The White House has fueled talk that House Republicans might move to impeach President Obama if he uses executive authority to enact far-reaching changes in immigration policy. "The president acting on immigration reform will certainly up the likelihood that [Republicans] would contemplate impeachment at some point," top White House aide Dan Pfeiffer told reporters Friday at a breakfast sponsored by the Christian Science Monitor. "I would not discount that possibility."
White House spokesman Josh Earnest echoed Pfeiffer's remarks later Friday, and Democratic fundraisers seized on the topic to raise the specter of the GOP attempting to remove the president from office. In an effort to rouse the party base, the Democratic Congressional Campaign Committee sent out a series of "IMPEACHMENT RED ALERT" fundraising appeals over the weekend.
Some Republicans have obliged the talk. "From my standpoint, if the president [enacts more executive actions], we need to bring impeachment hearings immediately before the House of Representatives," Rep. Steve King told Breitbart News. On Fox News Sunday, Rep. Steve Scalise, the new House Majority Whip, declined to rule out impeachment -- but certainly did not rule it in, either.
Impeachment would, of course, fail. Even if House Republicans gathered the 218 votes required to bring articles of impeachment -- a far-fetched scenario -- conviction in the Senate requires a two-thirds vote, or 67 votes. There are now 45 Republicans in the Senate. In 1999, when the GOP impeached Bill Clinton, Republicans held 55 Senate seats, and got 50 votes to convict the president. So impeachment will not succeed now, any more than it did then.
The fact is, there is nothing House Republicans can do by themselves, short of another self-defeating government shutdown, to stop Obama if Senate Democrats are determined to block any move to assert congressional prerogatives and establish limits on executive overreach. But there is something House Republicans could do that would at least specifically target Obama's immigration action: They could vote to overturn the president's executive order.
Congress can overturn an executive order. It can overturn parts of an executive order. If the executive order is based on a statute, Congress can change the statute, thereby nullifying the order. Congress can also refuse to fund activities stemming from all or part of the executive order.
The only instance in which the above does not apply is if the president is acting pursuant to an exclusive power granted to him by the Constitution. Obama's immigration order would not be such a case. "As long as it is not constitutionally based, Congress may repeal a presidential order, or terminate the underlying authority upon which the action is predicated," the Congressional Research Service noted in a December 2011 report.
It's not very complicated. The CRS report mentioned Congress' revocation of an executive order by President George H.W. Bush concerning fetal tissue research. "Congress simply directed that the 'the provisions of Executive Order 12806 shall not have any legal effect,'" the report says. It was as simple as that.
If Obama chooses not to act by executive order, but instead issues some sort of "policy directive" -- the way he implemented the Deferred Action for Childhood Arrivals initiative that stopped the deportations of thousands of illegal immigrants -- then Congress would have the same authority to get rid of all or part of the president's directive.
Of course, Senate Democrats would block it. And even if Democrats, in some amazingly unforeseen scenario, went along with a move to overturn an executive order, Obama could veto it, requiring a two-thirds vote to override the veto. So a move to overturn an executive order would fail. But it would be specific, targeted, and proportional — not an over-the-top action like impeachment.
In addition, a targeted move to overturn an executive order on immigration -- an order which could, according to some reports, involve the president unilaterally granting legal status to a large portion of the estimated 11 million immigrants in the country illegally -- would put some red-state Democrats in a tough position with the November midterms approaching. Lawmakers who would find it easy to reject the extreme option of impeaching the president might have a more difficult time defending an executive order that many of their constituents oppose.
Obama is, by many accounts, preparing to "go big" on immigration. If so, his actions will clearly encroach on Congress' constitutional authority. With Democrats sitting on the sidelines, Republicans have to be ready to respond -- without going around the bend on impeachment.