When Branches of Government Collide

Jonathan Turley, no foe of President Obama or his policies, is concerned about the president’s extraordinarily expansive view of executive discretion:

The United States is at a constitutional tipping point: The rise of an uber presidency unchecked by the other two branches.

This massive shift of authority threatens the stability and functionality of our tripartite system of checks and balances. To be sure, it did not begin with the Obama administration. The trend has existed for decades, and President George W. Bush showed equal contempt for the separation of powers. However, it has accelerated at an alarming rate under Obama. Of perhaps greater concern is the fact that the other two branches appear passive, if not inert, in the face of expanding executive power.

He produces a lengthy list of examples:

  • The heart of the healthcare law was a set of minimum requirements for insurance plans. After Obama was embarrassed by the cancellations of millions of nonconforming plans (when he had said no one would lose a plan they had and liked), he created first one temporary exemption and then, last week, another, adding two years to the compliance deadline set by law.
  • On his own authority, Obama also chose other dates for compliance with the employer mandate.
  • Congress ended a subsidy for members of Congress and their staffs so that they would obtain insurance under the ACA on the same terms as other citizens. Obama ordered that the same subsidies would continue, in defiance of the law.
  • He asked Congress to change the law to exempt certain classes of immigrants — particularly children — who are in the U.S. illegally from deportation. Congress refused to pass the so-called Dream Act, but Obama proceeded to order agencies to effectively guarantee the very same changes.
  • The administration ordered all U.S. attorneys to stop prosecuting nonviolent drug crime defendants who would be subject to what Atty. Gen. Eric H. Holder Jr. called draconian mandatory minimum sentences. The new rule effectively negates sentencing provisions set by Congress.
  • Obama opposed the No Child Left Behind Act and in effect nullified it through waivers of his own making.
  • For years, the Wire Act was interpreted to mean that Internet gambling was prohibited, which some states and businesses opposed. The Obama administration declared the act would now be treated as having the inverse meaning.

By far the least traumatic solution to the dangers in a too-expansive use of executive power would have been for the president not to have done it. Unfortunately, that’s a jinn that cannot be returned to the bottle and unless curbed we should expect future presidents to expand their power even farther. That has, sadly, been the history of the American republic.

In my opinion the second least bad alternative would be for the courts to automatically grant standing to the Congress in any case involving executive discretion. It seems obvious to me that the Congress should have such standing, either both houses together or either house severally, I honestly can’t see how a separation of powers could work in the absence of such standing, and I hope that one of my better-informed readers could brief me on the history of the Court’s present position on Congressional standing.

Failing that the only alternative open to the Congress would be a much lower threshold of what constitutes an impeachable offense.

It seems to me that those are the alternatives from which we must choose. Either we must accept an executive branch that enforces the law or fails to enforce it at its complete discretion or differences of opinion between the executive and Congress over what is necessary and proper must be considered an impeachable offense. That’s a Hobson’s choice.

23 comments… add one

  • michael reynolds

    So let’s put this on a graph. We have the president who lied to everyone so that he could justify starting a war that killed thousands of Americans and tens of thousands of Iraqis. And that’s one point on the graph.

    The other point is the president who, in the face of a nihilist political opposition forever threatening to destroy the economy, adjusts the health care law and refuses to prosecute some drug crimes.

    Yep, there’s your slippery slope, all right. At that rate the next president may well decide to unilaterally fail to enforce the military’s rules on hair length. Tyranny!

    No, seriously, this is totally how Hitler, Stalin and Mao started out.

  • TastyBits

    Having impeached a white president over a blowjob, impeaching a black president who refuses to do his job is not racist, but when that is your best argument, give it your best.

  • PD Shaw

    What’s interesting about this list is how “libertarian” it is, in the sense that the President is waiving or eliminating federal requirements. Politically, that creates a disincentive for Republicans to challenge the President’s hollowing out regulations like healthcare reform, because it gives them the tool to do more of the same.

    Legally, standing to bring a lawsuit is made difficult to establish because nobody is harmed when the government fails to act. The notion that government inaction is harmless is also a vestige of the Framer’s classical liberalism.

  • That’s a novel definition of libertarianism, PD. Mandating extra-legal privileges for certain classes of people or organizations.

    I think it would be libertarian if the president were to waive the individual mandate and the employer mandate for all individuals and employers. Picking and choosing? Not so much.

