GOP's lawsuit against Obama, and Presidential Signing Statements

Factual Questions
1

The US House is moving forward with their lawsuit against President Obama. The basis for the lawsuit, as I understand it, is that they disagree with the way the president has selectively executed or not executed parts of laws that have been passed. My question is, how are Obama’s actions any different than the “signing statements” that George W Bush was famous for when signing bills into law, which effectively stated that he was just going to enforce or ignore certain parts of what he was signing. Is this just another case of “it’s OK when we do it but we don’t like it when you do it”?

I’m hoping for a factual answer to this question but I understand if this winds up getting tossed over to GD or Elections.

2

Signing statements as such have no real force of law. They’es just the President’s opinion on a bill.

3

Right, This is not a signing statement but an Executive Order.

4

The GQ answer is that signing statements are predictive in nature. You cannot sue someone for merely claiming he won’t enforce the law. But (at least in theory) Obama’s issued Executive Orders that lay out how he won’t enforce the law, and is abiding by those orders.

That’s the theory, as I understand it.

5

My understanding of signing statements is that they have no legal force (despite being published with the law they are attached to), and merely indicate how the president intends to enforce a law, or if the president feels a particular provision in unconstitutional. Signing statements have been used since James Monroe, so they have quite a history.

That “unconstitutional” provision is the sticking point. If the president believes some part of a law in unconstitutional, and Congress believes it is constitutional (since they passed it), who sorts out who is right? The Supreme Court. If the president believes a particular method of enforcing the law is constitutional, and Congress does not, who decides which evaluation is right? The Supreme Court again.

That being said, I don’t believe this particular lawsuit is about that matter at it’s core, but it’s at least a valid reason for bringing a lawsuit.

6

Remember that signing statements can be more or less neutral, too. The president says; I interret this bill to mean X, Y, and Z.

7

From what I read, the lawsuit is focussed on the delay for a year of the employer mandate to provide healthcare - more specifically, the announcement the government will not impose a fine (or tax?) for failing to meet the provisions of the Affordable Health Care Act. Can the government decline to collect a tax? Or decline to prosecute? They do it all the time, when they settle with a taxpayer by accepting less than the full amount, or refusing to press charges with a potential defendant. Not sure how this is different.

The question is, who is entitled to sue? Who “loses”, who has grounds, who has standing? Certainly not those don’t have to pay. Perhaps the employees who lose coverage for a year - assuming the employer would otherwise have covered them. It’s hard to see how congress itself is hurt. It’s the administration’s job itself within its discretion how laws are enforced, provided it does not spend money it is not entitled to spend, provided it does not take an action the law explicitly forbids.

I suspect a lawsuit by congress, more specifically by one party of one house, will be tossed in short order as having no grounds and being political theatre. Want to bet the judge also tells them to “put it in a law if you want it to stick”?

8

That would depend upon whether or not the judge is a Republican.
See “Florida chads”.
:slight_smile:

9

But see in that set of lawsuits, both Bush and Gore had standing, as interested parties who were DIRECTLY affected by the outcome.

In what way is congress impacted by the measures the president takes?

10

They are very different. A signing statement is, traditionally, a statement by the President that he considers some portion of a bill unconstitutional, and will act accordingly, e.g. not execute it. Constitutional scholars differ on this point, but there is a respectable argument that he is entitled to do this: the President is co-equal with the other two branches, and therefore entitled to interpret the constitutionality of his own actions just as they are.

There is a modern fetish for thinking that the Supreme Court alone interprets the Constitution, and therefore has the final word on what is, and is not, constitutional – but this is supported neither textually nor historically. The principle of Marbury v. Madison is merely that the Supreme Court is the ultimate arbiter of the constitutionality of Federal law. But there are many other actions of government other than law, e.g., in this case, the actions of the Executive. There is no text that supports the idea that the Supreme Court is superior to the President himself in interpreting the President’s own constitutional powers, and plenty of contrary historical precedent. I think the most intelligent observers conclude that each branch of government has equal right to decide the constitutionality of its own actions. Obviously, these decisions may come into conflict, and such conflicts are settled, when they are, extra-constitutionally, more or less by compromise under public pressure (cf. Gulf of Tonkin, sequelae of).

What the House is suing Obama over is something very different, and pretty much unprecedented. Obama did not look over the ACA and decide some portion of it was unconstitutional, and therefore not be executed. On the contrary, he agreed it was all constitutional, he just didn’t want it executed on the schedule set forth for it in the clear text of the law. That’s what all that “waiver” of the employer mandate, et cetera, was all about. He just took his pencil eraser and erased the “2014” where it was written into the statute and wrote “2015” instead. He doesn’t say the mandate isn’t constitutional, he just wants to implement the law in some other way than Congress wrote it. He is, in effect, rewriting the law to suit his own preferences.

That’s not allowed. The President executes the law but he cannot write it. That privilege lies with Congress alone. Admittedly, there are various ways of execution that have the effect of modifying the law, at least a little, in practice. But again, this is very different, and unprecedented, because the deadlines for the mandates were written down in black and white. They were specific dates. Obama just ignored them and set different dates. The ugly principle at work here is that if a President can alter the clear text of a law at his own discretion, then he can more or less rewrite law to suit him. Suppose the next President is Republican but faces a united Democratic Congress, and Congress passes a law, say, extending unemployment benefits to 150 weeks or something. Under the principle Obama has established (at least so far), our theoretical President R could just take out *his * eraser and change that 150 to 50 weeks, or even 5, at his whim. Or he could rub out the word “unemployment” and change the law to require 150 weeks of government support to every evangelical church, or 150 weeks of government wages to his favorite Aunt Hilda – whatever he wants.

