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 the United States 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. It required the employer mandate to begin this year. But Obama wrote a new law, giving to companies of a certain size 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 that standing can be obtained conditional on four things:
That a majority of one congressional chamber explicitly authorizes 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’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 a bill sponsored by Rep. Trey Gowdy (R-S.C.) that 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 (R-Ohio) as the legislature’s vindicator.
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George F. Will writes a twice-weekly column on politics and domestic and foreign affairs for The Washington Post.