  • steve

    Most of his list is just piling on so he can have a list. Barring unlimited budgets, never gonna happen, priorities need to be set on law enforcement. We can use the resources not spent on nonviolent drug crimes better elsewhere. Same with not deporting kids. Spend the money that would have gone there on deporting problem people. The subsidy for Congress is total BS, if you actually follow the details.

    However, I think there should be a substantive discussion on delays in implementing policy. Do we really want to have the executive branch have its hands tied with exact implementation dates? If you were in the private sector you would certainly have some latitude on details like start dates. Demanding strict compliance on dates seems like a demand for mistakes and inefficient government. But, that needs to be balanced against attempts to usurp or undercut the law. It seems ot me we need a balance. Not sure how to get there. I guess in the ideal, the Exec. Branch would work with Congress, but those days are gone.

    Steve

  • PD Shaw

    I could make a longer list, including the Administration’s refusal to defend the Defense of Marriage Act. The Supreme Court complained that “[t]he Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma.” That was the opinion of the five most liberal members of the Court.

    That was professionally embarrassing; government lawyers frequently have to take positions on behalf of their institution that do not reflect their personal views or politics, and they come under attack by people opportunistically conflating their individual and institutional roles.

  • PD Shaw

    @Dave, good point, though I think a situation in which someone is receiving a reprieve and another is not has more potential to create standing for a lawsuit.

    I think the issue of Congressional standing is still debated, but a few points probably exist:

    1. Private individual plaintiffs are preferred. The Courts are reluctant to play referee in purely separation of powers disputes, particularly if they sense that there is a private litigant with standing available. In most cases, individuals also have more rights to claim against the government than the a branch of government does anyway. For example, Congressional standing was rejected in a challenge of the line item veto, but a private party harmed by exercise of the line item veto had standing to sue. The separation of powers concern was also weak, as Congress passed the line item veto, and the six members of Congress who sued were “sore losers.”

    2. Congressional institutions preferred to individual Congressmen. The line item veto case was brought by six Congressmen, and opposed by both bodies of the House and Senate. The House created the Bi-Partisan Legal Advisory Group to represent the House’s institutional interests in court. It tends to do this by filing amicus briefs, so the extent of its individual standing rights is unclear. In the DOMA lawsuit, Alito argued that BLAG had standing to defend the DOMA, while Scalia, Thomas and Roberts argued that BLAG did not. The five justice majority did not reach the issue, but come across to me as advocating a case-by-case approach.

    3. Courts will almost never, ever grant Congressional standing on national security or war-related issues. The President has independent Constitutional authority in these areas, so unless the President’s actions implicate an area of criminal law or property law, the lawsuit is likely to be dismissed. An example of this was the lawsuit concocted to challenge Clinton’s actions in Yugoslavia as in violations of the War Powers Resolution.

  • PD Shaw

    Scalia thinks Congressional standing places the judiciary in the position of deciding political arguments that the political branches are too lazy to fight out as originally intended:

    To be sure, if Congress cannot invoke our authority in the way that Justice Alito proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what “[a]mbition . . . counteract[ing] ambition,” The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “. . . or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.

  • I agree that the legislative and executive branches should be working this out between them. However, I return to the question I asked in the body of my post. What recourse does the Congress have if the executive disregards what the Congress does? The power of the purse? The executive will just ignore it and take the money from something else.

    The only power of the Congress that does not require any level of consent from the executive is the power of impeachment. That was my third alternative: a much lower threshold for what constitutes an impeachable offense. IMO the Court assuming that the Congress does have standing in any case involving interpretation of federal statute is preferable to doing that. Clearly, Justice Scalia disagrees which I presume to mean he thinks that most presidents should be impeached. I suppose after the first two or three in a row it would become less traumatic.

    I don’t think that was the original intent of the Founders. See Federalist #65. I think that Hamilton expresses a good understanding of the serousness and implications of impeachment.

  • PD Shaw

    Scalia is advocating something far messier, but initially he gives the executive the advantage. Passing a law through two houses and the President requests a lot of consensus. If the President decides to ignore aspects of the law he doesn’t like, both houses of Congress have to create a new consensus to stop him. The unitary executive has the initial advantage in such confrontations, and there is a timing problem. A consensus reached about the purpose of a law in 1969, does not exist in 1981, it may not exist in 1971. Congress has changed in two years, and will be unlikely to spend energies to enforce a prior consensus, as opposed to a new one.

