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How to Check the President
Many today are discussing the constitutionality of President Obama’s order to defer deportations. In a study published in 2012 in Texas Law Review, my co-author Robert Delahunty and I explained why such an order would violate the President’s duty to enforce the laws.
But I think the more important question now is how to oppose President Obama’s orders. Here are some ideas. Will these work? Are there other ideas?
Published in GeneralAlthough Obama’s deportation-deferral program violates the president’s duty to enforce the laws, the Constitution does not set out any obvious paths for resistance. The Constitution does not specifically set out the immigration power itself, only a power of naturalization, which it vests in Congress. The Supreme Court, however, has long recognized that control over the borders and immigration lies in Congress’s hands, not the president’s. To restore the Constitution’s separation of powers, critics will have to avail themselves of a variety of responses, some of which are less politically feasible than others.
Our Founders established three primary mechanisms to control an unconstitutional government. The first was the power of impeachment. The Clinton affair focused on whether perjury fell into the Constitution’s impeachable offenses: “Treason, Bribery, or other high Crimes and Misdemeanors.” Clinton’s defenders made a good point that this provision seemed to limit impeachment to the president’s public performance of his job. At the time of the Constitution’s writing, the British Parliament had used impeachment to remove ministers not just for constitutional disputes, but for incompetence and failure in office, such as losing a battle or a war. The Framers would have had no problem concluding that the president’s refusal to carry out his constitutional duties amounts to an impeachable offense.
The problem with impeachment is not its constitutional availability, but its political viability. As the Clinton affair teaches, Congress should not embark on impeachment unless it has the votes to convict. The House may vote to impeach — essentially a decision to prosecute — but the Senate must agree by a two-thirds vote to remove the president. Even with their stunning victories in this month’s midterm elections, Republicans have nothing approaching 67 votes in the Senate. Not only will impeachment fail, but as with Clinton, it will likely redound to Obama’s political benefit. Congress could always censure the president, as it considered during the Clinton affair. That could be a stinging rebuke, but it would have no practical effect on Obama’s order or his unconstitutional exercise of power.
The second, more promising, route is the power of the purse. Responding to the criticism that the Constitution made the president a potential dictator, James Madison declared in the critical Virginia ratifying convention that “the sword and the purse are not to be given to the same member.” Comparing the U.S. Constitution to the British, he said, “The sword is in the hands of the British King; the purse in the hands of the Parliament. It is so in America, as far as any analogy can exist.”
Opponents in Congress should immediately turn to the funding power. They need not aim for a complete government shutdown, which proved disastrous for the Republican party last year. They should use funds as a scalpel, not a sledgehammer. Congress could increase funds for border and immigration-control officers and cut them for higher management and legal advisers in the Department of Homeland Security and the Justice Department. It could separate the DHS appropriation from the overall federal budget and take a stronger hand in reorganizing and downsizing the department. It could refuse to cooperate with the Obama administration on any new funding proposals in other areas unrelated to immigration, and it could ignore the administration and spend more funds on national security.
Republicans should combine funding cutoffs with the usual tools of oversight to paralyze the Obama administration for the next two years. It could hold hearings where Obama officials face tough questions and conduct investigations into the performance on immigration, border, and national security. The Senate could refuse to confirm any Obama nominees for executive or judicial positions. It could refuse to approve any treaties or international agreements. President Obama should expect that his proposals in any area will be dead on arrival in Congress.
A third means for relief for unconstitutional government puts Republicans in a tough spot. Americans’ first reaction to a violation of the Constitution is to go to court. The problem is that of standing, which requires that a plaintiff have suffered an “injury in fact” that is traceable to the government’s action and for which the court can order a remedy. Conservatives such as Justice Antonin Scalia favor standing because it makes sure that federal judges are deciding real cases and controversies, as required by the Constitution, and not using lawsuits as an excuse to make social policy. When the president refuses to enforce the law, plaintiffs will have difficulty hurdling the standing bar, because all citizens may be harmed, but no individual American is uniquely harmed enough to bring suit.
Here, however, recent precedents point the way to a viable lawsuit. In Massachusetts v. EPA (2007), a state sued the Bush administration for failing to issue regulations controlling the emissions of greenhouse gases. Standing should have stopped Massachusetts from forcing the president to enforce its understanding of the Clean Air Act. But with the liberal Justice Stevens writing, the Court held that Massachusetts had standing because, some day, the rising seas caused by global warming might reduce the state’s coastline.
