UPDATED July 28, 2014
The U.S. House of Representatives is preparing to vote on a resolution that authorizes the House to enter into litigation in opposition to President Obama’s attempts to make his own laws, circumventing the Legislative Branch, which under the Constitution has the sole authority to make laws. Specifically, the resolution would authorize the filing of a lawsuit in objection to the way in which President Obama made changes to his health care law, twice changing the law without authorization by Congress. Following are some key points and a “question-and-answer” series that provide some of the basics about the impending House action.
WHY THE HOUSE IS TAKING ACTION
- This isn't about Republicans versus Democrats; it’s about the Constitution versus unconstitutional and unilateral actions by the Executive Branch, and protecting our democracy.
- The Constitution says the president must faithfully execute the laws, and makes clear that only the Legislative Branch has the power to legislate.
- The current president has demonstrated he believes he has the power to make his own laws – at times even boasting about it. He has said that if Congress won’t make the laws he wants, he’ll go ahead and make them himself. That’s not the way our system of government was designed to work.
- The aggressive unilateralism practiced by President Obama presents a challenge to the constitutional balance of powers, and the House is compelled to respond.
- If this president can get away with making his own laws, future presidents will have the ability to do it as well. No president should have the power to make laws on his or her own.
- Every Member takes an oath to uphold and defend the Constitution. When the Executive Branch tries to encroach on the powers of the Legislative Branch, it should be cause for concern for every Member who has taken that oath.
THE BASICS OF THE HOUSE LITIGATION
- The president’s unilateral actions on the health care law’s employer mandate in 2013 and 2014 will likely be the focus of the litigation brought by the House. There are many examples of executive overreach by the president, but his actions on the health care law are arguably the ones that give the House the best chance of success in the courts.
- The litigation will focus solely on the president’s unilateral changes to the health care law because that’s how the suit must be structured in order to maximize the House’s chances of being granted standing by the court. Basing the litigation on a laundry list of grievances against the president would make standing more difficult.
- In the case of the health care law’s employer mandate, the president twice changed the law without going through Congress, effectively creating his own law by literally waiving the mandate and the penalties for failing to comply with it. He legislated without the Legislative Branch. The Constitution doesn’t give presidents the power to do that. No president should have such authority. That’s what the House litigation will argue.
QUESTIONS & ANSWERS
Q: The president has dismissed the proposed House litigation as a political stunt. Is it a political stunt?
This isn’t about politics; it’s about defending the Constitution. A July 3 editorial in the Columbus Dispatch may have put it best: "[When the president] uses the refusal of [the] two other branches of government to rubber-stamp his agenda as an excuse for taking unilateral executive action, it becomes cause for serious concern. . .There is no constitutional provision allowing a president to assume absolute power when he doesn’t get his way. . .Obama points to his election as the source of his authority to act unilaterally. But each member of Congress won an election, too. Many of those members of Congress — especially the many Republicans who assumed the majority in the House in 2010 — won their seats because of the public’s alarm at the president’s direction, especially his deeply and persistently unpopular Affordable Care Act. In opposing the president, they are doing what the framers of the Constitution envisioned." (emphasis added)
Q: Republicans claim the president has repeatedly exceeded his authority under the Constitution, yet the House litigation will target the White House only on Obamacare. Why?
A: The litigation will focus solely on the health care law because that’s how this needs to be structured in order to maximize the House’s chances of having standing. Basing the litigation on a laundry list of grievances against the president would make standing more difficult, even if all of the grievances listed were completely valid. As George Washington University law professor Jonathan Turley said recently: “If the lawsuit comes out as a peddler’s wagon with every possible grievance against the president, it will have a poor chance of success. The more issues that are piled into these lawsuits the more it looks like a political question.”
Q: Why are you focusing on Obamacare’s employer mandate and leaving out immigration, the Bergdahl swap and other actions by the administration that many conservatives have argued are examples of presidential overreach?
A: There are many examples of executive overreach by the president, but his actions on the health care law are the ones that probably give the House the best chance of success in the courts. The employer mandate action by the president is also arguably the best known example of his executive overreach.
Q: By focusing the suit on Obamacare and the employer mandate, aren’t you arguing that the employer mandate should be implemented?
A: No; we’re arguing that the president can’t unilaterally change the law, without congressional action. The president twice changed the law (in 2013, and again in 2014) to provide relief from Obamacare for big businesses, while leaving Obamacare’s mandates intact for individuals and families. That was a legislative change, but it wasn’t done legislatively. The House position – expressed by a bipartisan vote in 2013, days after the president announced this move – was that Obamacare’s mandates should be stopped for all Americans, not just for big businesses. Rather than provide relief to all Americans, the president circumvented Congress and made his own, new law. The President of the United States doesn’t have the authority under the Constitution to do that. That’s what the House litigation will argue.
Q: But if the House lawsuit succeeds, it means the Obamacare employer mandate goes into effect, doesn’t it?
A: If the House litigation succeeds, the House would immediately take up legislation – again – to stop the implementation of the employer mandate through the normal constitutional legislative process, as well as legislation to stop the law’s mandates on the rest of the nation. Such legislation has already passed the House with bipartisan support. The House would also have the option of asking the court for a stay of the effect of the order to allow time for the legislative process to work.
