It looks like the Constitution is going to be bent again, adding to a growing trend to use its broad principles to achieve narrow results.
This time, the Republicans in the House of Representatives have decided to sue President Obama for allegedly having exceeded his authorized powers as chief executive.
They claim that he is applying laws passed by Congress in violation of their own provisions. They want a federal court to decide they are right and order him to pull back.
The Constitution requires a separation of powers among the executive branch headed by the president, the Congress and the courts. The lawsuit would ask a court to settle a dispute over the powers of the other two branches. Courts usually stay away from such disputes, and that’s likely to happen now.
Besides, who pays for the lawsuit? Isn’t all money spent by the federal government supposed to be covered by a bill passed by Congress and signed by the president?
So why is the House, after a narrow majority vote, suing the president?
The short answer is it’s just politics, an attempt to embarrass Obama and weaken the Democrats in an election year.
The long answer is the GOP has frustrated Obama, who has used executive power to do what he thought necessary, when Congress refused to deal with major issues. In this action, he followed American political tradition.
While the Constitution was meant to ensure the president would not gain excessive power, presidents since Washington have pushed at the limits of their authority. Because no law can cover every situation, presidents have assumed they could impose their own interpretations or fill in the gaps and issued executive orders.
Presidents have also asserted their power by using so-called signing statements. The president signs a bill but, at the same time, but says he will not enforce those parts of it he considers unconstitutional.
In fact, Obama has issued fewer executive orders and signing statements than his predecessors.
While the president uses his executive power to take actions that might look legislative, Congress sticks its nose under the presidential tent. It passes bills trying to direct foreign policy and limiting clear presidential powers. And it can deny funding to activities it does not like.
The reason why this situation is allowed to continue is the recognition the roles could easily be reversed. So a party does not complain too loudly if it believes it might similarly want to poach across the separation of powers sometime later.
The conflict between the exercise of executive and legislative power is almost inevitable because of the American system of government. The elections of the president and Congress are completely separate, creating the opportunity for political warfare.
Under the parliamentary system, the head of the government is a member of the legislative body. For example, the prime minister of Canada is a member of parliament. He heads the government, because his party controls the parliament.
If a government under a parliamentary system loses a so-called “vote of confidence,” the prime minister must step down.
In the American system, even when Congress is controlled by the opposition party, it cannot force the president out of office on political grounds. He or she can only be removed by electoral defeat or conviction after impeachment for “high crimes and misdemeanors.”
It is generally agreed that the two presidents who were impeached but not convicted – Andrew Johnson and Bill Clinton – faced the equivalent of a vote of confidence. In short, they overcame an attempt to graft parliamentary rule onto the American system.
The House GOP understands that it could not remove Obama and it might be discredited if it devoted several months to drawing up and voting on articles of impeachment. A lawsuit might accomplish the same result as impeachment by embarrassing Obama.
Some Democrats, believing talk of impeachment would backfire on the GOP, have charged the Republicans really plan to bring the president to trial.
Add to these latest actions the abusive use of the filibuster, holding phony Senate sessions to block presidential appointments, and the failure to reconcile differing Senate and House bills, and the Constitution is increasingly used to block virtually any bills, no matter how badly needed.
If Congress is controlled by the Republicans over the next two years with a Democrat in the White House, the country faces a period of either total stalemate or forced compromise.
What’s a voter, caught in the middle, to do? We need to ask each candidate which course he or she will favor if elected.