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Upholding the Law

What Congress can do in response to an administration run amok

Mar 10, 2014, Vol. 19, No. 25 • By JEFF BERGNER
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Many Republicans—and a handful of independent commentators like George Washington University professor Jonathan Turley—have been highly critical of President Obama’s executive branch overreach. The president has arbitrarily delayed, deferred, or ignored provisions of numerous laws, none more so than his signature Obamacare legislation. There is indeed much to criticize; no other president in recent times has usurped congressional lawmaking powers to the extent Barack Obama has. 

Bergner

Administration spokesmen have defended these actions by pointing out that other presidents have also issued executive orders. But President Obama’s actions are less like executive orders in the usual sense of the term than they are like legislation. Nor are they based upon a constitutional argument that the president must act in response to a Congress that has intruded into areas that are properly under his constitutional authority.

These actions are the pure assertion of an unconstitutional presidential power to make law. What is needed now, however, is not further criticism, but a careful and sober consideration of what Congress can do to address this burgeoning constitutional crisis.

We should be clear: When we ask what Congress should do about it, we are really asking what congressional Republicans should do. Senate majority leader Harry Reid has demonstrated that he will not defend the institution of the Senate but will defend whatever President Obama does. Harry Reid was once an opponent of George W. Bush’s recess appointments, calling the Senate into pro forma session every three days to prevent them; Reid turned on a dime to support President Obama’s decision to ignore the very Senate pro forma sessions he had created. 

Harry Reid once argued strenuously against Republicans ending the 60-vote threshold for confirmation of presidential appointees. As majority leader, he adopted the very “nuclear option” he had so long opposed. In doing so he eviscerated a long-standing minority party protection merely to facilitate the confirmation of mid-level Obama political appointees.

Harry Reid has all but ended the Senate tradition of open debate. Reid controls not only what bills are considered on the Senate floor—a well-established leadership prerogative—but also what amendments can be offered to those bills. He has done this by foreclosing the amendment process with a parliamentary tactic called “filling the amendment tree,” turning the Senate into a mini-version of the House of Representatives. No other majority leader in recent memory has taken these steps—not Bill Frist, Tom Daschle, Trent Lott, George Mitchell, Bob Dole, Howard Baker, or Robert Byrd (who was a steadfast supporter of the Senate’s constitutional role). Beneath Harry Reid’s bland exterior beats the heart of a pure partisan. The Framers’ notion that a Senate leader would defend his institution rather than his political party is quaint and inoperative when it comes to Harry Reid. 

IMPEACHMENT

One step available to House Republicans in response to President Obama’s overreach is outlined in Article II of the Constitution: impeachment. Before assuming this option is beyond the pale, we might ask whether it is really so crazy. Is Obama’s usurpation of congressional powers less serious than Bill Clinton’s cover-up of his sexual activities? Moreover, impeachment is politically possible. Impeachment of the president requires only a simple majority of the House, which Republicans hold. It does not require the cooperation of the Senate.

There are serious reasons, however, to doubt the wisdom of this course. First, the ground is simply not prepared. The idea of impeachment would strike official Washington—and most Americans—as coming out of the blue and as overkill at that.

Second, impeachment would produce immediate charges of racism, as if something other than the president’s actions had caused Republicans to take this step. Given the usual tongue-tied Republican reaction to charges of racism, Republicans would be well-advised to avoid putting themselves in this position.

Third, in today’s vernacular, what is the “endgame” of this strategy? The House can bring charges against the president, but the Senate would adjudicate them, and there is no chance that the required two-thirds of the Senate would vote to convict. As we saw with Bill Clinton, a failed impeachment is almost an exoneration.

Finally, and most important, this powerful tool should not be used when other options are available. Barack Obama and Harry Reid may politicize everything they touch, but that does not mean Republicans should do so. Republicans should be prudent and employ a very high standard before resorting to the quasi-criminalization that impeachment implies.

LAWSUITS

A second option is recourse to the courts. Bringing suit against the president to invalidate his extraconstitutional actions is a reasonable idea. It has the advantage of bringing in a third, neutral party to adjudicate a dispute between the legislative and executive branches. House Republicans have long been wary of this approach, for one good reason: They too support delaying the implementation of Obamacare. Why sue to overturn welcome delays even if wrongly put in place by executive order?

In recent days, more than 100 House Republicans have overcome their hesitation and cosponsored Rep. Tim Rice’s STOP (Stop This Overreaching Presidency) legislation to bring suit against the president. This is a good start, which offers several advantages. 

It is by no means clear that the Supreme Court would take a case aiming to invalidate the president’s actions; as a rule the Court tries to avoid disputes between the legislative and executive branches unless there seems no responsible way to avoid it. But the House would improve the odds of the Court taking this case by passing a resolution stating that its powers have been usurped in violation of the Constitution. This would prevent the Court from taking the easiest available escape route, as it did in the case of President Carter’s termination of the mutual defense treaty with Taiwan. There the Court declined to take a case brought by individual senators because the institution itself had not taken a position. Individual members of Congress do not have recourse to the Court just because they lose a vote, but the House does if its constitutional prerogatives have been violated. The House leadership should pass such a resolution.

Moreover, the Roberts Court’s decision on the constitutionality of Obamacare has positioned it perfectly to favor the merits of a House case. The Roberts Court saved Obamacare by finding that its mandates are a tax. What authority does the president have to alter taxes unilaterally? That is precisely what he did when he changed the sign-up period for individuals and twice deferred the employer mandates. If the president can unilaterally defer provisions like these—while making no claim of constitutional necessity—can he defer the individual income tax at will? What is the limiting principle?

Finally, the Court probably would not rule quickly on a case like this (it will not rule until June on the recess appointment case argued before the District of Columbia Court of Appeals on December 5, 2012). There is ample time to implement a broader strategy.

