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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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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.


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.


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. 

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