Rep. Randy Forbes (R-VA04) is a reliably conservative voice of reason in the House of Representatives, and, as an attorney, represents Constitutional principles on the House Judiciary committee, which makes the latest legislation he’s cosponsoring bewildering.
Forbes is cosponsoring, along with Rep. Scott Rigell (R-VA02) and Rep. Bob Goodlatte (VA-06), the ENFORCE the Law Act of 2014, which, in effect, allows either the House or Senate to bring a lawsuit against the Executive Branch if the president is not faithfully executing his duties under the Constitution.
Is this not what Articles of Impeachment are for as drafted by the House of Representatives? Wouldn’t a president who is willfully failing to perform his duties constitute high crimes and misdemeanors?
In looking at this proposal, a whole gaggle of questions arise, such as:
* Is there really a necessity to tinker with the current checks and balances as enumerated in the Constitution?
* What are the ramifications of passing such a law when there may be later a different power arrangement in DC (Dems control the Senate with a GOP president, etc.)?
* Doesn’t this weaken the House as being the sole body of bringing Articles of Impeachment?
* If the president truly isn’t faithfully executing his duties, does that not rise to high crimes and misdemeanors by ignoring his oath? Wouldn’t a law suit lessen the gravity of the situation?
* And, if such a law were enacted, would it even pass SCOTUS muster?
“The ENFORCE the Law Act aims to restore checks and balances, not change this essential structure of our federal government. Allowing a co-equal branch of government to check another branch’s constitutional failure is exactly what the checks and balances system calls for and thus is a fulfillment of the checks and balances system not an aberration from it,” wrote Hailey Sadler, Forbes Press Secretary via email. “If Congress passes legislation through constitutional means, and the President chooses not to enforce or to selectively enforce the law, then it is appropriate that the courts should adjudicate. The bill is intended to address procedural hurdles regarding standing the courts have put in front of previous attempts by individual Members of Congress, and ad hoc groups of Members, to seek judicial review of alleged failures by the President to faithfully execute the law.“
Given the level of frustration from members of the House regarding the president’s behavior, it’s no surprise they want to do something to reign in that abuse of power.
It is clear that this president is willing to skirt the system and do whatever he wants by executive fiat. The president said he’d prefer to use the pen and the phone to work around Congress and get what he wants done – that’s certainly not something that passes Constitutional muster. And, the president has refused to enforce Acts of Congress that he disagrees with for policy reasons, while also stretching his regulatory authority to put in place policies that Congress never enacted.
For example, the president has demonstrated his failure to faithfully execute his office by delaying the employer mandate in the healthcare law; instituting a policy of deferred deportation for certain individuals; waiving the work requirements under the welfare reform law; reducing prosecutions of low-level drug offenders under mandatory minimum sentencing laws; and making appointments when the Senate was not in recess. The Constitution grants Congress, not the President, the power to make these decisions.
So, yes, the president is indeed out of control…but that’s just the point. The Constitution already provides mechanisms for checks and balances of the president. And, my personal concern is if in, say, 2020, in perhaps the second term of a Republican administration, what will happen if they face a similarly disgruntled Democratic majority in the Senate? What would stop them from suing at every corner and tossing every decision to the judiciary? A liberal judiciary.
Our founders didn’t give the Senate that sort of power to bring a president to heel – that’s Constitutionally reserved to the House of Representatives and then for the Senate to try the wayward executive. However, Sadler tells me that impeachment just can’t be the only option.
“This legislation does not change impeachment power. Rather, it is a step that can be taken as a facet Congress’ oversight responsibilities and investigative powers. Other examples of legal steps that can be taken in this context include issuing subpoenas or holding officials in contempt,” she wrote.
It’s clear that frustration with the administration is building…and with the president’s recent 41 percent approval rating – a new low…Republicans are begging for some break in the gridlock and action to be taken for the benefit of the country.
“There are nearly 200 House-passed bills being blocked in the Democratic Senate,” Majority Leader Cantor lamented today. “Nearly 200 of them. Many of them overwhelmingly bipartisan. Many of them sponsored by House Democrats. And many of them of focused on creating jobs, growing wages, and creating opportunity for all. You would have to ask: isn’t it about time the Senate starts to work?”
Indeed, the Senate should get to work instead of having these good bills stymied by Harry Reid and Mark Warner.
So, it’s easy to see the frustration in the House. But tinkering with the Constitution and altering how the checks and balances work because of that frustration and a desire to do something? Is that really a good plan in the long run?
This is probably one of those instances where you should be careful what you ask for.
The reality is that this legislation might pass the House, but it stands no chance in the Senate or of being signed by the president. It is meant to send a message.
The question is, will the president heed it?
Update: Majority Leader Eric Cantor has also delivered remarks in favor of the bill.
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“I thank Chairman Goodlatte from Virginia and I thank him for his leadership on this effort. Mr. Chairman, I rise today in support of the ENFORCE the Law Act.
“Our Founders created a series of checks and balances for our democracy to prevent any one of the three branches of government from becoming too powerful. This separation of powers has always been one of the most important pillars of our political system and an example of good governance for the world to follow.
“For over 200 years, America has prospered because we adhere to a Constitution that makes each branch’s role explicitly clear: the elected representatives in Congress pass laws, the President faithfully enforces them, and an independent judiciary adjudicates disputes. This lesson is so important that we teach it to our schoolchildren and articulate it to our citizens so they understand the rules of the road.
“When we fail to uphold this system, and one branch of government begins to tip the scales of power in its favor, we descend towards chaos. Today, we are seeing this system break down.
“This Administration’s blatant disregard for the rule of law has not been limited to just a few instances. From gutting welfare reform and No Child Left Behind requirements, to refusing to enforce immigration and drug laws, the President’s dangerous search for expanded powers appears to be endless. Whether one believes in the merit of the end goal or not, this is not how the executive branch was intended by our Founders to act.
“These actions not only weaken the credibility of our political institutions, they also threaten our chances of returning to a time of robust job growth by creating uncertainty in the economy. This has become most evident with the implementation of the President’s disastrous health care law that is wreaking havoc on small businesses, wreaking havoc on wage earners and working families. Even the Washington Post ran a story this weekend detailing how arbitrary changes to ObamaCare are creating mass confusion for consumers. Our constituents deserve better.
“Steps taken by this Administration show they don’t care for the rule of law or the balance of powers designed by our Founders. The only way to re-establish the intent of our Constitution is to create a process by which either Chamber can take the matter to court, which is what this legislation does. It goes hand-in-hand with the Faithful Execution of the Law Act, which we’ll consider later today. That bill requires the Administration to tell Congress when they’ve decided they don’t like a law and are refusing to do their constitutional duty and enforce it.
“These bills are not just about President Obama. What if future Republican presidents decide they don’t like the tax increases enacted by Democrats in Congress or a past Democratic President? Can that president just refuse to collect those taxes or resist enforcing laws they don’t like? No.
“Any future President must work with Congress to seek changes in laws that need to be reformed. As James Madison said, ‘To see the laws fruitfully executed constitutes the essence of the executive authority.’
“We have an opportunity today to stand together in a bipartisan manner and put mechanisms in place to prevent the executive branch from continually abusing its power and they will remain in place no matter which party controls the White House. Let us pass this legislation and show the American people that we are committed to a government that functions the way it was intended to within the framework of our Constitution.
“I would like to thank Chairman Goodlatte, Representative Gowdy, Representative DeSantis, and the rest of the Judiciary Committee who have worked so hard on this important issue and I strongly urge my colleagues in the House to support the bill.”
