Jul 14, 2014, Vol. 19, No. 41 • By TERRY EASTLAND
On a wide range of matters, including health care, energy, immigration, foreign policy, and education, says House speaker John Boehner, President Obama has ignored some statutes completely, selectively enforced others, and at times created laws of his own, thus failing to “take care that the laws be faithfully executed,” as Article II of the Constitution requires of a president. Indeed, by his “aggressive unilateralism,” as Boehner puts it, Obama has shifted the “balance of power” in favor of the presidency at the expense of Congress, the body that under the Constitution is responsible for making the laws.
This shift, occurring “decisively and dangerously,” says Boehner, violates a basic structural principle of the Constitution—the separation of powers. Now Boehner has announced what he plans to do about it: in a word, sue. That is, have his chamber sue the president for failing to take care that the laws are faithfully executed.
Boehner is right to complain about Obama’s serial executive power abuses. But litigating the take-care clause is an idea that the speaker should reconsider.
From the beginning of the republic to the present, only people whose concrete, personal interests have been damaged by an alleged failure to faithfully execute the laws have been accorded “standing” to have their cases heard in a federal courtroom. Boehner wants standing conferred on the House if its powers are impaired by some alleged failure on the part of a president to faithfully execute the laws. Toward that end, Boehner aims to limit the situations in which the House would sue to those in which no private party is challenging the alleged failure to execute the laws; a majority of the House votes to authorize the suit, thus demonstrating the “institutional” injury; no legislative remedy is available; and the only recourse is the courts.
Boehner has not specified which of the president’s executive actions the House will challenge first in its effort to sell the courts on institutional standing. But if Boehner and his House colleagues succeed in persuading the judiciary to open this door to judicial review, even by a crack, it is likely over time to be opened further, even to the point that the president is granted standing to bring separation-of-powers lawsuits against Congress.
Last year Justice Scalia had occasion to address that prospect. “If Congress can sue the Executive for the erroneous application of the law that ‘injures’ its power to legislate,” he said, “surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that ‘injures’ the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations.” Scalia added, “The opportunities for dragging the courts into disputes hitherto left for political resolution are endless.”
Government by judiciary is not exactly what the Framers had in mind. And it would be ironic indeed if conservatives, who once routinely defended standing as
a key doctrine of the separation of powers, now initiated a process that wound up significantly enlarging the role of the judiciary in the structural aspects of government.
With the current president, it is important to ask what litigating the take-care clause would actually accomplish. Assume that a court finds President Obama in violation of his take-care obligation. Then what? As the legal writer (and former federal prosecutor) Andrew McCarthy has pointed out, “law enforcement is a plenary executive power, and thus any court judgment against Obama would have to be enforced by . . . Obama.” Of course, there is no reason to think Obama would do that. And so nothing will have changed. Obama knows this perfectly well. The other day, he offered his defiant response to Boehner: “Sue me.”
The better course for the House would be to work against Obama’s unilateralism with tools already in hand, which are necessarily political ones, and which by the design of the Framers actually force confrontation between the elective branches: the result of “ambition counteracting ambition,” as Madison put it in Federalist 51. In particular, the House could exercise its legislative, oversight, and appropriations powers more strategically. Regarding the latter, the House could vote to cut or quit funding parts of the government where faithful execution has been lacking—the IRS, which enforces key elements of the health care law, being at the top of that list.
Meanwhile, there are elections. There are always elections. They are especially important today because the country remains sharply divided politically. That basic fact explains our divided government in Washington. And it underscores the need for developing and articulating a conservative agenda that can win both the presidency and Congress in 2016. That ought to be a more urgent priority for House Republicans than the dubious project of taking Obama to court.
In government contracting, some are more equal than others. Jun 16, 2014, Vol. 19, No. 38 • By TERRY EASTLAND
In our episodic “national conversation about race,” perhaps it is time to take notice of Rothe Development Corporation of San Antonio, Texas, which, you could say, has been having its own conversation about race—in the federal courts. Rothe is a government contractor that has now brought two lawsuits challenging racial preferences in federal contracting, winning the first, which was filed in 1998 and decided in 2008, and hoping, of course, to win the second, which was filed in 2012 and could go to the Supreme Court while President Obama is in office.
Terry Eastland, Southern fried chicken manJun 9, 2014, Vol. 19, No. 37 • By TERRY EASTLAND
I happen to like fried chicken. I like just about everything about it. I like being in the store and looking for the right chicken. I like cutting up the chicken, and then preparing the pieces for frying, and then frying them in the big pan we use for that purpose. And I like eating my portion. I can’t say I like disposing of the grease, a messy business, but then the meal I’ve just eaten has usually been worth it.
