Guest Editorial
BY Robert Romano | JULY 2, 2014
Boehner to take Obama to federal court on executive overreach?
"I intend to bring to the floor in July legislation that would authorize the House of Representatives — through the House General Counsel and at the direction of the Bipartisan Legal Advisory Group (BLAG) — to file suit in the coming weeks in an effort to compel the president to follow his oath of office and faithfully execute the laws of our country."
That was a memorandum from House Speaker Rep. John Boehner (R-Ohio), pushing for a House resolution that would enable the legislative body to take the Obama administration to court in attempt to make the President follow the law.
But, the memo is not specific to any particular Obama overreach, notes National Review's Andrew McCarthy, writing, "the judiciary has no power to issue advisory opinions about the president's behavior outside the context of an actual case or controversy."
That is true. For the House to be able to bring suit, it must be a case in which it has standing.
So, the devil will be in the details, but one presumes Boehner is referring to H.Res.442.
That bill, proposed by Rep. Tom Rice (R-S.C.) in December, would order the House to sue in federal court challenging certain Obama executive actions, including arbitrarily delaying implementation of Obamacare. The bill generated 119 cosponsors who support in principle the idea of the House taking the lead in a federal court case.
Specifically, the House would be bringing suit in the following areas, according to the bill's summary. First, "the Department of Health and Human Services (HHS) policy that, for health insurance coverage that is renewed for a policy year between January 1, 2014, and October 1, 2014, health insurance issuers may continue to offer coverage that would otherwise be terminated or cancelled for noncompliance."
So the first suit would compel implementation of Obamacare, particularly the provisions that would take away individual's existing health care plans.
Second, the House would challenge "the one-year delay in the application of the reporting requirements of the Code (and its related requirements with respect to shared responsibility for employers regarding health coverage)." That is, the White House's delay of the so-called employer mandate.
Third, the House would challenge "the Department of Homeland Security (DHS) policy to exercise prosecutorial discretion for individuals who came to the United States as children," allowing illegal immigrants who came to the U.S. as children to stay.
Finally, the House would bring suit against "the authorization, approval, renewal, modification, or extension of any experimental, pilot, or demonstration project under the Social Security Act (SSA) that waives compliance with any of its mandatory work requirements through a waiver of SSA state family assistance plan requirements."
Certainly, this is a rather novel approach to litigation — where the legislative body itself would take the executive branch — so questions of standing are certainly legitimate.
Boehner said the resolution would be limited to suits wherein "There is no one else who can challenge the president's failure" to faithfully execute the laws of the land.
Yet as McCarthy notes, that would mean "no one has suffered a concrete personal injury that would provide the standing necessary for a court case — judges are not there to resolve power disputes between the political branches."
Usually not, and it is debatable whether the House is indeed the aggrieved party in the four suits cited, or whether the House can speak for all of Congress on whether the President is executing the laws or not. Is it truly the case "There is no one else who can challenge the president's failure" to execute immigration law, waiving the work requirements under the Social Security Act, or delaying implementation of Obamacare?
Again, it's a novel idea. And McCarthy is probably right that courts would be loathe to intervene in these instances. But who knows?
Meanwhile, one thing the bill does not include is something the House might actually have standing to sue over, and that is the Internal Revenue Service's (IRS) failure to comply with Congressional subpoenas. These include the missing emails of former Exempt Organizations head Lois Lerner's missing emails and other agency officials.
At this stage, House members openly worry that the agency has deliberately concealed evidence of wrongdoing by the administration from Congress. If so, the House Ways and Means and Oversight Committees need to immediately expand their subpoenas to every federal department, agency, or office that Lerner and the other IRS officials might have sent an email to or received one from, including the White House, which is not immune to oversight.
Even if the IRS was not following the requirements of the Federal Records Act in maintaining email records, it is hard to believe every federal department, agency, and office Lerner emailed was similarly derelict in its duties. So, even if the missing Lerner emails are not on the IRS's server, they may yet be located on other federal servers.
Unless there was a concerted cover-up, in which case it may take a court order to put a stop to it before it is too late. The House should include in its resolution a suit to enforce all outstanding Congressional subpoenas related to the IRS investigation, including any necessary forensic audits. The evidence needs to be preserved.
Finally, going to court is fine on the House's part as a tactic in a grander strategy, but not singularly as the strategy itself. There is plenty more the House could do be doing.
It could vote to impeach unelected officials responsible for issuing Obama's edicts via regulation and policy proclamations.
The House could convene more select committees on Obama scandals, including the IRS, Fast and Furious, failure to enforce immigration laws, and so forth.
They can have more amendments to appropriations bills that defund regulations and executive decisions the House believes steps on Congressional prerogatives and rewrites existing law.
They can have more votes eliminating or reining in agencies and boards that serve no purpose or have superseded Congressional authority to legislate in those areas.
Boehner writes in his memo to House members that "It is only through strong action by the House in response to provocative executive action by the Executive Branch in the past that the separation of powers intended by the Framers has been preserved. For the integrity of our laws and the sake of our country's future, the House must act now."
If Boehner really believes that, if he is committed to clamping down on arbitrary executive power, there is a lot more for the House to do. Going to court is just one, although in the IRS case, it might be imperative to get there as soon as possible — before all of the evidence is destroyed.
Robert Romano is the senior editor of Americans for Limited Government.
