Obama may be playing into Republicans’ hands by claiming unilateral authority to act on immigration crisis

Last week, the House of Representatives voted 225-201 to authorize a lawsuit against President Obama. Somewhat oddly, the resolution only authorizes litigation “with respect to implementation of any provision of the Patient Protection and Affordable Care Act, title I or subtitle B of title II of the Health Care and Education Reconciliation Act of 2010.” Republicans have criticized Obama on a number of domestic actions, including in the context of immigration, welfare reform, energy and education. But “the lawsuit [will be] pegged to one particular action by the president: his implementing a delay in the employer mandate provision of the Affordable Care Act,” as The Washington Post‘s Philip Bump notes.

From a legal perspective, this is unlikely to make a difference: it is hard to see how Congress can make out a case against the president in any of these domestic areas, and narrowing legal action to the ACA alone is unlikely to help (in fact, if I were a lawyer charged with filing this lawsuit, I might worry about the danger of being sanctioned for bringing a baseless action).

{mosads}From a political perspective, however, there may be a reason to focus the lawsuit on the Affordable Care Act (ACA). As Bump explains, Speaker John Boehner (R-Ohio) and other Republican leaders in the House are calling on Obama to act alone to address the immigration crisis, declaring that: “there are numerous steps the president can and should be taking right now, without the need for congressional action, to secure our borders and ensure these children are returned swiftly and safely to their countries.”

This may seem hopelessly inconsistent. How can the Republicans call for Obama to act unilaterally on immigration even as they prepare to sue him for executive overreach on health care? Actually, it may be perfectly reasonable to take the position that unilateral presidential action is sometimes legitimate and sometimes not. The president is not merely Congress’s servant. Carrying out the law means exercising discretion and setting priorities, though of course there are limits. The president cannot simply refuse to enforce the law (though that is not what he is doing with regard to the ACA, and even if it were, it is not clear that a judicial remedy would be available). Perhaps the Speaker is acknowledging this reality.

It’s also possible, of course, that Boehner is trying to bait Obama into a no-win situation: If the president fails to act, then it is his fault for failing to resolve the immigration crisis, but if the president does act, he can be accused (again) of overstepping his bounds.

Obama might find a way out by publicly explaining that, when the president acts, the real question is not whether such action is unilateral, but whether it is justified by constitutional or statutory authority. This would be useful, as it would help to make clear that some unilateral presidential actions are legitimate (e.g. with regard to the ACA and deferred deportations for “Dreamers”), while other actions are not — for example, when the president acts unilaterally to order the use of military force in a non-emergency situation. If Obama does in fact take further unilateral action on immigration, this would offer him a defense against charges of overreaching.

Unfortunately, Obama seems to be taking the bait Boehner gave him. Obama has suggested that he can act unilaterally simply because Congress has failed to act. But Congress’s failure to act cannot, by itself, justify unilateral presidential action. The president can only act if he can cite constitutional or statutory justification. In the context of the immigration crisis, it may well be possible to find such authority (depending in part on precisely what action the president takes). However, President Obama would be on sounder ground if, instead of speaking in terms that pits him against Congress, he explained why the law permits him to take unilateral action.

Edelson is an assistant professor of government in American University’s School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.