House Republicans claim President Obama is not doing enough to enforce the laws Congress has passed, and today and tomorrow, they intend to do something about it.
On Wednesday, they passed a bill that gives each chamber of Congress standing to sue the White House over failure to enforce federal laws, with five Democrats joining all Republicans in a 233-to-181 vote. On Thursday, they will take up a bill that would require the Justice Department to inform Congress when the White House is not going to enforce a particular law, and to explain why.
As a practical matter, the bills will never become law. Neither will get past the Democrat-controlled Senate. But they involve a serious claim against a president: that the person constitutionally charged to “take care that the laws be faithfully executed” is, by implication, a lawbreaker. It is also a congressional complaint not unique to this president and begs the questions: Well, is he an enforcement slacker compared with other presidents?
The complaint against Mr. Obama involves “Congress and their belief in the sacrosanct nature of the law, and the president saying there’s a lot of latitude that he has a right to exercise,” says Ross Baker, a congressional expert at Rutgers University in New Brunswick, N.J.
The most often raised criticisms about Obama and the law are:
- He is applying the Affordable Care Act willy-nilly – instituting a series of delays and other changes in the way the law works.
- He is not adequately enforcing deportations in the interior regions of the country, and, more importantly, that he’s segmenting off a special portion of the population – children of illegal immigrants – for delayed deportation
- He is not consistently enforcing federal marijuana laws.
- He refused to legally defend the Defense of Marriage Act (DOMA) earlier in his presidency.
Obama rejected DOMA, which disadvantaged homosexual unions, on constitutional grounds. His administration followed the proper procedure by notifying Congress of its constitutional objection. Indeed, the Supreme Court ruled the key provision of the act unconstitutional in 2013.
The implementation of Obamacare and drug laws may be vexing and cause confusion, but, says Louis Fisher, an expert on the separation of powers, “the idea that a statute can actually control every part of implementation is very unrealistic. Statutes are pretty general.”
His concern is with Obama’s special exception for the deportation of children of illegal immigrants. “That’s making law by yourself. That’s disturbing.”
He judges Obama to be “sort of in the middle” of presidents who buck congressional authority.
Some presidential scholars name Richard Nixon as the most egregious nose-thumber in recent history of laws passed by Congress. In 1972, he vetoed the Clean Water Act, and when Congress overrode his veto, he refused to spend all of the money allocated for it, impounding half of it. The issue eventually got to the Supreme Court, and in Train v. City of New York (1975), the court ruled that the president had “no authority” to withhold funds, and that he “cannot frustrate the will of Congress by killing a program through impoundment."
Many presidents, however, had used impoundment previously.
Another way presidents have registered their displeasure with laws is through “signing statements.” These statements, issued at the signing of legislation, reflect a president’s views of the bill, and, in many cases, his complaint about it – a signal that it won’t be a priority or will be ignored. Since President Reagan, Bill Clinton has issued the most signing statements, but George W. Bush – by far – issued the greatest percentage that contained some type of challenge or objection.
President Bush used signing statements “in an aggressive way to imply that he might not faithfully execute more than 1,000 provisions of statutes,” writes James Pfiffner, a professor and presidential expert at George Mason University in Arlington, Va. A famous case: that Bush might not execute Sen. John McCain’s amendment outlawing torture that was attached to a defense authorization bill in 2005.
Of course, politics play a role in the GOP complaints coming to a head this week. Republicans criticize the president for not implementing Obamacare, yet they want to repeal it. And they point to the president’s lack of enforcement of immigration laws as reason not to trust him on immigration reform, even though many support the concept behind his delayed deportations – the so-called DREAM Act.
It's “an excuse” to not pass reform this year, says Stephen Wayne, a presidential expert at Georgetown University.
Even if a bill giving both chambers standing to sue the White House became law, says Mr. Fisher, most courts wouldn’t take the case. Congress already has the tools to work out its power disputes with the president: hearings, legislation, subpoenas, the purse – and in worst cases, impeachment. A court would simply say, “You’ve got remedies of your own. Don’t bother us.”