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Upholding the Law
Redacted from a much more detailed article
BY JEFF BERGNER
The Weekly Standard
May 10, 2014
Many Republicans—and a handful of independent commentators like George Washington University professor Jonathan Turley—have been highly critical of President Obama’s executive branch overreach. The president has arbitrarily delayed, deferred, or ignored provisions of numerous laws — none more so than his signature Obamacare legislation. There is indeed much to criticize; no other president in recent times has usurped congressional lawmaking powers to the extent Barack Obama has.
Administration spokesmen have defended these actions by pointing out that other presidents have also issued executive orders. But President Obama’s actions are less like executive orders in the usual sense of the term than they are like legislation. Nor are they based upon a constitutional argument that the president must act in response to a Congress that has intruded into areas that are properly under his constitutional authority. These actions are the pure assertion of an unconstitutional presidential power to make law. What is needed now, however, is not further criticism, but a careful and sober consideration of what Congress can do to address this burgeoning constitutional crisis.
We should be clear: When we ask what Congress should do about it, we are really asking what congressional Republicans should do. Senate majority leader Democrat Harry Reid has demonstrated that he will not defend the institution of the Senate but will defend whatever President Obama does. Harry Reid was once an opponent of George W. Bush’s recess appointments, calling the Senate into pro forma session every three days to prevent them; Reid turned on a dime to support President Obama’s decision to ignore the very Senate pro forma sessions he had created.
Harry Reid once argued strenuously against Republicans ending the 60-vote threshold for confirmation of presidential appointees. As majority leader, he adopted the very “nuclear option” he had so long opposed. In doing so he eviscerated a long-standing minority party protection merely to facilitate the confirmation of mid-level Obama political appointees.
Harry Reid has all but ended the Senate tradition of open debate. Reid controls not only what bills are considered on the Senate floor—a well-established leadership prerogative—but also what amendments can be offered to those bills. He has done this by foreclosing the amendment process with a parliamentary tactic called “filling the amendment tree,” turning the Senate into a mini-version of the House of Representatives. No other majority leader in recent memory has taken these steps—not Bill Frist, Tom Daschle, Trent Lott, George Mitchell, Bob Dole,
One step available to House Republicans in response to President Obama’s overreach is outlined in Article II of the Constitution: impeachment. Before assuming this option is beyond the pale, we might ask whether it is really so crazy. Is Obama’s usurpation of congressional powers less serious than Bill Clinton’s cover-up of his sexual activities? Moreover, impeachment is politically possible. Impeachment of the president requires only a simple majority of the House, which Republicans hold. It does not require the cooperation of the Senate. There are serious reasons, however, to doubt the wisdom of this course. First, the ground is simply not prepared. The idea of impeachment would strike official Washington—and most Americans—as coming out of the blue and as overkill at that.
Second, impeachment would produce immediate charges of racism, as if something other than the president’s actions had caused Republicans to take this step. Given the usual tongue-tied Republican reaction to charges of racism, Republicans would be well-advised to avoid putting themselves in this position.
Third, in today’s vernacular, what is the “endgame” of this strategy? The House can bring charges against the president, but the Senate would adjudicate them, and there is no chance that the required two-thirds of the Senate would vote to convict. As we saw with Bill Clinton, a failed impeachment is almost an exoneration.
It is by no means clear that the Supreme Court would take a case aiming to invalidate the president’s actions; as a rule the Court tries to avoid disputes between the legislative and executive branches unless there seems no responsible way to avoid it. But the House would improve the odds of the Court taking this case by passing a resolution stating that its powers have been usurped in violation of the Constitution. … The Court probably would not rule quickly on a case like this.
DEFUNDING THE IRS
This brings us to a third option, which rests upon the congressional power of the purse. House Republicans have already taken this course, when they voted repeatedly to repeal and/or defund Obama-care. How would one more House vote to defund Obamacare help?
Defunding is the right idea, but there is a better target than Obamacare if the object is to address presidential overreach. What House Republicans should seek to defund, in whole or in part, is the Internal Revenue Service. The IRS is the enforcement arm of Obamacare. Without the IRS there is no enforcement of the individual mandate, no basis for determining individual subsidies, and no enforcement of employer mandates. The central role of the IRS in Obamacare should be clear enough from one perverse fact alone: In order to improve health care delivery in America, Obamacare creates not thousands of new doctors and nurses, but thousands of new IRS employees.
Congress should require the president to appoint an independent investigator to look into the IRS across the board, including its role in Obamacare and its targeting of both conservative public interest groups and individuals. The current internal investigation, headed by Obama major campaign donor Barbara Bosserman, does not inspire confidence. Indeed, the president has already foreordained the outcome of this investigation by announcing there is not “a smidgen of corruption” at the IRS.
These steps would be opposed by the Democratic Senate and the president, but they would be widely supported by the American people. The IRS is not much loved by the public at any time; but a current Fox poll shows that 64 percent of Americans believe there is corruption at the IRS that should be fully and fairly investigated. What Harry Reid and the president would be defending in this instance is not the president’s signature health care legislation, but the Internal Revenue Service, a far more daunting task.
A degree of courage is going to be required at some point to rein in the president’s excesses. It is not enough to defer action to an indeterminate future date. Republican leaders should ask themselves a hard question: What is it they will accomplish with control of the House and Senate that they cannot accomplish now? What are the actual steps and projects they would undertake in 2015 with a Republican-controlled House and Senate? How would they overcome the president’s vetoes, his bully pulpit, and the slavish devotion to him of the mainstream media?
Once again, the IRS lies at the heart of the problem. The administration’s efforts will not abate if Republicans control both houses of Congress; indeed, they are likely to increase. We are heading toward a serious and necessary struggle over presidential overreach. The stakes are high politically and, more important, constitutionally. A measure of courage will be required to address them.
Jeff Bergner, adjunct professor at the University of Virginia and Christopher Newport University, has served in the legislative and executive branches of the federal government. His most recent book is Against Modern Humanism: On the Culture of Ego.
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