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Tuesday, August 5, 2014

Dysfunction, "Standing" and Counter-Demonstration

 Apparently, Republicans in Congress can’t get anything right! First, they asked the President to delay the mandate pending on big business to comply with the healthcare coverage for employees as mandated by the ACA. The President complied with their request, and now the Congress is suing the President for this very action saying that he over-stepped his authority. Then on July 30th, Congress asked the President to use his Executive authority to address the crisis at our southern border. They actually want him again to take an executive action that they can then use as a charge of over-stepping his authority. Whoa! They want him to use his executive authority precisely because they could not bring the supplemental Border funding bill now pending to address the border crisis. Instead, they have gone on a month’s vacation , having done nothing to deal with this (and other problems - transportation for instance), except to produce legislation on the border crisis that is so far to the Right that it is off whatever radical charts the GOP is following!. The Speaker couldn’t get his own Party to bring the bill forward for a vote, but proceeded to castigate the President for not taking enough action on his own to address the border problem!

This is essentially the epitome of dysfunction. The House leadership cow-tows to the Ted Cruz-ites and can’t even bring its own bill to the floor. The House sues the President for what they asked him to do. Congress can’t get anything done, so it decides to go home for a month! Apparently, the bill couldn’t pass muster because it wasn’t bad enough! If you want more of this, just plan to vote Republican in November!

This is certainly bad enough, but I venture to say there is something being ignored that may be worse; and that may be the potential unconstitutionality (and non-existence) of the law that allows the Congress to sue a President. I find it abhorrent that a Congress can be allowed to get away with this maneuver. Let’s take a look.

The legislation, known as the “Enforce the Law Act” (H.R. 4138) allows the Senate or the House, jointly or separately, upon the adoption of a resolution, to bring a civil action against the president if the president, the head of any department or agency, or any other officers or employees of the United States has established or implemented a formal or informal policy to refrain from enforcing or administering any law, regulation, or statute in violation of Article II, Section 3 of the Constitution of the United States. An action filed under the provisions of this legislation would be filed in a Federal district court and considered by a three-judge panel. The panel’s decision would then be on an expedited track, able to be appealed directly to the Supreme Court.

Republicans in Congress have been agitating for months about what they view as President Obama's selective enforcement of federal laws. Among other actions, they cite his decisions to delay certain requirements of the Affordable Care Act, to exempt some young illegal immigrants from deportation proceedings, and to end mandatory minimum prison sentences for some non-violent drug offenders.

U.S. Rep Tom Graves said recently in a press release that “the hallmark of the Obama presidency has become his re-writing and selective enforcement of the law, from unilaterally changing Obamacare to preventing the deportation of select illegal immigrants,” said Rep. Graves. “The president’s behavior suggests he views Congress as an inconvenience rather than a co-equal branch of government. This imperial mindset threatens the stability of our government and erodes the confidence Americans have in our democracy. Under the bill that passed today, Congress could have meaningful debate and decide to sue any president who may not be faithfully executing the law as the Constitution requires. If that course were chosen, the public would benefit from hearing the Executive Branch explain its action in court.”

The primary sponsor of the bill, GOP Rep. Trey Gowdy of South Carolina, commented, "The Constitution says the president has a duty to faithfully execute the law, so for the health of the republic, it would be nice to debate what that phrase means," he said. Gowdy concluded, "This bill is necessary; it will give Congress the authority to defend this branch of government as the Framers and our fellow citizens would expect."

Democrats dismiss the tactic as a partisan charade that the Senate will simply ignore, but Gowdy said it's important to debate the balance of power in Washington and said Democrats should support the proposal in anticipation of the next time a Republican occupies the White House (an ominous thought!).

Democrats in Congress answered back, as did the White House:
House Democrats say all presidents, whatever their party, have significant discretion in how laws are enforced, and Obama is not the first to use it. Former President George W. Bush deferred immigration enforcement action for about 5,500 foreign students affected by Hurricane Katrina, for example, and some deadlines for implementing the Medicare Part D drug benefit were extended.