    As a first defense, Scalia is advocating that Congress be far more distrustful of the executive when it passes laws. The laws should have consequences in them in advance. A lot of regulations have “hammers” in them if a rule is not passed in time or if an application is not acted upon. It may be that such distrust of the executive may prevent a lot of legislation from being enacted. Actually, I think it is probable.

    If the executive won’t follow the legislation, Scalia wants broad, excessive push-back. That means when Obama delays a project for Alabama, Senator Shelby was within his rights to block all ambassador appointments, something which the Inside the Beltway crowed objected to as crazy. All executive initiatives, however unrelated to the dispute, are fair game. The President should be decried as a despot and tyrant. Congressional oversight should be used to harass and intimidate executive officers. The budget should be used to punish the vulnerable divisions of government, and finally impeachment, which is completely appropriate for Turley’s complaint if Congress votes for it.

  • Andy

    Steve,

    Barring unlimited budgets, never gonna happen, priorities need to be set on law enforcement. We can use the resources not spent on nonviolent drug crimes better elsewhere. Same with not deporting kids.

    Setting priorities is quite a bit different than simply ignoring parts of the law. Secondly, resource constraints were not the reasons for executive action in these cases – the reasons were political.

    What happens when the shoe is on the other foot and a future (GoP) President will make very different choices using similarly flawed arguments?

    However, I think there should be a substantive discussion on delays in implementing policy. Do we really want to have the executive branch have its hands tied with exact implementation dates?

    What discussion? Congress can put in hard dates, make implementation conditions-based, or leave it up to the executive. The sad reality is that such decisions are usually based more on political factors than anything else. That’s the system working as intended. There is no discussion to be had unless one intends to amend the Constitution.

    Dave,

    The power of the purse? The executive will just ignore it and take the money from something else.

    That’s one area the executive doesn’t tread. The feds have a legion of lawyers that seek to interpret the funding law, but it it doesn’t ignore it. Otherwise the President could have done away with the idiotic limits imposed by sequestration.

    The last President that tried end-running Congress on funding was Reagan during Iran Contra. The power of the purse is still an effective weapon for Congress, but it’s a tool that’s rarely used. The most recent example is GITMO, where Congress specifically prohibits spending any money to transfer detainees to the US or to shut down the facility.

    IMO the Court assuming that the Congress does have standing in any case involving interpretation of federal statute is preferable to doing that. Clearly, Justice Scalia disagrees which I presume to mean he thinks that most presidents should be impeached.

    I don’t read it that way. The current strength of the Executive is the result of the weakness and factionalism of Congress. Scalia’s point is that the Judiciary should not be expected to step in and cover for Congressional failings. On that I strongly agree – it would only make the Judiciary even more politicized than it’s already become and allow Congress to further defer and deflect its responsibilities.

    Ultimately, the responsibility rests with the people. As long as we continue to allow Congress to act as it currently does, then these problems will not go away.

  • steve

    Andy- I think there is a significant difference in actions taken to try to make something work, and actions taken to harm or sabotage legislation. No plan survives contact with the enemy. All plans change.

    Steve

  • Zachriel

    The heart of the healthcare law was a set of minimum requirements for insurance plans… On his own authority, Obama also chose other dates for compliance with the employer mandate.

    Congress granted the executive broad powers to implement new laws under the Administrative Procedure Act. It’s clear that Obama intends to implement the law, so there’s probably no case to be made, but the Act gives the courts jurisdiction to compel the executive when a law has been “unreasonably delayed.”

    Congress ended a subsidy for members of Congress and their staffs so that they would obtain insurance under the ACA on the same terms as other citizens.

    If it was the same terms as other citizens, then they would still have employer paid health care.

    He asked Congress to change the law to exempt certain classes of immigrants — particularly children — who are in the U.S. illegally from deportation… The administration ordered all U.S. attorneys to stop prosecuting nonviolent drug crime defendants

    Congress has granted the executive the power to allocate law enforcement resources.

    Congress has the power to enact more specific provisions.

  • Andy

    Steve,

    I think there is a significant difference in actions taken to try to make something work, and actions taken to harm or sabotage legislation.

    As defined by whom? The distinction you are trying to make is entirely subjective.

  • steve

    Entirely subjective? Suppose they told Obama that the computer system really wasnt working. They needed a 6 month delay. It would be entirely subjective to put a hold on initiation until the system was functional? From my POV, that would just be common sense management. Now, suppose that another president in the future decides to unilaterally stop all funding being generated by the ACA. Unable to pay for itself, the ACA, predictably, collapses.

