Tuesday, August 5, 2014

Legislative Supremacy and Suing the Executive in the White House

You should read this book.
We are not constitutional scholars.

But we have been around enough of them to know what they are and what they might say from time to time.

We are not big fans of President Obama. We thought there was a slight glimmer of hope the more we watched re-runs of his truly great speech at the 2004 Democratic National Convention where he declared:

'There is not a Black America and a White America and Latino America and Asian America—there's the United States of America.'

Alas, we may be more divided now than at any time in modern history. George W. Bush wanted to be a 'uniter, not a divider'. President Obama said the right things in 2004 but he has not been very uniting, has he, as a President?

Oh well. Another two-term presidency almost down the drain. Why we allow Presidents to run for re-election is almost getting ridiculous. Most, if not all, second terms of Presidents turn out to be disasters in one way or another.

Regardless of how you feel about President Obama, should the US GOP House sue him for not performing his executive duty as President?

That's a loaded question. It brings in so many constitutional questions and basic gray areas in our representative democracy form of government that we are not sure anyone has a clear answer to it just yet.

However, that has not stopped us before from thinking out loud. Maybe you can help us figure it out as well.

From our constitutional scholars, we do know 2 things are certain:
  1. There is a real question of 'standing' as in 'does the US House have the legal standing or authority to be able to sue another branch of our tripartite government'?
  2. The Supreme Court has shied away from getting involved in such disputes between the executive and the legislative branch in the past.
One law professor we know might put it this way: 'The Supreme Court of America has not come within a 10-foot pole of ruling on the War Powers Act and the Executive power as commander-in-chief after 225 years of our shared history. You think they are going to be dumb enough to wade into this minefield?'

We think there is some real danger in President Obama playing foot-loose and fancy-free with not enforcing certain provisions of the law with which he disagrees. More on that later.

We think Congress has one 'nuclear option' that they can always play and it happens to be fully 100% bonafide and guaranteed by the US Constitution. That is the 'power of the purse'.

All bills to spend money and all bills to raise revenues must originate in the US House of Representatives. That is enormous power in and of itself. If Congress doesn't authorize the payment of appropriations, the government-sponsored activity will cease, plain and simple.

If Congress doesn't like the fact that the President of the United States is not performing his executive duties to enact the bills that Congress has passed, they can withhold funding. For anything in the budget.

For example, if President Obama delays the implementation of Obamacare because he and the Democrats are fearful of the backlash they will suffer at the polls (which he has done twice now, to extend beyond the 2012 and now the 2014 elections), Congress can strip funding for the federal employees who were supposed to implement and enforce Obamacare once it is allowed to take place after this fall's elections.

'But hey!' you might say. 'The Democrat Senate under Harry Reid won't agree to that and won't pass the same bill in the Senate!'

That is very true. However, guess what happens if the House and the Senate can't agree on a budget (which is hard to do given that Harry Reid and the US Senate has never passed a budget yet under Obama) or any of the 13 appropriations bills in any given year?

That is right. Congress will be forced to pass a Continuing Resolution which will fund government at last year's levels, not a new higher level.

Given that Medicare and Medicaid are entitlement programs that operate outside of the annual appropriations process*, the savings will only be in the domestic discretionary side of the budget which includes defense, education, welfare, foreign aid and environmental protection.

But over time, these annual savings would build up, yes? We don't have the figures handy but funding these domestic programs at FY 2014 levels until 2020 might come darn close to balancing the budget all on its own.

'Is that fair?' you may ask.

'Is it 'fair'  that the President can and will take unilateral action to implement those parts of the ACA that he likes for political advantage and not the parts that a Democrat Congress passed and sent to him to sign that he doesn't like or will cause him and the Democrats electoral pain at the polls?' you can ask back.

Neither is a great way to run a railroad or a nation as great as the United States of America, truth be told. In fact, it is childish as heck. But it is a powerful tool Congress can and should use to assert its authority, its 'legislative supremacy', if you will, that Henry Clay spoke of so often in the early days of the Republic.

None of us should pray for the day when one person, no matter how much you may love him or her or agree with their political philosophy, can exact their will on a nation of 310 million people with a pen or a cell phone, as President Obama so prominently promised (threatened) to do in his State of the Union speech.

Because if it can be done by someone you 'agree with', it can also be done by someone you 'disagree with' and that will be a very dark day for American democracy.

Speaking of which, let's get back to the dangerous precedents President Obama may be laying down right now that could come back to haunt him and you if you agree with his unilateral executive actions today.

What would prevent a Republican President in 2017 from assuming office and saying this:
'You know, I have never really liked the corporate income tax, or the capital gains tax, or the estate tax for that matter. Therefore, I am instructing the Treasury Department and the IRS to not prosecute or persecute any corporations or persons who decide not to file any of them on their tax returns for the next 4 years'.
'While I am at it, I think the environmental protection laws are too restrictive and onerous for the private sector in America to compete on a fair basis with China and other nations across the globe. Therefore, I am instructing the EPA to stand-down in their on-site inspections of companies who may be violating environmental laws in favor of adding more jobs to this moribund economy I have inherited from my predecessor'.
And so on....
You may scoff at such a suggestion but be aware that Thomas Jefferson asked Congress to zero out the federal budget for the judicial branch as President because he thought the courts 'had become too political'.

Imagine that. Politics in the courtroom. Sakes alive.

We will be as shocked as these constitutional scholars we know if this congressional lawsuit makes it to the Supreme Court.  We will be electrocuted throughout our entire being if the Supreme Court actually takes up the case and then rules in favor of Congress against the executive powers of the President.

Until then, just know that the Founders of the Constitution did everything in their power to write a template for government that made darned sure that one person, one tyrant, and even one small faction of representatives or senators could not run roughshod over the rest of us and government just because they wanted to.

One mighty way to check any abuse of power in the White House would be for the US House to use their constitutional power of the purse to surgically neuter the power of President Obama in the White House.

If the Republicans pick up the 6 seats necessary this fall in the Senate (even though recent polls show a total of 12-14 seats are now in play as potential Republican pickups), this lawsuit would become moot because a Republican House and Senate should be able to force President Obama to do what they tell him to do by the money they allow in the various parts of the federal budget.

Or the money they deny him to use. It all comes from Congress. Not the White House.

*(although we think both Medicare and Medicaid should be dealt with each year either in the appropriations process or through annual budget reconciliation procedures...but that is too Inside-The-Beltway talk to go over again right now)
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