Alright Already, So Call a Policeman

The editors of the Wall Street Journal have come out in favor of the House’s suit against President Obama:

Liberals claim that Mr. Obama’s pose as law giver is necessary because Republicans are obstructionist, and, anyhow, the Constitution’s limits are the dusty artifacts of the 18th century unsuited to modern times. One irony is that they dismiss the House suit even as they claim to be troubled by national security surveillance that has always been grounded in both statute and the Constitution, with no evidence of abuse.

Yet Mr. Obama’s claim that he can pick and choose which laws to enforce is far more offensive to the American tradition than anything the government has done in the name of antiterrorism. The House challenge is an opportunity to vindicate the genius of the Framers to prevent the exercise of arbitrary and centralized power.

while David Rivkin and Elizabeth Price Foley, the architects of the argument in favor of the validity of such suits, explains their rationale:

A president who unilaterally rewrites a bad or unworkable law, however, prevents the American people from knowing whether Congress should be praised or condemned for passing it. Such unconstitutional actions can be used to avert electoral pain for the president and his allies.

If Mr. Obama can get away with this, his successors will be tempted to follow suit. A Republican president, for example, might unilaterally get the Internal Revenue Service to waive collection of the capital-gains tax. Congress will be bypassed, rendering it increasingly irrelevant, and disfranchising the American people.

Over time, the Supreme Court has come to recognize that preserving the constitutional separation of powers between the branches of government at the federal level, and between the states and the federal government, is among the judiciary’s highest duties.

My guess is that the suit will not prevail. The Court will seize the nearest figleaf and, since the suit is only being brought by one house of Congress, dismiss it for lack of standing.

The reality, I think, is that not taking sides is taking sides and such a decision will reasonably be seen as the Court siding with the president and the Senate. If the Republicans take the Senate in November, stay tuned for the next chapter in January.

29 comments… add one
  • PD Shaw

    I watch the lawsuit with fascination; the stakes seem high; and the judges difficult to pin down. The stakes are higher than I believe most Democrats appreciate; they should root for the House to have standing to challenge the executive, but for this particular challenge to fail. Jonathan H. Adler is skeptical, but summarizes some of the legal arguments.

  • jan

    This article contemplates and discusses the top ten myths about the House’s proposed suit against Obama.

    Myth #9 is especially cogent, as it applies to how officials in power should be held in check, no matter which party is at the helm — taking any partisan R and D out of the equation when judging strictly the merits of such a legal action.

    Hypocritical posturing is a bipartisan practice, but on this issue, Kim Strassel has shown it is a more apt criticism for certain liberals, including House minority leader Nancy Pelosi, who have filed much less meritorious suits against a president in the past. In any event, legislators should care about their institutional powers at least as much as their political position. Any successful lawsuit will set a precedent, and it should. That is exactly how James Madison explained the separation of powers would promote the liberty of the people: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place [his branch of government].” And the liberty of the people is advanced when a Congress controlled by either party reasonably uses any option to cabin an abuse of presidential power, no matter what the president’s party.

    Even though I think the odds of the House winning this suit are low, I find myself getting more and more on board with it, if for no other reason than being a legal exercise to reestablish some measure of restrain to keep executive powers at bay, in this as well as future administrations.

    I also find Obama’s mockery of said lawsuit, used as a rhetorical tool to maliciously excoriate the House’s response to his unilateral actions, to be juvenile, more reminiscent of his previous less sophisticated community organizer day job rather than the serious, accountable position he holds today — that of a POTUS. Perhaps for his partisan audience, laughing and sneering at his political cohorts, will do the trick in hiding any smidgen of overreach or executive abuse of power. But, it remains to be seen how it will be processed by the rest of the country, especially when it’s brought up in tandem with his immigration threats of going it alone, once again, in lieu of Obama’s poor image and optics, relating to the current border crisis.

    Immigration has emerged as perhaps President Obama’s worst issue — definitely for today, and maybe of his entire presidency — when it comes to public perception.

    A new poll from AP-GfK shows more than two-thirds of Americans (68 percent) disapprove of Obama’s handling of the immigration issue in general. Just 31 percent approve — down from 38 percent two months ago.

    When you separate those most passionate about the issue, the difference is even more stark, with 57 percent opposed and just 18 percent in favor. That’s more than three-to-one.

  • steve

    PD- Wouldn’t the argument go something like the following? If the Congress feels that it has suffered damages such that it can claim standing, should it not also be able to pass a law as a remedy? Failure to do so implies only part of Congress feels it has suffered damages suggesting that this is a political disagreement.

    While it is clear IANAL, suppose this suit does go through. Suppose it wins. Does that mean that a minority of Congress will be able to claim political setbacks have damaged them, which they surely do in some ways, and have a chance of having their minority POV enforced if they have SCOTUS stacked with ideological sympathizers?

  • PD Shaw

    @steve, there is something called the “political question doctrine” which is the courts way of saying that there is not a judicial issue here, but a political issue to be hammered out by the political branches.

    Your point about one house versus both seems important to me. If both houses brought a complaint against the President, the case might be weaker because Congress has other remedies. A single house doesn’t. And it’s hard to empathize with this House, because it voted to repeal the ACA a zillion times, so its actions cannot be seen as benignly upholding the ACA.

    But the courts are not supposed to dabble in policy. So the result here should not be any different if Romney were elected in 2012 and used executive powers to waive the individual and employer mandates. If the House stayed Republican and the Senate stayed Democrat, it might be the Senate filing suit against Romney to force him to execute the ACA.