    What I am suggesting, and if you have ever run even a small organization this should be understandable, is the need to act as an executive.

    Steve

  • PD Shaw

    The ACA is unique. We haven’t had major legislation pass on a solely party line vote, and have the electorate punish the majority by almost immediately electing someone to block it (Scott Brown) and awarding the House to the opposition. (I think the ACA handed the Senate to the Republicans too, but they nominated Christine O’Donnell in Delaware, Sharron Angle in Nevada and Ken Buck in Colorado)

    So we’re left with Obama trying to execute the 2008 consensus, that was no longer there in 2010, which would probably work for Obama, except the law was written like crap. (It looks like a few different running proposals were put together without consistency in language or purpose.)

  • PD Shaw

    @steve, impossibility to perform a duty is always a defense. But that’s not why the mandates are being kicked, is it?

  • Andy

    Steve,

    The US government doesn’t run like organizations to which you refer. Our government is, by design, an adversarial system – most organizations aren’t like that. The comparison simply isn’t valid.

    Suppose they told Obama that the computer system really wasnt working. They needed a 6 month delay. It would be entirely subjective to put a hold on initiation until the system was functional?

    Well, that’s not the only possible course of action – how much discretion should a President have? What is a reasonable justification for delay? How much of a law can the President delay? Can the President delay only for a fixed period, or in perpetuity?

    It’s entirely subjective because everyone has their own answers to such questions for any specific topic. If you think the President should just be able to do as he/she pleases, then what is the point of putting any kind of timetable or implementation plan in any legislation?

    Secondly, if you want to grant the office of the President wide discretion to “alter the terms of the deal” that’s fine, just realize that a President you don’t like in the future will use that discretion for purposes you opposed. Or imagine what a President Romney would be doing right now with the discretion take by President Obama.

    Finally, with the possible exception of the employer mandate, the President issued these delays for political purposes and not due to problems with implementation. And, for the computer system example you mention, it’s quite likely in reality the administration knew the computer system wasn’t ready, but they couldn’t ask for a delay for political reasons. So your ideal example is just that – an ideal that doesn’t exist in the real world where decisions are ruled by politics and not wise and unbiased technocrats. As long as that is the case I would prefer not to give the Executive more discretion than they already have.

  • michael reynolds

    PD:

    No one elected anyone to stop Obamacare. They voted to register their objections to a black man in the White House.

    Honest to God, people, if you insist on believing that ordinary people share your obsessions with abstract policy you’re never going to understand anything political. It’s like discussing love poetry with an Aspergers kid. People don’t know the first fucking thing about Obamacare, they just know it’s Obama, and Sean Hannity says he’s a Kenyan terrorist subhuman mongrel, by which he means a nigger. They aren’t reacting to what you think they’re reacting to. You are losing the plot because you think the world is a bunch of high IQ policy wonks. Pretty darned sure it’s not.

    Politics is passion and prejudice and greed and insecurity. It’s a lot of things, but it’s only policy to billionaires and their lobbyists. To everyone else it’s tribalism and emotion.

    The last poll I saw had 70% saying keep and fix Obamacare. 28% want repeal. Because people love Obamacare? No, they don’t know what the hell it even means, but they’re sick of the whole issue and just want it all to go away and they like Obama more than John Boehner. They are voting their insecurities and their worries and their preference for inertia. Politics is emotion for the herd and greed for the elites. In no case is it related to reason.

  • PD Shaw

    Yeah, yeah, we know Michael, you think everyone is a racist that disagrees with you or Obama.

  • steve

    Andy- I am asking for a discussion on it. I think this need not be black and white. There needs to be some room between no discretion and the exec branch does whatever it wants. No other organization in the world runs that way. I dont see why govt should have to do so. Are there downside risks? Of course. There are also risks to doing nothing.

    Just to lay out an example, I think executives should have some leeway on timing of implementation. I think they should have much less leeway on changing the substance of the legislation.

    Steve

  • Well, change-ups because that’s what the implementation requires are one thing. Delays and waivers to fit the electoral calendar or give a hand to political allies are something else entirely.

  • TastyBits

    @michael reynolds

    You have no use for black people except for political purposes and to help your book sales. You are able to live the lifestyle the poor racist trash can only dream about. I wonder how you have such insights into the minds of the racists.

    As to Obamacare, President Obama does not have the political will to implement his own bill. If he will not do it, who will?

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