We consider the Court’s finding of injury to be tenuous, if not laughable. But if Massachusetts enjoys standing because of the rising seas, a state today must have standing to challenge the non-enforcement of the immigration laws. States, especially those along the nation’s borders, will expend more money and resources on the illegal aliens in their jurisdictions. They will have to spend more on police and social services, such as education and health care. Just as Massachusetts could sue to force the Bush administration to enforce its preferred understanding of the Clean Air Act, so states today should be able to sue to force the Obama administration to enforce the immigration laws. In the 1990s, the state of California sued the Clinton administration for failing to enforce the immigration laws under a similar theory. While the case never made it to the Supreme Court, the lower courts did not reject the case for lack of standing (though they did dismiss it because California founded its case on the U.S.’s responsibility to protect the states from invasion).
All of this will take time, of course, on multiple fronts. But Republicans should not forget the ultimate check on a president: the next president. Any unilateral executive non-enforcement decision, no matter how sweeping, is fleeting. Because orders like these are based on a president’s decision how to exercise (or not) his constitutional powers, the next president can undo it on his first day in office. A new president could take the list of illegal aliens who have applied for Obama deferrals and order them deported. A new president could order enforcement actions brought against any business that hires aliens under Obama’s work permits. It will take winning the 2016 election to ultimately undo the harm that President Obama has inflicted on the Constitution, and it is to that goal that Republicans should immediately turn.
The power of the purse seems like a difficult tool to use in this circumstance. That is, by definition it’s impossible to directly defund something the president refuses to do. So the proposed solutions become a convoluted form of budgetary harassment.
As an aside, this is an odd statement: “They need not aim for a complete government shutdown, which proved disastrous for the Republican party last year.” You mean the disaster that culminated in the Republicans taking the Senate? (I’m not recommending we go down that path, but just sayin’.)
Of course, no presidential hopeful could survive the political consequences of proposing such an approach. It’s the kind of thing that would be easier done than said.
I have been pitching that line (thus forgoing any possibility of a presidential run) here on Ricochet in an indirect form. I would like to see large numbers of potential amnesty applicants themselves recognize the downside risk in following Obama’s lead. That could do much to undermine Obama’s program.
But how would such a message be disseminated? It would require a non-politician with a big enough megaphone to get the message out without bringing down media wrath upon Republicans in general. Who? I don’t know.
I like the idea of a lawsuit, and I like the idea of giving Obama nothing until he rescinds his decision to refuse to enforce the law.
I agree with Dr. Rahe. The reading I have done of late about Obama creates an image of a red-diaper baby spoon fed on socialist pap though his childhood. Like most progressives he is concerned with the ends and does not consider the means out of bounds so long as they achieve his ultimate goal. He needs to be stopped at whatever cost is necessary. Sue him and his administration. Refuse to confirm anyone he chooses to appoint to office. Cut off any funds which are not necessary to keep the government running. Does anyone believe that Harry Reid and Nancy Pelosi would not do the same thing if the situation was reversed? It is time to make Obama and the Democrats pay.
How about we check the President with a hip into the far boards. Would that help any?
His decision to issue work permits is the part that strikes me as the least justifiable. I mean, not enforcing the law against a defined category of people is obviously different from my understanding of “discretion,” but that’s a matter of stretching logic. The act of issuing a work permit to someone who is prohibited from getting it seems to be an active violation of the law, not just a refusal to carry it out.
I’d rather not go for impeachment, because I think we shot our wad a decade and a half ago. I supported it then, but now I’m regretting it, because this is clearly a much better case for impeachment. But if we go for impeachment over this, it looks like we’re simply out to impeach the opposition every time they’re elected, and I hate government-by-scandal. In the history of the Republic, we’ve had just two presidential impeachments. I’d really rather not have us do two in a decade and a half. You *know* the Democrats would look for any excuse to do the same in return, and then politics would be even worse than it is already.
I think the other checks the Legislative has on the Executive would be better to use. I don’t want to run to the Judiciary to settle disputes between the other two branches. So is defunding viable? Maybe defunding the ability to issue work permits is the best angle.
How fine grained is Congress’s budgetary power?
Perhaps we could start by not paying the White House’s electric bill. A few days sitting in the dark might bring him around.
One of the worst features of this imbroglio is the absence of any plan. I see no indication that the putative leaders of the congressional Republicans have any idea how to proceed.
It may have been discussed elsewhere on Ricochet but what about the idea started at Ace of Spades and picked up by Mark Steyn at his site: don’t invite Obama to give the SOTU to a joint session of Congress?
The Constitution only requires a report to Congress and it was done in writing until Woodrow Wilson seized the opportunity to turn it into a speech. Truman, Eisenhower and Nixon did it in writing.
Obama has usurped the authority of the legislative branch of the the U.S. Government with his imperial decree on immigration.
I just emailed my Congressman to urge him to do the non-invitation. He is a member of the House (Republican) leadership, so if enough people bug the House leadership and not just Speaker John Boehner, maybe this could gain some momentum.
The fight to restore constitutional government has to start somewhere.
Well there’s always taking up arms in defense of the now useless Constitution.
Or give him the Black Rod treatment. It’s British and it’s pertinent.