President Obama, tired of waiting for Congress to act on immigration reform, is currently exploring ways to address issues with Department of Homeland Security Secretary Jeh Johnson.
Report: Boehner may announce that House is suing Obama for executive overreach as early as this week; Update: Announcement made
POSTED AT 11:21 AM ON JUNE 25, 2014 BY ALLAHPUNDIT
It’s been in the works for awhile. Tom Rice introduced a resolution back in December that would allow the House as a body to sue O for failing to faithfully execute the laws. By January, he had at least a dozen colleagues pushing the leadership on it. By February, there were 43 co-sponsors. I wrote about it at the time, noting that Rice claimed he had met resistance from at least one member of the House leadership who thought his bill seemed “radical.”
I wonder what changed.
Boehner told the House Republican Conference during a closed-door meeting Tuesday morning that he has been consulting with legal scholars and plans to unveil his next steps this week or next, according to sources in the room.Boehner spokesman Michael Steel said further action is necessary because the Senate has not taken up bills passed by the House targeting executive actions. The House has passed a bill expediting court consideration of House resolutions starting lawsuits targeting executive overreach and another mandating that the attorney general notify Congress when the administration decides to take executive action outside of what has been authorized by Congress.“The president has a clear record of ignoring the American people’s elected representatives and exceeding his constitutional authority, which has dangerous implications for both our system of government and our economy,” Steel said. “The House has passed legislation to address this, but it has gone nowhere in the Democratic-controlled Senate, so we are examining other options.”
Maybe Boehner figures that after all the sturm and drang of primary season, and with so much upset among the base over an amnesty that may or may not be looming, slapping Obama with a constitutional suit over his autocratic excesses on ObamaCare, DACA, etc, is just the trick to unify Republicans before the midterms. The mechanism for how they’ll bring the suit on behalf of the House isn’t quite clear yet: It might involve a vote of the House’s “Bipartisan Legal Advisory Group,” which consists of three Republicans and two Democrats, and/or a vote of the entire House, but either way the GOP has the numbers. The “legal scholars” Boehner’s been consulting with, incidentally, are almost certainly David Rivkin and Elizabeth Price Foley, who wrote an influential op-ed a few months ago about how the House might be able to use the courts to rein Obama in. George Will summarized their argument this way in his recent column about “stopping a lawless president”:
Courts, understandably fearful of being inundated by lawsuits from small factions of disgruntled legislators, have been wary of granting legislative standing. However, David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe that standing can be obtained conditional on four things:That a majority of one congressional chamber explicitly authorizes a lawsuit. That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’s power.
No problem on the first and second steps. No real problem on the fourth either: By unilaterally suspending major provisions of O-Care like the employer mandate, for instance, Obama’s obviously nullifying duly enacted federal statutes. The sticking point, I think, will be the third step. Congress could, in theory, undo all of Obama’s executive orders by overriding them with a two-thirds veto-proof vote of both chambers. The fact that there’s no chance of that happening because the Senate is controlled by Democrats might be cited by courts as proof that this is really a political question, something to be settled by voters rather than by judges. Will pushes back hard against that in his piece, arguing that it can’t be the case that courts will bless repeated separation-of-powers violations simply because one party and a comatose electorate are happy to look the other way at them. Hopefully not, but if the Rivkin/Foley approach is adopted by SCOTUS, it might lead to one or both chambers of Congress routinely suing the president for all but the most pedestrian executive actions. That’s not a bad outcome if you’re a fan of redistributing a little power from the executive branch to the legislative, but federal judges might get fidgety at the thought of being sucked into the middle of it.
The hard thing here for the GOP, though, isn’t the legal battle but the political battle. Like I said when I wrote about this in January, they’re essentially betting that there’s enough of a civic reservoir among the public that Republicans won’t be punished if they win this suit and Obama is forced to cancel his executive DREAM amnesty or to apply the nastier provisions of ObamaCare that he’s suspended so far. O’s going to go to voters and say, “I tried to help you by protecting you from bad laws. Republicans wouldn’t let me.” The GOP’s going to then turn around and say, “What he was doing was unconstitutional. Case closed.” Knowing American voters as you do, which approach do you think they’ll be more receptive to, the bottom-line one or the constitutional one? This is why Boehner held off until now on suing, of course — because he has a sneaking suspicion he wouldn’t win that public opinion battle, even though he should. By filing this suit only a few months before the midterms, maybe he’s counting on it being tied up in court long enough that he won’t have to worry about the outcome until after the votes are in.
