Abuse of Executive Power: When Is Enough, Enough?

Dr. David Mielke, Retired Dean of the College of Business at Eastern Michigan University

Dr. David MielkeSome have charged that President Obama has overstepped his constitutional authority 76 times, ranging from immigration, health care, banking, welfare, education, drug policy and more. He has done this through a series of executive orders. He has now asked all of the government departments and agencies to provide a list of additional executive orders. Has the President abused executive power or is he accomplishing what Congress is unable or unwilling to do? Is the President correct in describing the Congress as do-nothing, saying he won’t apologize for taking executive actions without Congress and daring the Republicans to “sue me.” What is the “Right Thing to do?” Should Congress sue the President in light of the recent Supreme Court decisions?

Let’s look at some issues:

1. Under the Constitution, Congress is supposed to create and amend laws and the President to faithfully execute them, but Some charge that President Obama has grabbed inherent Article 1 powers by suspending or rewriting statutes he opposes.

2. At the end of June the Supreme Court unanimously ruled that president Obama exceeded his authority in making temporary appointments to the National Labor Relations Board during a brief Senate break in 2012. The decision places in question the 436 rulings the board made in the 18 month period made by the recess appointees. At a news conference the day of the decision, Mr. Obama’s press secretary stated that the President is in no way considering scaling back his executive actions.

3. Last week, the Supreme Court declared that some corporations can be freed from following the parts of the birth control mandate in Obamacare and that home health care providers in California cannot be forced to pay union dues, a ruling that the President supported.

4. The President has usurped Congress with impunity because he assumes no one has the legal standing to sue him—thus his taunt to the Republicans.

5. In general, in order to sue, the plaintiff must allege that they suffered damages to have legal standing to sue. The concept of legal standing is the key as to whether or not Congress can in fact sue the President. The usual remedy that Congress has to deal with the administration is impeachment. This is certainly not an action that Congress will pursue.

6. In one notable case, Wisconsin Senator Ron Johnson is suing the White House over the Obamacare carve-out that provided special subsidies for Congressional members and staffers who were supposed to give up federal employee benefits to join the insurance exchanges. Mr. Johnson argues that because Congressional members must designate which staffs do and don’t participate, the rule imposes a nontrivial administrative burden, i.e., he has standing to sue because the rule harms his office, not because he is a US Senator. To the point, Mr. Johnson claims that the rule forces him to become personally complicit in law breaking and thus damages his political reputation.

7. David Rivkin, a Washington lawyer and Elizabeth Price Foley of Florida International University have studied the case law and believe standing can be obtained to sue the President conditional on 4 things:
a. The majority of one congressional chamber explicitly authorizes a suit.
b. That the lawsuit concerns an unambiguous provision of a law
c. That Congress cannot remedy the situation by simply repealing the law
d. That the injury amounts to nullification of Congress’ power.

8. As a result of this theory, John Boehner, Speaker of the House has announced his intention to sue the President.

It certainly makes sense to limit Congress’ ability to sue the President or there could be a constant stream of suits filed by one or two disgruntled members of Congress. However, the current administration has utilized executive actions in a broad array of circumstances affecting numerous laws passed by Congress. The recent unanimous decision was a stinging defeat for the President, but instead of backing off and trying to work with Congress he has adopted a defiant position, promising additional executive actions and in particular targeting immigration at a time we have significant problems on the border. He promised in his State of the Union speech this year to move forward without Congress by using his pen and his phone. He is making good on this promise.

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