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Advice to Boehner – instead of suing Obama, use the power of the purse

Yesterday in an Op-Ed, Speaker Boehner confirmed that he planned to submit legislation to the House to sue the President over ObamaCare. He states that President Obama, “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.”

Boehner has some problems to overcome. He must submit legislation to the House for a vote and the vote will probably go along party lines. It is likely not all Republicans will vote “YEA.” If the legislation passes, it is likely that the lawsuit will be thrown out because the U.S. House has no standing. To have standing the plaintiff must have damages. Similar House-sponsored lawsuits have been thrown out in the past because of the “standing” issue.

If suing the President is a good idea, it would be better for businesses to bring the suit. Even better would be for a State to bring the suit, for according to the Constitution, it should go directly to the Supreme Court, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction” (U.S. Constitution – Article III. Section 2, Clause 2). This would save time, as the House suit will probably go to an Appellate Court.

If on the slim chance the suit is successful, who will execute the verdict? Well, of course, it would be President Obama. It is unlikely he would enforce such a ruling. He would likely say that the Courts could not infringe on his executive powers. Also, it is likely that if the suit is not thrown out, the verdict will be moot because it will probably take years to get the verdict. By then, the problems will be resolved or a new President will have rescinded Obama’s executive orders or made new ones.

The columnist Thomas Sowell says, “Either the lawsuit or an impeachment — or both — can hurt the Republicans, by making it look like they are playing Mickey Mouse politics during an election year.” Speaker Boehner should abandon this hopeless cause and go where the real power of Congress resides: The Power of the Purse.

Article I, Section 7, Clause 2 begins, “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.” This is the power of the purse. For any money to be spent, the House must pass it. Even though Congress in the past authorized ObamaCare or other programs like the EPA, FDA, NSA, etc., Congress can refuse to fund them.

The problem is that Congress passes its spending bills as an all or nothing proposition. The last one was the Consolidated Appropriations Act, 2014. Last year, the House sent a spending bill to the Senate that did not fund ObamaCare. The Senate amended this to include ObamaCare. Senator Cruz filibustered against it to no avail. The all or nothing spending bill puts the choice between funding the government, or shutting it down.

These all or nothing omnibus bills destroy the power of the purse. They elevate the pork spending of the special interest groups, which is partially responsible for our deficit spending. It does not have to be this way. Congress could and should change its rules back to funding the government on the merits of the various spending measures. Each year, the funding of ObamaCare and other federal programs should have an up or down vote. This is the job our Representatives and Senators should be doing.

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