Update: That didn’t take long.
Ted Cruz: If Holder won’t appoint a special prosecutor for the IRS scandal, he should be impeached
POSTED AT 6:01 PM ON JUNE 26, 2014 BY ALLAHPUNDIT
Via the Free Beacon. Alternate headline: “He’s running.”
His staff tipped NRO earlier this afternoon to the fact that he’d be introducing this resolution, and now here it is:
“When an Attorney General mocks the rule of law, when an Attorney General corrupts the Department of Justice by conducting a nakedly partisan investigation to cover up political wrongdoing that conduct by any reasonable measure constitutes high crimes and misdemeanors,” said Cruz. “Attorney General Eric Holder has the opportunity to do the right thing. He could appoint a special prosecutor with meaningful independence who is not a major Obama donor.”The donor Cruz is referring to is Justice Department prosecutor Barbara Bosserman, who has given $6,750 to the Democratic Party and President Obama over the past ten years, according to the Washington Post. Bosserman has been chosen to lead the Justice Department probe into the IRS.
Why impeach Holder instead of Obama? Because, I guess, it’s more politically salable. Impeach O and the electorate will blow up, with unpredictable results in November. That’s not a move you make if your party’s cruising towards some big wins. Impeaching Holder, or the IRS officials responsible for the apparent cover up, is less risky. Liberals will get mad but conservatives will be happy and people in the middle won’t care much, so maybe it’s a wash at the polls. He’ll be acquitted by the Democratic majority in the Senate too, of course, so there’s no chance of him actually being removed from office. Best-case scenario is that he decides he’s tired of fighting with Republicans and decides to step down voluntarily so that Dems aren’t forced to spend two months defending the IRS on camera. But that’s not Holder’s style. He’d fight and he’d win, his hackish incuriosity about the conveniently missing IRS e-mails (despite a $4.4 billion IT budget!) notwithstanding. What then?
This reminds me a little of the “defund” effort, actually, insofar as Cruz is encouraging the House to do something bold knowing he hasn’t a prayer of getting the Democratic Senate to play along. If they take his advice and impeach Holder, great. He can take credit among righties for having introduced the idea, regardless of what happens in the Senate. If they decline to impeach Holder, great. That just proves his point that Congress needs more principled conservatives in charge of both chambers. I assume it’s no coincidence that he’s introducing this the day after Boehner announced that the House will sue Obama for executive overreach. Lawsuits are all well and good, but only a squish would run to the courts for relief when he has it in his institutional power to remove an offending executive branch official himself. Republicans want bold colors, as Cruz is fond of saying, not pale pastels.
Breaking: Supreme Court unanimously rejects Obama recess appointments
POSTED AT 10:22 AM ON JUNE 26, 2014 BY ED MORRISSEY
The Supreme Court dropped a huge bomb on the Obama administration,unanimously rebuking the President for arrogating to himself the determination of when Congress is in session for the purpose of making recess appointments. According to reports on the opinion, the court may have taken a middle path on what a recess actually is, toning down one appellate court ruling that only allowed for recess appointments between formal sessions:
The US Supreme Court today limited a president’s power to make recess appointments when the White House and the Senate are controlled by opposite parties, scaling back a presidential authority as old as the republic.The case arose from a political dispute between President Obama and Senate Republicans, who claimed he had no authority to put three people on the National Labor Relations Board in January 2012 when the Senate was out of town.He used a president’s power, granted by the Constitution, to “fill up all vacancies that may happen during the recess of the Senate.” But the Republicans said the Senate was not in recess at the time the appointments were made, because every three days a senator went into the chamber, gaveled it to order, and then immediately called a recess.By a unanimous vote, the Supreme Court agreed that the Senate was not in recess, holding that it’s up to both houses of Congress to define when they’re in session or in recess. As a result of the decision, the Senate can frustrate a president’s ability to make recess appointments simply by holding periodic pro forma sessions, a tactic used in recent years by both political parties.
According to NBC’s Pete Williams, the opinion provides a timeframe for Congress and the White House to follow in the future: