Congress could more easily sue the president under legislation likely to pass the Republican-led House Wednesday.
Democrats dismiss the tactic as a partisan charade that the Senate will simply ignore, but a lead Republican sponsor of the idea said it’s important to debate the balance of power in Washington.
“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,” said GOP Rep. Trey Gowdy of South Carolina.
Republicans in Congress have been agitating for months about what they view as President Barack Obama’s selective enforcement of federal laws.
Among other actions, they cite his decisions to delay certain requirements of the 2010 Affordable Care Act, to exempt some young illegal immigrants from deportation proceedings, and to end mandatory minimum prison sentences for some nonviolent drug offenders.
Gowdy’s bill would allow the House or the Senate — not individual lawmakers — to sue Obama or any executive branch employee for allegedly failing to enforce a law. The cases would be sent directly to a panel of three federal judges and then expedited to the U.S. Supreme Court.
“If you can’t assert the significance of your institution, then that makes me wonder why you’re in that institution,” Gowdy said.
Gowdy acknowledges that Democrats are unlikely to vote for the bill. But he said Democrats should support the proposal in anticipation of the next time a Republican occupies the White House.
“There is no line of cases that says the chief executive gets a second veto,” Gowdy said. “When the legislative branch imposes a duty on the executive, it’s constitutional, and the money has been appropriated, you can’t decide whether you want to do it.”
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 executes laws.”
Rep. Louise Slaughter, D-NY, said last week that House Republicans are using the debate to insinuate that Obama has broken laws.
“I mean, we have sunk to such a low when it comes to legislation,” she said.
Democrats say Gowdy’s bill would tilt the balance of power too far in favor of Congress.
“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 House Democrats said in a statement.
Gowdy’s bill, which is also championed by Rep. Darrell Issa of California and Bob Goodlatte of Virginia, would establish that Congress as an institution has standing to bring a lawsuit against the administration. The House Judiciary Committee, chaired by Goodlatte, approved the bill along party lines one day after Gowdy introduced it.
During the debate, Republicans voted down a Democratic amendment that would have required a quarterly accounting of how much such lawsuits cost.
Gowdy, a conservative former prosecutor, said he has no reservations about using taxpayer money to fight for a constitutional principle.
“I’d be willing to go on fewer CODELs (congressional delegation trips abroad) to assert the fact that we don’t pass suggestions or ideas, we pass laws,” Gowdy said.
During a February hearing on the executive branch’s constitutional duty to execute laws, Jonathan Turley, a professor at the George Washington University School of Law, said the country is in the midst of a constitutional crisis.
“There has been a massive gravitational shift of authority to the executive branch that threatens the stability and functionality of our tripartite system,” Turley said. “To be sure, this shift did not begin with President Obama. However, it has accelerated at an alarming rate under this administration.”
Duke University law professor Christopher Schroeder testified at the same hearing that the executive branch often must make decisions based on circumstances not expressly specified in the law. He cited the example of clean-air laws that initially didn’t define whether a single smokestack or a group of smokestacks at a facility constitute a “source” of air pollution requiring regulation.
“Discretionary choices are unavoidable features in executing almost all laws,” Schroeder said.