Q: What exactly is the basis for your argument that by delaying the health care law’s employer mandate, the president created his own law?
A: As Michael Cannon of the CATO Institute explains: "[T]he [Obama administration's] unilateral decision to delay the employer mandate is the latest indication that we do not live under a Rule of Law, but under a Rule of Rulers who write and rewrite laws at whim, without legitimate authority, and otherwise compel behavior to suit their ends. Congress gave neither the IRS nor the president any authority to delay the imposition of the Patient Protection and Affordable Care Act’s employer mandate. In the section of the law creating that mandate, Congress included several provisions indicating the mandate will take effect in 2014. In case those provisions were not clear enough, Section 4980H further clarifies: ‘(d) EFFECTIVE DATE.—The amendments made by this section shall apply to months beginning after December 31, 2013.’ It is hard to see how the will of the people’s elected representatives – including President Obama, who signed that effective date into law – could have been expressed more clearly, or how it could be clearer that the IRS has no legitimate power to delay the mandate.”
Q: Why do you believe the House has standing to file this suit?
A: According to BakerHostetler's David B. Rivkin,Jr., a noted attorney with extensive experience in constitutional law litigation: "The merits of this litigation are beyond dispute. The employer mandate is a central plank of Obamacare, and the law does not allow it to be delayed, waived, or otherwise suspended. Yet to avoid the political consequences of imposing this mistaken policy on American businesses, the President has now suspended it twice, effectively contriving a new statutory scheme in the process. If the President wants to change the law, the Constitution requires that he work with Congress to do so. This President’s unilateral action violates the Constitution’s separation of powers and nullifies the authority of the legislative branch. The House’s lawsuit is aimed at restoring the balance set by the Constitution, where the people’s representatives in Congress write the laws and the President enforces them. The prospects for success in this litigation are excellent." For more on the issue of standing, see the Washington Post op-ed by Rivkin and fellow constitutional law expert Elizabeth Price Foley here.
Q: Will taxpayer dollars be used to pay for this suit? Is it a waste of money?
A: Defending the Constitution is hardly a waste of money. It is part of carrying out our official duties and the oath we take when we become members of Congress.
Q: Shouldn’t the House be focused on the jobs and the economy instead of lawsuits against the president?
A: The House is focused on jobs and the economy, and will continue to be; one floor vote on one simple resolution doesn’t change that. We can walk and chew gum at the same time. The House has passed dozens of jobs bills. Some of them have become law, like the workforce development bill that was sent to the president in mid-July. Many others are piling up in the Senate. Furthermore, America is a nation of laws, and the American economy relies on understanding our laws and regulations that apply to them. Uncertainty about how laws as written will be implemented creates a drag on our economy, our jobs, and our businesses. The President must be held accountable to faithful execution of those laws for the health of our economy.
Q: Congressional Democratic leaders say this is merely a political exercise, and that they will pressure their Members to oppose the House litigation. How valid is their claim?
As Kimberly Strassel of the Wall Street Journal recently observed, congressional Democrats “were for suing the president, before they were against it.”
Strassel notes: “Only two years ago, four [House Democrats] filed suit against Vice President Joe Biden (in his capacity as head of the Senate). . .Democratic legislators also filed lawsuits claiming standing in 2011, and in 2007, and in 2006, and in 2002 and in 2001,” Strassel notes. “It was left to Florida International University law professor Elizabeth Price Foley [during a recent House Rules Committee hearing] to remind Democrats that in fact no fewer than 44 lawsuits in which legislators sought standing had been filed in federal court since Coleman v. Miller,” a 1939 case in which the U.S. Supreme Court granted standing to legislators to sue.
Of the 41 filed by plaintiffs with unified political affiliation, nearly 70% were brought by Democrats,” Strassel further notes. “At least 20 of those came since 2000. . .It's precisely because Democrats know how good a point Republicans have about Obama unilateralism that they are already working to dismiss the suit as ‘political.’ And to do that, [Congressional Democrats] must have us forget that up until, oh, two weeks ago, Democrats were all about asking the courts to vindicate Congress's prerogatives. How times change.”
Congressional Democrats have previously recognized House standing to litigate against the position of the president even though they did not agree with the underlying position of the House majority, most recently in the DOMA litigation brought by the House. They joined House Republicans and argued for standing before the Supreme Court in that matter out of responsibility to the institution, and should do so in this case as well.
Q: The president is pointing to the House litigation in attempting to argue that the current border crisis and other urgent matters can’t be addressed without immediate congressional action on his supplemental appropriations request. He says he’d be willing to take executive action to address the border crisis and other matters, but he can’t because the House wants to sue him for it. How do you respond?\
A: The president is creating a straw man. We aren’t arguing that the president shouldn’t be able to issue executive orders; all presidents can and should be able to do that. We’re arguing that the president shouldn’t be able to make his own laws, as he did in the case of the suspension of the employer mandate. It’s a very important distinction. There are a number of things the president can and should be doing to address the border crisis that don’t require congressional action or additional money from Congress, and he shouldn’t use this suit as an excuse not to do them.