The headline question facing the nation has far-reaching consequences and cannot be taken lightly. Executive Power is a serious matter. Politics alone is never reason enough for such a powerful issue.
Given is the fact that the political parties are always biased in regard to this. Under Republican presidents Democrats scream outrage, and vice versa. All presidents push the envelope of Executive Power during their tenure. Thus the real question is where is the line that a President dare not cross, and what should be done when it is crossed?
Speaker Boehner has chosen the changes to Obamacare that President Obama unilaterally put into place for his line in the sand. There is no question that the President took action without Congress, as well as that the changes were changes in law and not just execution of the law. So the question of standing - the first hurdle that a lawsuit must clear to move forward - is valid.
But Obamacare is not the only case that can be claimed as crossing the line. The unilateral action on immigration - DACA - violates Executive Power as defined in the Constitution in that it affects an entire class of people, not a case by case discretion which is solidly in the purview of the Executive Branch. Lesser arguments can be made for violation of the War Powers Act last summer with Syria and even earlier with the bombing of Libya. There are many other examples that can be used, with varying degrees of support and credibility, but the point is that the Presidential overreach is occurring regardless of the issue used for the lawsuit being proposed.
So Speaker Boehner has picked potentially the best case to make the argument, at a time when the President has repeatedly publicly stated he will act unilaterally on a host of issues in debate in Congress. Still Rep. Slaughter, during the House Rules Committee hearing on the lawsuit July 16, 2014, took the partisan position of defending the Party first and the Constitution a far second.
"Furthermore the Constitution gives the Congress the power to write the laws. The legal theory put forward by the Republicans to explain why this lawsuit should prevail relies on the notion that somehow President Obama has nullified the House's legislative power. This is simply not the case."
Just as a quick summary response to Rep. Slaughter we provide the following from Forbes (2/24/14)
"But Obama has changed all of that, instead using executive orders on offense, to trigger a set of policy changes he wants but fears Congress won’t enact... frustrated by the inability of Congress to pass immigration reform, Obama kicked off his own set of reforms by executive order, halting the legal deportation of thousands of immigrants in the U.S. illegally... Congress won’t pass gun control? No problem, as Obama signed 23 executive orders on gun control, a couple of recent ones setting up possible confiscation of guns using the Affordable Care Act... Obama has found yet another use for executive orders: changing and amending his own laws... Don’t like the mandate on small companies? Fine, we’ll just postpone it. How about the requirements on big companies? Fine, we can ease those too. In all, the president has issued 22 modifications or delays of his signature legislation." [emphasis added]
There is no lack of documentation, reports and commentary that support a simple conclusion, President Obama has executed law. In fact, at the 2014 State of the Union Address, President Obama made his intent crystal clear
"I’m eager to work with all of you,” a confident Mr. Obama told lawmakers of both parties in the 65-minute nationally televised speech in the House chamber. “But America does not stand still — and neither will I. So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.” [emphasis added]
Thus the question becomes, without partisan defense of their own party for political self-interest, has the Executive Branch grown in power such that it today exceeds the intended limits outlined in the Constitution?
We believe that the House Rules Committee testimony of Johnathan Turley, a George Washington Law School professor, outlines the issue and the resolution.
We agree with Speaker Boehner, Rep. Sessions, Elizabeth Foley, Johnathan Turley, Georgia State University law professor Neil Kinkopf (accusing President Bush of presidential overreach), U.S. District Court Judge Vaughn R. Walker (who ruled against the Bush & Obama Administration's claim of state secrets privilege for warrantless surveillance program) on Presidential overreach. Easily since President Franklin D. Roosevelt authorized the internment of Japanese Americans with Executive Order 9066 in February 1942, if not even before that time, the power of the Executive Branch has steadily grown and is now far out of balance with the Congress and courts in our opinion.
Can Congress sue the President? Yes. More importantly the Congress must act, not just because of the promise of even further unilateral legislation, but because the power of the Executive is a slippery slope to a form of Government that our Founding Fathers created the Constitution to fight against.
Our conclusion is that the greatest benefit to the nation, now and in the future, is a direct action to curtail the overreach of the Office of the President. Because as John Nichols (Washington correspondent for THE NATION) said in part in 2007,
"He has taken powers unto himself that were never intended to be in the executive. And, frankly, that when an executive uses them, in the way that this president has, you actually undermine the process of uniting the country and really focusing the country on the issues that need to be dealt with. Let's be clear. If we had a president who was seeking to inspire us to take seriously the issues that are in play and to bring all the government together, he'd be consulting with Congress. He'd be working with Congress. And, frankly, Congress, through the system of checks and balances, would be preventing him from doing insane things..."
Those words apply as much today as they did 7 years ago, if not more. IF Congress fails to act, imagine what will be said about Presidential overreach in another 7 years.