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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. 


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. 


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.

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