President Obama styles himself a wit, and some of his best material lately has to do with his abuse of his powers.
“As long as they’re doing nothing, I’m not going to apologize for doing something,” Obama riffed to a crowd at the Georgetown Waterfront Park in Washington, DC, on July 1, referring to Republicans. “So sue me.” Hilarity ensued.
He cracked them up in Austin, Texas, last week. “You hear some of them,” he said, “ ‘Sue him.’ ‘Impeach him.’ Really? Really? For what? You’re going to sue me for doing my job?”
One can only imagine the comedic possibilities in his 9-0 defeat in the Supreme Court in June for his blatantly abusive recess appointments to the National Labor Relations Board, or any of the court’s other recent unanimous rebukes of his executive overreach.
It takes a truly blithe spirit to play the constitutional deformation of his office, and the ensuing congressional reaction, for laughs.
The Constitution’s injunction that the executive “take care that the Laws be faithfully executed” is not a suggestion. It is a requirement. It is designed to prevent the executive from unilaterally suspending laws, as English kings claimed the right to do.
The lawsuit against the president undertaken by House Speaker John Boehner targets the serial delay of ObamaCare’s employer mandate, just one of a number of seat-of-the-pants delays and alterations in the law.
The administration nonetheless delayed the mandate for a year via a Treasury Department blog post in July 2013.
Before his adoring audiences, the president says he has to act because Congress won’t. In this case, Congress was happy to act. In fact, the House passed a bill to delay the mandate until Jan. 1, 2015. President Obama threatened to veto it.
Last February, the administration delayed the mandate yet again.
It made a distinction between employers with 50 to 99 workers (the mandate won’t apply to them until 2016) and employers with 100 or more workers (the mandate will apply to them beginning in 2015) that has no basis in the law, and layered on additional rules also created ex nihilo.
All of this is indefensible. Nicholas Bagley, a University of Michigan law professor and ObamaCare supporter, wrote in a piece for The New England Journal of Medicine in May that the various ACA delays “appear to exceed the scope of the executive’s traditional enforcement discretion.”
The left’s reaction to the Boehner suit has been to rip the speaker for, in effect, suing to achieve the expeditious implementation of a law he opposes. True enough, but Boehner is trying to vindicate a principle that should be obvious.
As Bagley writes, “The Obama administration’s claim of enforcement discretion, if accepted, would limit Congress’ ability to specify when and under what circumstances its laws should take effect.”
If the next president accepts Obama’s modus operandi, we will witness the effective institutionalization of a chief executive unmoored from the laws.
So I sympathize with the impetus behind the Boehner suit, even if I am lukewarm on the suit itself. The key procedural question is whether Congress has standing to sue the president.
The courts have strict rules on standing — there must be a specific injury traceable to unlawful conduct, etc. — that are “founded in concern about the proper — and properly limited — role of the courts in a democratic society,” in the words of the Supreme Court.
Even if Congress can establish standing, it is inviting the courts directly into a political dispute with the executive branch, when the Constitution equips it with its own tools to fight such battles, especially the power of the purse and impeachment.
That prudential considerations make wielding those powers problematic in this political environment doesn’t mean that the courts should necessarily be the recourse.
At the end of the day, there’s simply no substitute for a political culture that values lawfulness. The president has damaged it gravely, and evidently had a hell of a lot of fun doing it.