    I’m not sure about what you mean by the last paragraph. If the lawsuit wins it means that the President exceeded his statutory authority. AND it means that one House of Congress has standing to make such cases. Usually the only ones that have standing are injured private citizens like Hobby Lobby. What it opens up is the possibility of one chamber being able to force the President to obey the law and not simply take advantage of divided legislators.

  • CStanley

    If the complaint is that the President is not executing the law as written and passed by Confress, then how is passing another law going to remedy that situation?

  • PD Shaw

    . . . hmmm, it’s very hard to look at these judicial disputes outside of a context in which a specific outcome is desired. I think judges, unlike the political branches, do look at the bigger picture, even given a notable ideological bent. When people rejoice that their preferred outcome has prevailed, and even so-and-so on the other side agreed, I tend to think that so-and-so has a longer frame of reference.

    Let me give a real world example of standing . . .

  • PD Shaw

    OK, so last year I lost a lawsuit to prevent this house from being demolished. It had been registered as a historical landmark by the immediately prior owner. The subsequent owner obtained a demolition permit under the rules government property that had not been historically landmarked. Each of these parties I represented were found not to have standing to object to this course of events:

    1. Previous owner that had spent money to landmark the property and sold the property at a loss because of the landmark registration;

    2. Property owners that shared a common driveway with the landmark that were concerned about the quality of their own property;

    3. The President of a city historical preservation society that has a long-term interest in the preservation and landmarking of historic properties.

    The judge ruled that the only people with standing to object to a demolition permit are the owners of the property to be demolished, nobody else suffers “a personal injury in fact.” (Here, I am quoting the objection to the ACA lawsuit from Dellinger’s testimony, but the reasoning is the same.) Strict, narrow interpretations of standing favor a narrow set of pecuniary interests. Should any of these people have standing to object to the mayor ignoring the city ordinance? If they don’t what is the use of landmarking?

  • steve

    CStanley- Most laws are vaguely written. The executive branch has usually had some leeway, for example, about exact start dates for laws. Congress has usually ignored it. If they think it is begin delayed too much they can pass a law saying when it needs to be started and note that there is to be no executive discretion.

    PD- What I meant by my last paragraph parallels your last sentence above, sort of. The claim of damages when there is no clear financial damage for the plaintiffs would make for a very narrow interpretation. If it is made very broad, OTOH, what would stop Congress from claiming that it hurts their chances for re-election, harms their reputation (or whatever)? All you need to do is get into court when your team holds the bench. They can always find a reason to support it.


  • steve

    CStanley- Or put another way, if Congress really feels that the laws are not being executed properly, why is only one part complaining?


  • CStanley

    why is only one part complaining?

    Well then the question becomes, which part is acting in a partisan manner?

  • jan

    What a beautiful house PD! Ah, I can’t see why anyone would want to demolish it.

  • Oh, for Christ’s sake. They’re going that lovely house for what, PD?

  • Excuse me y’all. That’s “destroying” that lovely house …

  • The Schulers:

    I like this song:

  • steve

    CStanley- Exactly!


  • PD Shaw

    @Jan, what the picture doesn’t show well is how dense the woods are around the house. In the 1940s, it was rented to a couple from California — he was from England, his wife was from Japan, and they obtained permission to leave the coast to avoid internment, and the house was “hidden away” within the city to avoid prying eyes. She might have been the first “Jap” living in the city, and I don’t think she was made entirely comfortable during her visit.

    @Janis: As far as I can tell, they tore down the house over a year ago to lower their property taxes and save on long-term maintenance costs. There is nothing replacing it.

  • TastyBits

    @PD Shaw

    I do not know how you all do things up there, but we have trees that you do not touch without the OK from the tree preservation society. I think one of the housing projects is a historic landmark, or at least, they tried to have it designated.

  • PD Shaw

    @Tasty, that was how it was supposed to happen. When the application for a demo permit came in, its historic landmark designation should have been noted, and the application sent to a committee for extended review. Frankly, I think the process is really just intended to slow things down to see if their are any alternatives / white knights in the community to come up with an idea and funding to save the building.

  • jan


    Not only was the house stunning, but also the history surrounding it that you shared.

    It reminds people, once again, of past mistakes made – internment policies, being one of them — that adversely effected so many lives. I have two friends, each carrying with them stories of hardships endured by primary family members during WWII.

  • Andy

    So wait, someone bought the property and then decided the taxes/maintenance were too high, so they tore it down, not intending to replace it with anything? Why’d they buy the property in the first place?

  • jan

    Andy, you would be surprised by the irrational moves of people buying property, especially when money means little to them.

  • PD Shaw

    @Andy, he bought the house for something like $400k in 2006, and says he put a couple hundred thousand in improvements, including all new windows. He had a renter for awhile, but said the size of the rooms were too small to keep a renter. The empty lot is now listed at $225k (down from $285k). I am sure there is some angle that I might be missing, like gossip.

  • Andy

    Wow, very strange indeed.

  • I think it’s plainly more money than good sense. A McMansion mentality, Andy.

    Plus, it’s just too cold to live up there, however pretty the house is.

  • The money part happens in Natchez all the time. Taking on an old house, even one that young, is a huge expense. The electrical wiring was done before there were even codes, for instance.

    And forget about the number of outlets, when a whole houseful of people have tablets, and cellphones, and laptops.

  • The number of old houses on the market in Natchez is unbelievable.

  • Could they have possibly meant to flip that house, PD?

  • It costs $10,000 or more to paint a modest two-story Victorian. A thousand dollars to trim an oak tree properly, every two years or so, if it’s done properly.

  • Those oak alleys down south cost a jillion dollars.

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