Stopping a Lawless President

We have a lawless President in the White House. George Will explains what that means, the huge number of times this President has circumvented the law of the land, and what can be done about it.
Example: Congress should not extend the trade authority bill for this lawless President, regardless of how beneficial this legislation will be under a trustworthy administration.

Republished from By by George F. Will, Opinion writer, June 20, 2014

George Will

George 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
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.

Read more from George F. Will’s archive or follow him on Facebook.

Republished from The Washington Post.  CLICK HERE to Read the Original.


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