by Mitch Kokai
Senior Political Analyst, John Locke Foundation
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.