DEFUNDING THE IRS

This brings us to a third option, which rests upon the congressional power of the purse. House Republicans have already taken this course, when they voted repeatedly to repeal and/or defund Obama-care. How would one more House vote to defund Obamacare help?

Defunding is the right idea, but there is a better target than Obamacare if the object is to address presidential overreach. What House Republicans should seek to defund, in whole or in part, is the Internal Revenue Service. The IRS is the enforcement arm of Obamacare. Without the IRS there is no enforcement of the individual mandate, no basis for determining individual subsidies, and no enforcement of employer mandates. The central role of the IRS in Obamacare should be clear enough from one perverse fact alone: In order to improve health care delivery in America, Obamacare creates not thousands of new doctors and nurses, but thousands of new IRS employees. 

The president’s overreach could fairly be described this way: In delaying and deferring provisions of Obamacare, he has given an unlawful order to the IRS. One could imagine a parallel universe in which an IRS commissioner would resign rather than obey such an order. In the real world of Democratic politics, however, this can be neither hoped for nor expected. 

What the president has done with the IRS on Obamacare is of a piece with other actions of his administration. There have been many scandals, including Fast and Furious and Benghazi. Significant as these are, they pale beside the administration’s effort to politicize the IRS, which strikes at the heart of decent, limited government, as the president seems willing to admit hypothetically if not in fact. The targeting of conservative public interest groups is not the only misuse of the IRS by this administration. Numerous other instances of what seems to be the coordinated targeting of individuals by the IRS, the Justice Department, and the Labor Department exist. Be that as it may, if instructing the IRS not to enforce the law with regard to employer mandates is not an abuse of the IRS, it is hard to imagine what would be.

House Republicans should condition funding for the IRS in two ways. First, they should require the president to sign legislation enacting into law the steps he has taken by executive order regarding Obamacare. The president’s position here is incoherent: He claims to act via executive order because Congress won’t—but he vows to veto legislation passed by Congress to enact the very provisions in question. Is the president really asserting that he has unlimited power to alter and suspend laws and that Congress is superfluous?

Second, Congress should require the president to appoint an independent investigator to look into the IRS across the board, including its role in Obamacare and its targeting of both conservative public interest groups and individuals. The current internal investigation, headed by Obama campaign donor Barbara Bosserman, does not inspire confidence. Indeed, the president has already foreordained the outcome of this investigation by announcing there is not “a smidgen of corruption” at the IRS. Nor should it be too much to expect the president publicly to instruct not only the IRS but also the Justice Department and the Treasury Department to make available any and all emails bearing on these topics. This, after all, is the president who promised the most transparent administration ever.

The House should defund the IRS, in whole or in part, until these conditions are met and a degree of public confidence in the workings of the IRS is restored. In any event, all funding for new IRS employees to enforce Obamacare, many provisions of which have been delayed by the president, should be eliminated.

These steps would be opposed by the Democratic Senate and the president, but they would be widely supported by the American people. The IRS is not much loved by the public at any time; but a current Fox poll shows that 64 percent of Americans believe there is corruption at the IRS that should be fully and fairly investigated. What Harry Reid and the president would be defending in this instance is not the president’s signature health care legislation, but the Internal Revenue Service, a far more daunting task.

A QUESTION OF TIMING

Taking these steps would bring Washington once again to the brink of a government shutdown, about which Republicans are correct to be cautious. Republican leaders, hoping to recapture the Senate in the elections this fall, might decide not to rock the boat with a move to defund the IRS. They might be tempted to defer that step until 2015; after all, the president has provided one more year in which to undo the employer mandate. Republicans might prefer, as they did recently with the debt ceiling, not to take any step that could jeopardize their success in the November elections.

But a degree of courage is going to be required at some point to rein in the president’s excesses. It is not enough to defer action to an indeterminate future date. Republican leaders should ask themselves a hard question: What is it they will accomplish with control of the House and Senate that they cannot accomplish now? What are the actual steps and projects they would undertake in 2015 with a Republican-controlled House and Senate? How would they overcome the president’s vetoes, his bully pulpit, and the slavish devotion to him of the mainstream media?

There are no other arrows in the quiver. The Senate cannot and will not hold up the president’s nominees until he follows the law; Harry Reid has seen to that. Nor are additional oversight hearings likely to have greater impact than those already held. An action-forcing event like the defunding of the IRS is needed. Republicans should make a strong, bicameral stand on this, and they should explain it and defend it directly to the American people. There is nothing unreasonable about requiring Congress to legislate the precise provisions for delay and deferral that the president has already established by executive order, or requiring the president to launch a serious outside investigation of an organization thoroughly in need of it.

Republicans should embrace the idea of adding the IRS to their campaign themes this year. A strong campaign pledge to take on the IRS is a political winner for Republicans of all stripes. The president’s decision to address issues “by himself” will not disappear on its own. Indeed, the president is being urged on by Senator Chuck Schumer and others who seek openly to stifle conservative political speech through new politically motivated IRS regulations. The House has just passed a bill to rein in such regulations; with even some groups on the left concerned about IRS restrictions on political activity, strong pressure should be brought to bear on the Senate to do the same.

 

Once again, the IRS lies at the heart of the problem. The administration’s efforts will not abate if Republicans control both houses of Congress; indeed, they are likely to increase. We are heading toward a serious and necessary struggle over presidential overreach. The stakes are high politically and, more important, constitutionally. A measure of courage will be required to address them.

Jeff Bergner, adjunct professor at the University of Virginia and Christopher Newport University, has served in the legislative and executive branches of the federal government. His most recent book is Against Modern Humanism: On the Culture of Ego.

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