What is to be done?

The House Rules Committee took the first step toward initiating a lawsuit against President Obama over his faithless execution of the laws and abrogation of the separation of powers. The committee held a hearing on the House Resolution that would provide the House authority Four professors of constitutional law testified to the Rules Committee about the merits of the lawsuit, with two supporting and two opposed; the two in support were Jonathan Turley (testimony here) and Elizabeth Price Foley (testimony here). National Journal’s Billy House provides background here, with links to the testimony of all four scholars.

Assuming the House passes a resolution providing authority to initiate the lawsuit, the lawsuit will focus specifically on Obama’s delayed enforcement of Obamacare’s employer mandate. Whence Obama’s authority to rewrite the statute without congressional approval? That is the question.

Professor Turley’s testimony takes up themes that have preoccupied us as we have explored Philip Hamburger’s new book on the nature of administrative law. Here is an excerpt of Professor Turley’s testimony (footnotes omitted):

One of the most common misconceptions of our constitutional system is that the Separation of Powers doctrine was created for the benefit of the three branches of government. In reality, it was meant to protect individual, rather than institutional, rights. The Framers feared the concentration or aggrandizement of power. Such dominant power breeds a threat to individual liberty interests. While the Framers feared tyranny in any of the three branches, much of this concern was directed at the Chief Executive for obvious reasons. The Framers were well versed in the history of England and were familiar with the need to limit executive authority in the interpretation of laws. The core abuse was the notion of “royal prerogative,” with the King being able to act unilaterally in his interpretation or suspension of laws. King James I claimed that he was simply applying “natural reason” to the enforcement of laws. He insisted that he had the right and duty to use his own judgment as to the proper course of the government since “law was founded upon reason.” While Kings did not refer to “gridlock,” they denounced Parliament for being obstructionist or unreasonable. King Charles I clashed with the House of Commons for years and even stormed the chamber with troops. He believed in the divine authority of Kings and rejected the most basic notions of shared powers with the Parliament. He was eventually charged with “a high Breach of the Rights and Privileges of Parliament,” including the violation of the “right and power of frequent and successive Parliaments.” These and other conflicts led not only to King Charles I’s execution but also to a strong view of the necessity of the separation of powers in the English, and later the American, systems.

It was precisely this sense of executive “prerogative” that the Framers wanted to avoid in creating the new American system. Thomas Jefferson wrote in 1783, with regard to the Virginia Constitution, “By Executive powers, we mean no reference to the powers exercised under our former government by the Crown as of its prerogative . . . We give them these powers only, which are necessary to execute the laws (and administer the government).” The American president was to execute, rather than create, laws. Roger Sherman described “the Executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect.” Likewise, James Wilson defended the model of an American president by assuring his colleagues that “[h]e did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature.”

Reflecting these views, the Framers stated that the President “shall take care that the laws of the United States be duly and faithfully executed.” It was a direct mandatory statement that stood in contrast to the fluid notion of executive prerogative. I have previously testified on the history and meaning of that clause, which I will not repeat here. However, some of President Obama’s statements come strikingly close to assertions by King James I that he could apply “natural reason” to the alteration, and even the suspension, of federal laws. Today this “natural reason” is often expressed as deference to executive agencies in the logical application of laws. Those were reflected in the last hearing with Simon Lazarus, who did an able job in defending the Administration. Reflecting the public statements of the Administration, Lazarus insisted the delays and changes in the Patient Protection and Affordable Care Act (ACA) were “sensible” choices made “to simplify and improve” the relevant provisions. These “sensible” improvements include the suspensions of key deadlines and provisions that could result in expenditures of billions of dollars in federal subsidies not approved by Congress. There may be good reasons for such changes. However, this is not a question of what to do but how should such changes be made and, more importantly, who should make them? Some of the changes unilaterally ordered by the President were previously sought from Congress. After Congress did not approve such changes, President Obama announced that he would go it alone. He proceeded to order the changes that he felt Congress should have made. He simply resolved the division with Congress by ordering changes on his terms as a majority of one.

There is no license in the Madisonian system to “go it alone.” Our country is sharply divided politically and that division is manifested (as it should be) in Congress. During times of division, less may get done. Both sides must either compromise or seek to change the balance of power in the next election. The assertion of executive prerogative to implement changes without Congress is tantamount to a pledge to govern alone. Such a dominant executive certainly promises to “get things done” but at a prohibitive cost. Those who remain silent today should consider that, in less than three years, a different president will sit in the Oval Office. That person could use the very same claims to suspend environmental or anti-discrimination laws. The short-term benefits of achieving such changes will pale in comparison to the long-term damage to our system from fueling the rise of an American über-presidency. The safeguard for our system remains our federal judiciary, but as discussed below, the courts have increasingly detached constitutional rights from judicial remedies.

Whole thing here.

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