The President’s executive order designed to contravene current immigration law – coming as it does on the heels of almost six years of “Gruber-istic” executive branch arrogance and overreach — presents an immediate challenge to the newly re-minted Republican leaders in Congress.
Not only must they decide how to respond to this latest affront to the Constitutional order, but also it is time for them to demonstrate to the country that the Nation’s opposition party now coming into control in Congress is capable of more than just another ignominious retreat into what has become a debilitating business-as-usual in Washington.
This means that bold out-of-the-box thinking and new creative communications strategies ought to be seriously considered.
The early signs are not promising because the various proposed responses of most serious substance and consequence are now serially being ruled out — one by one. Impeachment — while fully justified on Constitutional grounds — of course is out, because a 67-vote conviction in the 56-44 Senate is judged politically impossible, and thus any fight about it is judged to be not worth having.
Cutting off or withholding appropriated funding — in either a targeted or a general way — is also out for all practical purposes largely because veto override votes of two-thirds in both the House and the Senate are also judged to be politically impossible. In addition, pressing such a funding fight in a way that forces the President to either accept Congress’ terms or else be responsible for “shutting down” federal agencies or programs is also out because too many Republicans –whether rightly or wrongly — have internalized the “been there, done that” lessons they believe have been learned from similar past attempts to legislatively adjudicate budgetary disagreements.
Blocking judicial and other executive branch appointments through a virtual shut-down of the Senate’s confirmation process, has also be proposed, but has so far gained little apparent support.
Thus if it is finally concluded in top Republican circles that responses of serious substance are not going to be pursued seriously, then maybe it is time to consider a response of serious symbolism instead. Such a symbolic response as proposed here below would not block or reverse the President’s unlawful actions or prevent future ones. But if handled right, it could provide a creative means to communicate to the country that what the President has done – and is doing – is outside the bounds of what Congressional leaders consider to be acceptable in a government that is supposed to be ordered by meaningful Constitutional checks and balances.
Here is a modest proposal:
The Speaker of the House should declare a state of Constitutional emergency in which the President’s specific unlawful actions — and the Speaker can list a long train of abuses and usurpations — have cumulatively provoked the legislative branch into a bold but measured legislative response. That response will be to cancel — for 2015 — the traditional end-of-January joint session of Congress to which the President is normally invited to deliver his annual State of the Union Address.
The Speaker can explain that the President has no inherent right to that forum for that speech. It is instead a privilege that the Congress — since the presidency of Woodrow Wilson — has normally accorded to the President. But it is one that can also be withhold at Congress’ discretion, especially in “abnormal” circumstances.
The Speaker can further explain that this president’s recent actions and demeanor in contempt of that Constitutional order — whereby the legislature makes the laws and the executive “faithfully” executes them — constitutes such abnormal circumstances in which the Joint Session privilege for this particular speech at this particular time is unwarranted. Thus, for this one event of high symbolism for the federal government, there will be no more “business-as-usual.”
It should be remembered how in recent past State of the Union addresses and in other speeches, this president has deliberately misinformed the country about his signature health care law and other matters, how he insulted the Supreme Court (with Justices dutifully in attendance) by incorrectly describing one of its decisions, and how he is now running around suggesting that Congress’ refusal to act in accord with his wishes is ample justification for his “pen-and-phone” unilateral edicts.
Let the President deliver his State of the Union speech this time directly from the Oval Office, or for that matter, from a completely-filled Yankee Stadium, if that’s what he prefers. All the networks will be there to cover it.
But spare the Republicans in Congress —and by extension like-minded citizens throughout the country — from being party to what we can only imagine this time will be a most Constitutionally-unseemly spectacle.
Gary Hoitsma is managing associate at Carmen Group Inc., a Washington-based government affairs firm, and a former aide to U.S. Sen. James M. Inhofe, Oklahoma Republican.
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