Executive power plays: Lawsuits, recess & judges

“So sue me,” the President said in the State of the Union address when he announced he would be using the executive powers of the

“So sue me,” the President said in the State of the Union address when he announced he would be using the executive powers of the presidency more, since the Republican-controlled Congress was blocking all the big legislation and lots of the little stuff, too.

“Fine, I’m suing,” the Speaker of the House said, after the president did just what he said he would do.

Since January, President Obama has used his executive powers to raise the minimum wage for employees of government contractors, stop the deportation of minors in the country illegally, to empower the Environmental Protection Agency to curb carbon emissions from coal plants and to extend family leave to same-sex couples in the federal workforce.

This week House Speaker John Boehner announced he would seek legislation authorizing the House to sue the president who, he says, has not “faithfully executed the laws.”  Or maybe he meant that the president has executed too many laws. Whatever.

The pendulum of power swings both ways, at times favoring Congress, at other times the executive and sometimes neither one, thus fostering the type of gridlock we see today.  Usually the down dog thinks the top dog is lawless and over-reaching.

The speaker has not indicated precisely which executive actions the lawsuit will target and what the legal approach will be.  And courts do not like to get in the middle of separation of powers spats between Congress and presidents.

The whole process of writing and passing legislation and getting adjudication in courts will take, conservatively, forever. If there is litigation and then a final resolution, it is likely the republic will have a new president.

That is one reason why House Minority Leader Pelosi says the threat of a lawsuit is a “subterfuge.”

Because of the long legal odds, the Conventional Wisdom seems to be that the Speaker’s lawsuit is a stunt, an election year protest.  Perhaps. 

But there is also something to be sad for Congress standing up for itself. It is part of the process whereby the powers separate themselves. At some point in most presidencies, the opposition party, whether it controls the Congress or not, complains that the incumbent president has become an imperial grabber of power. Tick-tock.

The speaker has yet to give out any jurisprudential detail, but conservative columnist George Will laid out the strategy to get “standing” (getting the courts to accept the case) in a recent column. 

Will says four conditions must hold for a successful suit:

“That a majority of one congressional chamber explicitly authorizes a lawsuit. That the lawsuit concern the president’s ‘benevolent’ suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’s power.”

There is a rather enormous irony here.  Will says that, “Congress cannot reverse egregious executive aggressions such as Obama’s without robust judicial assistance.”

“Robust judicial assistance” is a fancy-pants way of saying judicial activism, something conservatives abhor at every opportunity. But this, alas, would be judicial activism, Will writes:

Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government. This abstract doctrine may appeal to moralists lacking responsibilities. For the judiciary, it would be dereliction of the duty to protect the government’s constitutional structure. It would be perverse for courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.

Advocates of extreme judicial quietism to punish the supine people leave the people’s representatives no recourse short of the extreme and disproportionate “self help” of impeachment. Surely courts should not encourage this. The cumbersome and divisive blunderbuss process of impeachment should be a rare recourse. Furthermore, it would punish a president for anti-constitutional behavior but would not correct the injury done to the rule of law.”

This would seem to support the de facto, real life definition of judicial activism: Rulings with which I disagree.

In fact, the judiciary was active Thursday on a case involving executive power. In NLRB v. Noel Canning, the Supreme Court put some new definitions on the president’s power to make recess appointments.  The Court basically said that presidents may make recess appointments only when the Senate is in a real recess, not just a short break.

There is irony in this ruling as well. During George W. Bush’s term, Democrats would put the Senate in pro forma sessions when they went on vacation precisely so the President could not make recess appointments. President Bush ignored the advice of some legal counselors and didn’t challenge that practice in court. And now future presidents of both parties may have to grapple with this new complication. Tick-tock.

The Speaker may not fully appreciate how shortsighted descriptions of executive power can haunt you in the long run.  Still, there is civic value in arguing over these things.

His lawsuit may be a political stunt, sure. But as far as stunts go, it isn’t the worst one in the world.

Dick Meyer is Chief Washington Correspondent for Scripps News. An experienced writer, reporter and author, Meyer was executive producer for the BBC's news services in America, NPR's executive editor and editorial director of Meyer also wrote a book on American culture and politics,  "Why We Hate Us: American Discontent in the New Millennium"  (Crown Publishing/Random House, August 2008).

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