So what’s with John Boehner’s newfound love of litigation? The speaker announced yesterday that he will ask the House to initiate a lawsuit against the president over his refusal to enforce the laws Congress has passed. That’s something the Wall Street Journal and George Will have both suggested, and it’s not a crazy idea.
First, the House likely has standing to bring an action. In 1990 a federal court held that a group of congressmen could not bring an action over George H.W. Bush’s failure to comply with the 1974 War Powers Resolution, but left open whether the House as a whole had standing. More recently, the House litigated the Defense of Marriage Act after the Obama administration declined to defend — and it would almost certainly have standing to litigate the president’s right to disregard litigation.
Second, Obama has clearly trampled over congressional power by ignoring validly enacted statutes. Presidents have always had the power to veto a bill, subject to a two-thirds override by both houses of Congress. In recent years, however, they have enjoyed an expanded, non-reviewable veto power: without vetoing a bill and risking a congressional override, they might simply decide not to enforce it. When George W. Bush did this, in “signing statements,” liberals were quick to detect the whiff of fascism.
Under Obama, however, this implicit veto power has been expanded in two ways. First, it has been employed to negate laws passed by prior Congresses, as opposed to new laws that are the subject of signing statements. And second, it has been employed to nullify laws that are constitutionally unobjectionable. When Republicans in the House refused to pass the DREAM Act, for example, Obama found a way to do an end-run around Congress. He issued an executive order commanding that immigrants not be deported, and declined to enforce existing immigration laws.
In my new book, The Once and Future King (Encounter, 424 pages, $27.99), I list all the ways in which this would appear to violate the Constitution. First, there’s the vesting power: on Article I, § 1, legislative powers are vested in Congress. Then there’s the presidential veto power of Article I, § 7 (why veto a bill, and risk an override by Congress, if a president can simply decide not to enforce it?). It also would seem to disregard the presidential oath and Article II, § 3, which enjoins the president to “take Care that the Laws be faithfully executed,” to say nothing of the separation of powers itself. So you can see why giddy conservative constitutional lawyers want their day in court.
But here’s the problem: where the border between the executive and congressional branches might lie is a political rather than a judicial question, and the Supreme Court has left political questions of that kind for the president and Congress to work out. Admittedly, yesterday’s decision on recess appointments suggests a new willingness to police the turf between the two branches, but that case was decided on a narrow reading of a specific clause of the Constitution. Boehner’s lawsuit, by contrast, would ask the Court to speak to the most basic features of American government, and it’s more likely that the Court, like Priscilla Mullins, would say, “Speak for yourself, John Boehner.” Let Congress fix the problem, without the courts.
That’s especially the case where the executive must necessarily be given some discretion about how or whether to enforce a law. John Locke, no apologist for kingly government, understood this. Congress can pass a law, but when it comes to enforcement years later, what a president brings to the table is the benefit of hindsight.
Finally, there’s the very limited precedent value of any decision. Let’s say the Supreme Court overcame its deference to the political process (as seen in John Roberts’s Obamacare decision). Even then, a president could be expected to continue on his merry way with respect to other statutes he decided not to enforce, citing John Locke’s prudential concerns about the need for executive discretion.
In the end, therefore, Better Call Saul looks more like a nifty way to deflect attention from Congress’s failure to police the president through its spending power than a serious attack on the expansion of presidential power. We’ve reached the point where Washington has adopted what I call Crown Government, and it’ll take something more than a lawsuit to arrest this.