don’t trust him to enforce the law as written. Until that changes, it is going to be difficult to make progress on this issue… It is sad and disappointing that – faced with this challenge – President Obama won’t work with us, but is instead intent on going it alone with executive orders that can’t and won’t fix these problems. ”

Work with us?  In February, Boehner himself was privately trumpeting a landmark immigration bill that would address many of the problems both parties see as resolvable. That was in response to some very public polling showing Republicans being battered among Hispanic voters. But conservatives in his own party nixed the plan threatening to pull support for his speakership if he moved forward to introduce the legislation. The pretense for the reversal was Republican insistence that Obama precipitated the crisis by scaling back on deportation for younger undocumented aliens and that therefore he couldn’t be trusted to faithfully enforce the immigration laws. That doesn’t explain why Republicans backed off legislation that would address the problem and take effect after Obama’s term ends. As Senator Charles Schumer reiterated on the Senate floor, “If Republicans can’t agree to pass a bill that goes into effect after the president’s term, then we know that ‘mistrust of the president’ is nothing but a straw man.”

So Obama acts alone. Constitutional? We’ll see, but, the structural problem remains. Can the voters fix it? Maybe, they did in 1948, but the country was less polarized along ideological lines. A recipe for disaster?  Probably and one not likely to be fixed no matter how the conservative dominated Supreme Court rules. And action to address the nation’s woes? Well, that seems to be neither the concern of the court, nor the Congress, and, for well-articulated doctrinal reasons, perhaps not even the President’s. So who is charged with performing the duties of the Constitution? Perhaps it’s just us.

And what would Jefferson say about the nation he founded and its seeming inability to get out of its own way?  “Do you want to know who you are? Don’t ask. Act! Action will delineate and define you,”  comes the judgment from our third president. Which prompts me to ask: What, my dear Sage of Monticello, does our inaction say?

What do you think?

Source: CNN and throughout

~Mark Esposito, Weekend Contributor

By the way and for better or worse, the views expressed in this posting are the author’s alone and not necessarily those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays of art are solely the author’s decision and responsibility. No infringement of intellectual property rights is intended and will be remedied upon notice from the owner. Fair use is however asserted for such inclusions of quotes, excerpts, photos, art, and the like.

176 thoughts on “The Boehner Manifesto: How To Do Nothing And Look Constitutional?”

  1. Dohrn is a professor at Northwestern Law School and has been for quite some time. I still say that they are not relevant to a discussion about Boehner’s lawsuit.

  2. Saucy, I could only stomach watching part of the Ayers interview last week. He is a smug, a-hole w/ no redeeming qualities.

  3. swarthmoremom wrote “Bill Ayers was not a two term president of the United States … not really that relevant”

    Ayers and his wife, Bernardine Dohrn, were often one step away from killing large numbers of people. His girlfriend before Dohrn, Diana Oughton, was killed when the nail bomb planned to kill large numbers of soldiers and their wives/girlfriends at Fort Dix went off prematurely. After learning that the government would not prosecute him for the many bombings he and his terrorist buddies committed, Ayers declared, “Guilty as hell, free as a bird — America is a great country.”

    Ayers proudly noted that Dohrn was on the FBI’s 10 Most Wanted list. Dohrn applauded the savage Tate-LaBianca murders in l969.

    It is a travesty of justice that Ayers and Dohrn were not convicted of treason, sedition, and attempted mass murder, and sentenced to life behind bars.

  4. Ayers did a 2 part interview on Fox last week. It covered his criminal past as well as his relationship w/ Obama. So, he is very much on topic. I doubt SWM caught the good interview by Kelly on Fox. Kelly is on opposite Maddow, I think.

  5. How about we won’t bring up Ayers if you all drop President Bush?
    Jim22 Huh? Bill Ayers was not a two term president of the United States. Bring up Bill Ayers all you want but he is not really that relevant.

  6. Can’t believe Bill Ayers is still being discussed although he might like that since he is old and retired.

    1. SWM – Ayers wrote Obama’s book and was a major influence on his philosophy. Why should we not discuss him.

  7. Paul,

    Thanks for the info. Adjunct status can be a good or a bad thing. Some adjunct professors bring valuable real life experience into the classroom normally devoid of such things. Other adjunct professors spent their time telling war stories or spouting off their opinions and are close to useless.

  8. Ayres is a prof @ UIC. not U. of Chicago. I believe he and Obama got to know each other from living in the same neighborhood. Mr. Roger’s Neighborhood.

    1. SWM – Ayers and Obama connection is thru their connections with the same very leftist people.

  9. Paul & rafflaw,

    Unfortunately, one of the problems with the American education system, pre-K through post-grad, is that schools sometimes hire as teachers folks who do not have a clue about the subject they will be teaching. This is especially true when the hiree is a celebrity. It would be interesting to learn whether President Obama taught a regular, rigorous, required Constitutional Law class or, rather, occasionally taught some elective seminar where the students sat around and discussed their opinions about whatever it was that the Supreme Court was doing at the time.

    1. Vince – I think I remember reading that he taught Constitutional Law II. Not sure of the University of Chicago students are required to take one or two courses in Constitutional Law. I also remember that he was adjunct.

  10. I’m just curious, for all those who think that having a “do nothing” congress is bad, what laws do you feel are missing that haven’t already restricted us?

  11. “Do Nothing Congress”? You might consider redirecting your invective towards Harry Reid who has steadfastly refused to consider any of the scores of bills passed by the House for fear of putting Democrat senators on the spot and potentially undoing the havoc wreaked by the ACA, Dodd Frank and other legislative havoc foisted on the American people.

  12. I am as prone as the next person to point fingers. And I can lapse into partisan rants at the mere mention of Mitch McConnell. But looking about for someone to blame ignores the fact that the present impasse in government is now systemic.

    Legislative accomplishment is not a product of inspired ideas carried forward on soaring rhetoric. It is a product of personal relationships developed among leaders wielding real political power. At present we suffer from weak Congressional leadership and a President who is aloof and increasingly withdrawn.

    The President has not forged strong relationships with any opposition members of the House or the Senate. John Boehner is unable to control his own caucus and worries about maintaining his position as Speaker. Eric Cantor couldn’t even hold on to his own seat. Harry Reid is mainly sound and fury. Nancy Pelosi stands for nothing. And Mitch McConnell reminds me of someone auditioning for the lead in “Howdy Doody-The Twilight Years.” (I warned you, didn’t I?)

    The ascent of the Tea Party has only fortified the impasse because a refusal to compromise is a refusal to govern.

    Mr. Boehner’s lawsuit threats are a cover for legislative impotence. It is quite clear that Congress intends to do nothing between now and 2016 and the President is being left to his own devices. But the truth is that Congress, Democrats and Republicans alike, created the executive monster that everyone now decries.

    I don’t know the answer, but I don’t expect to see one coming from either of the major parties. Personally, I’m ready for a new Robert La Follette.

  13. Action must be taken by the executive branch. The legislative branch prescribes the direction.

    The ineligible president has failed to uphold and enforce the law. He doesn’t need any new laws.

    The border is to be upheld and illegal aliens are to be deported.
    Asylum seekers have cases without merit greater than those of many citizens of the U.S. Preposterous claims for asylum must be denied and the applicants deported.

    Foreign citizens are not the burden of American taxpayer.

    A moratorium should be placed on immigration.

    The “blessings of liberty” to OURSELVES and OUR POSTERITY.

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