"Allowing flexibility in the implementation of a new program, even where the statute mandates a specific deadline, is neither unusual nor a constitutional violation," said Rep. John Conyers of Michigan, the top Democrat on the House Judiciary Committee. "Rather, it is the reality of administering sometimes complex programs and is part and parcel of the president's duty to take care that he faithfully execute laws."

In a statement issued by House Democrats, they made it plain what they thought of the ENFORCEMENT bill:

"The bill threatens to turn Congress into a super enforcement agency with the ability to bring civil actions whenever it disagrees with an exercise of enforcement discretion not only by the President, but by potentially thousands of federal officers and employees."

The White House indicated that the President would veto any such law that would allow Congress to sue him in federal courts because "it violates the separation of powers by encroaching on presidential authority." The White House statement added, "The power the bill purports to assign to Congress to sue the President over whether he has properly discharged his constitutional obligation to take care that the laws be faithfully executed exceeds constitutional limitations. Congress may not assign such power to itself, nor may it assign to the courts the task of resolving such generalized political disputes."

Such was the lead-up to this bill. What happened to it? It passed the House of Representatives March 12, 2014, was then referred to the Senate where it was Read twice and referred to the Committee on the Judiciary on 3/13/2014. No Further action has been reported, which means, of course, that the ENFORCE the Law Act has NOT been signed into Law. Therefore, the House has decided to sue the President of the United States without this legal basis for its actions – talk about dysfunction! It is, of course, more complicated than that.

1) Suing the President is nothing but political Theater
a. It is the same as the many ‘scandal’ hearings
b. It is the same as lies about Obamacare
c. It is the same as government shut-down
d. It is the same as the blocking of the appointments, the budgets and the legislative proposals of the President
e. It is the same as the budget ceiling debacle
It all comes down to Republican hatred for this particular President because of his skin color, and to their disposition to weaken, even destroy, the federal government.

2) Suing the President has no “standing” before the courts unless conservative judges decide to set another unconstitutional precedent.
Elizabeth Price Foley, Law Professor at Florida International University, comments on this issue of standing: “courts have limited ability to check a president’s failure to execute. The primary obstacle is “standing,” a doctrine that requires a plaintiff to have a concrete, personal injury in order to sue. Citizens can’t file generic lawsuits to enforce the Constitution; they must prove that the government has harmed them in a personal, palpable way.
“If a President delays, or exempts people from a law — so-called benevolent suspensions- who has standing to sue him? Generally, no one. Benevolent suspensions of law don’t, by definition, create a sufficiently concrete injury for standing. That’s why, when President Obama delayed various provisions of Obamacare — the employer mandate, the annual out-of-pocket caps, the prohibition on the sale of “substandard” policies — his actions cannot be challenged in court.
“Similarly, when the president decided not to deport certain young people, not to prosecute most marijuana users, and rewrote the work requirement of welfare reform, courts cannot rule on these acts’ constitutionality because no individual has suffered the personal harm required for standing. But the Supreme Court has made clear such generalized societal harms won’t suffice. “The Supreme Court has severely restricted so-called ‘congressional standing,’ creating a presumption against allowing members of Congress to sue the president merely because he fails to faithfully execute its laws.
“If courts can’t be counted on to check the president, couldn’t Congress just enact another law reversing him, or even impeach him? In today’s hyper-partisan climate, the answer appears to be no.
Even if the House passed a bill undoing presidential action — for example, a bill that declared, “We don’t want individuals brought into this country illegally to be exempt from deportation, and we really, really mean it this time” — the Democrat-controlled Senate wouldn’t likely allow a vote on the measure. House Republicans passed a spending measure this fall to keep the government operating. But because the bill included a one-year delay in Obamacare — something the president threatened to veto — Senate Majority Leader Harry Reid refused to even bring the bill to the floor.”
So the radical Republicans in the House have decided to use the unsigned law they passed to sue the President, but they appear to have little chance of being recognized as having the legal “standing” that requires. One writer for the Washington Examiner felt the law was a necessary one, but he chastised the GOP as the law was introduced initially for its theatrical “end run” while also criticizing the law itself: 

“In my opinion, if Congress is seriously contemplating such a law then it proves that they ought to impeach the President. This attempt to make a new law that allows another way to take the President to court strikes me as an evasion of their responsibility. The Framers gave Congress the authority by giving them the means of impeachment.”

