By George Will
Saturday, June 21, 2014
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 the policy disagreements roiling Washington
are, 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. It 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:
1) that a majority of one congressional chamber
explicitly authorize a lawsuit;
2) 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;
3) that Congress cannot administer political self-help by
remedying the presidential action by simply repealing the law;
and,
4) that the injury amounts to nullification of Congress’s
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’s power.
Authorization of this lawsuit by the House would give Congress “standing” to
sue.
Congress’s 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’s power meaningless.
The House has passed the bill of Representative Trey
Gowdy (R., S.C.), which would guarantee expedited consideration by federal
courts of House resolutions initiating lawsuits to force 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.
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