Hosted by Michael Graham.11:00 AM, Apr 24, 2014 • By TWS PODCAST
THE WEEKLY STANDARD Podcast with executive editor Terry Eastland on the recent ruling by the supreme court in Schuette v. Coalition to Defend Affirmative Action.
The Senate minority leader seeks majority opinions. Apr 28, 2014, Vol. 19, No. 31 • By TERRY EASTLAND
"This is the best Supreme Court, if you’re interested in a free society and in the ability of Americans to participate in the political process with a minimum amount of government restrictions. In fact, this is a great Supreme Court.”
Of course, President Obama, this great Supreme Court’s greatest scold, didn’t say that. Senate minority leader Mitch McConnell did, in an interview last week in the wake of the Court’s decision in McCutcheon v. Federal Election Commission (FEC).
The B&A Podcast is hosted by Philip Terzian.4:45 PM, Mar 18, 2014 • By TWS PODCAST
THE WEEKLY STANDARD Books & Arts Podcast with Philip Terzian, on the March 24, 2014 issue of the magazine's B&A section. Joining him is executive editor Terry Eastland, to discuss his recent review, Ordeal by Congress, which was a memoir by Judge Leslie Southwick on his road to confirmation to the federal bench.
The human cost of advice and consent. Mar 24, 2014, Vol. 19, No. 27 • By TERRY EASTLAND
Leslie H. Southwick of Jackson, Mississippi, is (or rather, was) “the nominee,” and here provides an account of his quest to become a judge on a particular federal court, the U.S. Court of Appeals for the Fifth Circuit, which sits in New Orleans. President George W. Bush nominated him to that court in January 2007.
The coming war over presidential appointmentsFeb 24, 2014, Vol. 19, No. 23 • By TERRY EASTLAND
President Obama and Senate Democrats have gone to great lengths to secure the appointment of executive-branch officers and judges and thus help advance his policies and programs. Obama has made recess appointments in a way no president before him did, an action now being challenged in National Labor Relations Board v. Noel Canning, which offers the Supreme Court the first occasion in its long history to opine on the until-now obscure recess appointments clause.
Jan 27, 2014, Vol. 19, No. 19 • By TERRY EASTLAND
Under our Constitution, a government agency may not act beyond the authority given it by Congress. Indeed, as the Supreme Court has said, “an agency literally has no power to act . . . unless and until Congress confers power upon it.”
The principle is basic, but in a significant matter the Department of Housing and Urban Development under President Obama has ignored it, to say no worse. Fortunately, a lawsuit now moving forward in the nation’s capital promises to compel the agency to quit its conspicuous overreaching.
The (legal) case against Obamacare.Dec 23, 2013, Vol. 19, No. 15 • By TERRY EASTLAND
The biggest political story in our domestic politics since 2009 has been, as it will be for the foreseeable future, health care. One part of this story is ripe for telling now: the constitutional challenge to the Affordable Care Act (ACA)—also known as Obamacare. That effort, you’ll recall, came in a series of lawsuits that few legal experts thought had much chance of succeeding. But victories in the lower courts led to new appraisals and a growing sense that, in the Supreme Court, the challengers just might win.
Another case of federal overreach. Dec 16, 2013, Vol. 19, No. 14 • By TERRY EASTLAND
A question: Are Texas and all its agencies and local governments breaking the law? The answer is that they probably are, according to the Obama administration and its Equal Employment Opportunity Commission. But the Texas attorney general, Greg Abbott, isn’t waiting for the EEOC to investigate and bring charges. Last month, in a preemptive strike, he sued the commission. The case is Texas v. EEOC.
Rob Astorino, successful New York Republican Dec 2, 2013, Vol. 19, No. 12 • By TERRY EASTLAND
On November 5, Republican Rob Astorino was reelected executive of upscale Westchester County, which lies directly north of New York City, between the Hudson River and Long Island Sound. Back from a week of postelection beachifying in Puerto Rico, Astorino is already thinking about running for office again—next year, for governor, against the incumbent Democrat, Andrew Cuomo, who intends to seek a second term.
Hosted by Michael Graham.6:00 AM, Jul 7, 2013 • By TWS PODCAST
WEEKLY STANDARD executive editor Terry Eastland reviews the Supreme Court's decisions in Fisher v. University of Texas, United States v. Windsor, and Hollingsworth v. Perry.
Terry Eastland, sweet and sour stalker.Jun 17, 2013, Vol. 18, No. 38 • By TERRY EASTLAND
My wife says the only thing I’ll plant is what I can eat. Not entirely true, I tell her. I point to certain things I’ve planted: the cluster of yellow iris in the side yard, the bunch of white iris in the backyard, and the large spread of irises of many colors in the front yard, under the crape myrtle.