And so, we come to the crux of the matter:

3) Either impeach the President or take impeachment off the table and stop the expensive theatrics!

Another writer, Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, has some thoughts on the whole matter that deserve a hearing:

“The Constitution has nothing to say about ways to cure the kind of gridlock that now exists in the national government in Washington. Neither side seems willing to yield and the Constitution – based as it is on the benign assumption that those in national leadership will always find ways to govern, more or less successfully – has no specific provision to force compromise.

“It is perhaps tempting to think that this is a problem that ought to be handed over to the courts: get them involved to enforce the lines of demarcation between what Congress does and what presidents are allowed to do. However, there is, and has long been, a constitutional barrier to the courts acting as an arbiter of inter-branch disputes between Congress and the White House. Its origin is in the Constitution’s Article III, and its meaning comes from the way the courts have interpreted the limitation spelled out there. “The judicial power,” it says, “shall extend to all cases…and controversies.” A “case or controversy” means, in this context, a live lawsuit, with those on each side having something genuinely in dispute, and that something is capable of being decided by the use of rules of law.

"The courts, in short, will not decide mere abstract legal controversies, and they will not hand out advisory opinions on how the laws or the Constitution are to be interpreted. Courts have a number of ways of showing respect for ...restrictions on their power, and one of them is to refuse to decide what is called a 'political question.' In this sense, 'political' means an issue the courts find has to be decided...only by the 'political ' branches: Congress and the Executive Branch.

"Time after time, when members of Congress have sued in the courts, because the Executive Branch did something that they believe frustrated the will of Congress, they have been met at the door of the courthouse with a polite refusal to let them in. Frustration does not make a real lawsuit, according to this notion.

"The resistance to resolving political disputes is quite deeply set. One might suggest that it would take an inter-branch controversy of monumental proportions to cause them to give up that reluctance. Is the feud over President Obama's use of his White House powers of that dimension? That may well be debatable."

Not willing to address this debatable issue, nor to pass a responsible supplemental budget bill to deal with the crisis on our southern border, Congress has gone home for their August vacation. In my humble opinion, Congressional Republicans ought to extend that vacation into a permanent one. However, that chore will be left to the American voter in November. Hopefully, this latest debacle over the crisis with the children at our border, and the resulting dysfunction displayed by congressional Republicans, especially their leadership, will help to decide the issue for many. But it will not, because there are still millions of voters who do not understand the negative outcomes of non-voting. Those who stay away from the polls, and those who vote for dysfunctional, do-nothing, government-destroying Republicans, will have only themselves to blame for the negative outcomes.

Unfortunately, the Democrats are simply using these outrageous Republican tactics and theatrics as a means of raising campaign money. Too bad, as there are, it seems to me, other alternatives.

Since it takes some sort of individual harm to have standing for a lawsuit of this kind, why not encourage the DNC as well as Democratic Representatives and Senators to search out the stories of children (and families) who have actually been harmed as a result of Republican actions or inactions regarding key legislation and budget lines for children. After all, one in five children in this country is feeling the effects of poverty. There must be thousands, maybe millions, of them who have met with personal harm or pain as a result of Republican maneuvers and tactics. Why not comb every congressional district for such victims and bring them to Washington DC where they could appear at rallies, committee hearings, legislative chambers and offices, as well as at press conferences to tell their stories. Then let Democrats make this point:

It is not the President who is abusing authority, it is the congressional Republicans who have left injured and abused children in their wake. Let Democrats point out that such specific examples of harm caused by Republican actions and inactions could be grounds for a counter-lawsuit or even for impeachment charges against the Speaker and his leadership Team. 

Raising money for politicians is one thing; raising hell on behalf of children is another!