Pastorius & I talked about this article the other night:
It beats impeachment because, if successful, it would nullify Obama's illegal executive actions. Impeachment would not.
New York Post:
What Congress can do about Obama’s rewriting of laws
By George F. Will
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.
Boehner must have been listening:
Boehner Planning House Lawsuit Against Obama Executive Actions
Speaker John A. Boehner, R-Ohio, told Republicans Tuesday he could have an announcement within days on whether the House will file a lawsuit against President Barack Obama, challenging the executive actions that have become the keystone of the administration.
The lawsuit could set up a significant test of constitutional checks and balances, with the legislative branch suing the executive branch for ignoring its mandates, and the judiciary branch deciding the outcome.
Boehner told the House Republican Conference during a closed-door meeting Tuesday morning that he has been consulting with legal scholars and plans to unveil his next steps this week or next, according to sources in the room.
Boehner spokesman Michael Steel said further action is necessary because the Senate has not taken up bills passed by the House targeting executive actions. The House has passed a bill expediting court consideration of House resolutions
starting lawsuits targeting executive overreach and another mandating that the attorney general notify Congress when the administration decides to take executive action outside of what has been authorized by Congress.
“The president has a clear record of ignoring the American people’s elected representatives and exceeding his constitutional authority, which has dangerous implications for both our system of government and our economy,” Steel said. “The House has passed legislation to address this, but it has gone nowhere in the Democratic-controlled Senate, so we are examining other options.”
It remains unclear which executive action or actions the House would challenge, but Obama has given Congress ample targets. In the last several years, he has issued executive actions halting deportations of hundreds of thousands of immigrants who came to the country as children, extending the family and medical leave benefits to gay couples and raising the minimum wage for federal contractors. He has also worked around legislative deadlines for enacting provisions of the Affordable Care Act and issued other executive actions relating to the environment and the gender and race pay gap.
Obama has said he takes executive action because of a divided Congress’ inability to pass laws targeting important issues of the day. Congressional Republicans contend such actions are unconstitutional and thwart Congress’ power.
But individual members of Congress do not have standing to sue because they are not legally recognized as injured parties. Congress as an institution, on the other hand, may sue on the grounds that there has been institutional injury done because their legislative powers have been nullified.
One path Boehner could take would be to convene the Bipartisan Legal Advisory Group, a panel of leaders created in 1993 that votes on whether or not to sue on behalf of the House. The group consists of the speaker, the majority leader, the majority whip, the minority leader and the minority whip, and it would act on a majority vote.
Boehner last convened the group when the Obama administration dropped its defense
of the Defense of Marriage Act in 2011. The House has since dropped its challenge of the law. At the time, however, Minority Leader Nancy Pelosi of California objected to the challenge
holding that it was an unwarranted way to spend taxpayer money. Her spokesman, Drew Hammill, said she will likely object similarly if Boehner moves forward with a lawsuit against the president.
“While the urgent needs of the American people are ignored by House Republicans, it is reprehensible that Speaker Boehner plans another doomed, legal boondoggle after he spent $2.3 million in taxpayer dollars unsuccessfully defending discrimination in federal courts,” Hammill said.
Boehner’s legal theory is based on work by Washington, D.C., attorney David Rivkin of Baker Hostetler LLP and Elizabeth Price Foley, a professor of law at Florida International University College of Law.
Rivkin said in an interview that in addition to proving institutional injury, the House would have to prove that as an institution, it has authorized the lawsuit. A vote by the Bipartisan Legal Advisory Group would do so.
The suit would also have to prove that no other private plaintiff has standing to challenge the particular suspension of executive action and that there are no other opportunities for meaningful political remedies by Congress, for instance by repeal of the underlying law.
“Professor Foley and I feel that if those four conditions are met, the lawsuit would have an excellent chance to succeed. This is particularly the case because President Obama’s numerous suspensions of the law are inflicting damage on the horizontal separations of powers and undermine individual liberty,” Rivkin said.
Rivkin and Foley have argued in op-eds that most of Obama’s executive orders have been benevolent — that is, they have exempted classes of citizens from the law, for instance through deferred action for childhood arrivals. Therefore, no individual has standing to sue because the actions have helped people. Congress as an institution, however, can sue because the actions flout the laws they have passed.
They have argued that short of impeachment, there is no other check to the president’s issuance of executive actions.