What Congress can do about Obama’s rewriting of laws

What philosopher Harvey Mansfield calls “taming the prince” — making executive power compatible with democracy’s abhorrence of arbitrary power — has been a perennial problem of modern politics.

It is now more urgent in America than at any time since the Founders, having rebelled against George III’s unfettered exercise of “royal prerogative,” stipulated that presidents “shall take care that the laws be faithfully executed.”

Serious as are the policy disagreements roiling Washington, none is as important as the structural distortion threatening constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity, and qualitatively different.

Regarding immigration, health care, welfare, education, drug policy and more, Obama has suspended, waived and rewritten laws, including the Affordable Care Act.

That law required the employer mandate to begin this year. But Obama wrote a new law, giving to certain-sized companies a delay until 2016, and stipulating that other employers must certify they will not drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so, he created a new crime, that of adopting a business practice he opposes.

Presidents must exercise some discretion in interpreting laws, must have some latitude in allocating finite resources to the enforcement of laws and must have some freedom to act in the absence of law.

Obama, however, has perpetrated more than 40 suspensions of laws. Were presidents the sole judges of the limits of their latitude, they would effectively have plenary power to vitiate the separation of powers, the Founders’ bulwark against despotism.

Congress cannot reverse egregious executive aggressions such as Obama’s without robust judicial assistance. It is, however, difficult to satisfy the criteria that the Constitution and case law require for Congress to establish “standing” to seek judicial redress for executive usurpations injurious to the legislative institution.

Courts, understandably fearful of being inundated by lawsuits from small factions of disgruntled legislators, have been wary of granting legislative standing. However, David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe standing can be obtained conditional on four things:

That a majority of one congressional chamber explicitly authorize a lawsuit. That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’ power.

Hence the significance of a House lawsuit, advocated by Rivkin and Foley, that would unify fractious Republicans while dramatizing Obama’s lawlessness. The House would bring a civil suit seeking a judicial declaration that Obama has violated the separation of powers by effectively nullifying a specific provision of a law, thereby diminishing Congress’ power. Authorization of this lawsuit by the House would give Congress “standing” to sue.

Congress’ authorization, which would affirm an institutional injury rather than some legislators’ personal grievances, satisfies the first criterion. Obama’s actions have fulfilled the rest by nullifying laws and thereby rendering the Constitution’s enumeration of Congress’ power meaningless.

The House has passed Rep. Trey Gowdy’s (R-SC) bill that would guarantee expedited consideration by federal courts of House resolutions initiating lawsuits to enforce presidents to “faithfully execute” laws. But as a bill, it is impotent unless and until Republicans control the Senate and a Republican holds the president’s signing pen.

Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government.

This abstract doctrine may appeal to moralists lacking responsibilities. For the judiciary, it would be dereliction of the duty to protect the government’s constitutional structure. It would be perverse for courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.

Advocates of extreme judicial quietism to punish the supine people leave the people’s representatives no recourse short of the extreme and disproportionate “self help” of impeachment.

Surely courts should not encourage this. The cumbersome and divisive blunderbuss process of impeachment should be a rare recourse. Furthermore, it would punish a president for anti-constitutional behavior, but would not correct the injury done to the rule of law.
Surely the Republican House majority would authorize a lawsuit. And doing so would establish Speaker John Boehner as the legislature’s vindicator.

http://nypost.com/2014/06/22/what-congress-can-do-about-obamas-rewriting-of-laws/

 

Boehner readies House lawsuit over Obama executive orders

(Reuters) - Republican House of Representatives Speaker John Boehner said on Wednesday he plans to sue President Barack Obama, accusing him of abusing his authority by going around Congress to implement his policy agenda.

The suit, to be filed by the House of Representatives later this summer, takes issue with executive actions Obama has taken on issues ranging from healthcare to energy to foreign policy, Boehner said. But he declined to be specific about which administration actions he would challenge.

"The Constitution makes it clear that the president's job is to faithfully execute the law. In my view, the president has not faithfully executed the law," Boehner told reporters.

In a memo to Republican lawmakers, the speaker said Obama's actions risked giving the president a "king-like authority" at the expense of U.S. voters and Congress.

Obama has increasingly used executive orders this year to advance his agenda in the face of a gridlocked Congress. He raised the minimum wage for federal contractors and stopped the deportation of young people brought to the United States illegally by their parents. Obama also recently extended family leave rights nationwide to workers in same-sex marriages, and barred contractors from discriminating against gay employees.

Boehner's memo said he will bring legislation to a floor vote in July authorizing the House general counsel to file the suit. The case would take months to work its way through the courts, but it would give Republicans new fodder to try to sway voters in the November congressional elections.

"I think Speaker Boehner is being a very effective advertisement for the Republican Party," said John Hudak, a governance studies fellow at the Brookings Institution. "He's playing to his base."

White House spokesman Josh Earnest said Obama had "solid legal rationale" for his actions and added Congress should work with the administration instead of taking it to court.

"The fact that they are considering a taxpayer-funded lawsuit against the president of the United States for doing his job, I think is the kind of step that most Americans wouldn't support," Earnest said.

Legal experts said U.S. courts are generally reluctant to wade into what they perceive as political fights between Congress and the White House.

Stanley Brand, who served as the House's general counsel under the late Democratic House Speaker Tip O'Neill, said a narrowly focused suit has a better chance of success, particularly when it comes to Supreme Court review.

A suit as broad as the one envisioned by Boehner would face skepticism from judges, Brand said.

"They’re not referees of political disputes, they’re arbiters of concrete action," he said. "The courts are not going to supervise a president that way. I don’t want to say it’s harebrained, but it’s close to it."