I think if the Obama principle really did become established, and Presidents simply rewrote the text of laws to suit their preferences, this would be a dangerous development indeed. You are taking one giant step towards collapse of a separation of powers and towards tyranny, beause you are fusing executive and legislative power in one man. Add in the judicial, and you have Caesar.

But it’s not clear the principle will be established. Plenty of Presidents have tried to do outrageous and dangerous things, and if they lack sufficient support, they just kind of die out on their own. What the House is hoping to do is force this one to die a sharper, more notable death, so that it isn’t necessary to wait and see and hope it dies away naturally. I doubt it will work, though. You really can’t invoke the Judicial Branch to rein in the Executive, if you’re not willing or able to do so yourself. If Congress was serious about limiting the President’s power this way, they’d defund Obamacare until he executed its provisions faithfully. The House can do that: they control the purse. The fact that they don’t do this means they don’t have the balls. So, ultimately, while the objection and the legal theory are sound, this is sound and fury, signifying nothing.

11

His actions directly limit their Constitutional ability to write the law the way they see fit. They obviously have standing, for exactly the same reason that I have standing to sue you if you steal my car: your actions deprive me of the exercise of my rights (in this case to enjoy the use of my property). There’s a quite obvious harm to the rights and privileges of Congress.

What’s unclear is not the standing of Congress to sue, but the standing of any court to resolve the issue. You have, in effect, the Executive and Legislative branch disagreeing about the constitutionality of certain actions of the executive. The Judicial branch can certainly throw its own opinion in the ring, too, but there is no obvious reason why that opinion should carry more weight than either of the other two.

That is, if the Supreme Court said the President is constitutionally required to enforce the employer mandate on the date specified by Congress, the President is certainly capable of saying “I disagree” and then…what? The person who is in charge of enforcing the orders of the Court is, of course, the President. He is not going to enforce orders he thinks are unconstitutional, e.g. those telling him how to interpret his constitutional duties (and telling him wrongly at that). And, unlike the case with rewriting the ACA to suit his political schedule – which I think is clearly unconstitutional – I think the President would be on pretty good constitutional grounds to argue that the Federal Courts do not have jurisdiction over his decisions on the constitutionality of his actions.

12

But this is my point. In your example, anyone entitled to unemployment benefits can sue if they don’t receive them. Not congress. Joe the unemployed is specifically hurt financially by GOPOTUS’ actions - financial damage means right to redress.

Ditto, if Aunt Hilda receives money and it’s more than the unemployment benefits set out in the law, or she’s not unemployed, then the government is spending money it is not entitled to spend, as one of the powers of congress is to allocate (or not) money to be spent. Spending money not authorized is a crime, and a POTUS condoning it can be impeached, and the entire chain of civil servants can be prosecuted during the next administration.

But the delay of the mandate is simply telling employers - if you fail to meet this provision of the law, we will not impose the fine/tax in 2014.

How is this different from not enforcing federal marijuana laws in the growing number of toke-friendly states? “We will not enforce laws against commercially growing, selling or possessing cannabis in Colorado.”

Congress writes the laws and the administration enforces them at its discretion. (What was Andrew Jackson’s line? “John Marshall has made his decision; now let him enforce it!”) People who feel they are hurt - directly impacted financially or in the enjoyment of their civil rights - by the administration’s “discretion” can sue for redress in the courts. Third party bystanders can’t.

If congress wanted to enforce a timetable, they could craft a law such that there were consequences to not following it. If, for example, the “fine” went to the employees not the government, then there would be a line-up of affected parties (every employee) capable of suing their employer no matter what Obama declared. Congress chose not to craft the law that way.

That is my contention; the court will tell the delegation from one party of one house that should they want the administration to do something, put it in a law in a way that can’t be gotten around. They can’t? Oh, right, because they are for some reason paralyzed and incapable of doing their job. Until they do, sucks to be them. If they can’t get the law passed the way they want, then that says something about the forethought in the constitution to restrain inappropriate partisan and impulsive actions.

13

Some signing statements are about constitutionality. Maybe even most. But not all.

Also (and I’m probably straying a bit into GD territory here), keep in mind that many pundits consider this a political move by the establishment GOP to quell the more radical faction that wants to move for impeachment-- something the establishment GOP does not want to do. It’s always important to consider the political side of actions taken by, well, politicians, although when doing so it’s difficult to stay 100% within factual territory.

14

You’re not supposed to make things up in GQ. Standing jurisprudence requires harm that is distinct from that suffered by the general public. Here, Congress is suffering no harm that is distinct from that of the public. The administration didn’t stop Congress from voting on the bill, or take its cars away. Theoretically, a court might find congressional standing if a majority of both houses authorized the lawsuit; that hasn’t happened here.

The house majority is really no different from the Senate minority that sued to enjoin use of the line-item veto in Raines v. Byrd.

Sure there is: that’s what the courts are for. The supremacy of federal courts in determining whether an act of the other branches is constitutional is well-established. Standing is a term of art.

There is no such thing as “standing of a court”. Standing refers specifically to whether the plaintiff is the correct person to bring a suit (and occasionally to whether a defendant is the correct person to defend it.) There is the political question doctrine, under which courts abstain from deciding issues, but that only applies in limited circumstances: specifically, whether authority over those issues is vested in the other branches by the Constitution. It’s a self-imposed rule, not a constitutional imperative, and it doesn’t apply here anyway.

The standing of the plaintiffs is the only issue that prevents federal courts from hearing this case. There is no political question presented. SCOTUS had no problem overturning the Line-Item Veto Act after dismissing Raines v. Byrd; the case just had to be brought by a proper plaintiff (the City of New York, as it happened.)

15

The executive branch is not, under constitutional theory, allowed to execute laws “at its discretion.” Certain things relating to issues of prosecutorial discretion, certainly, so for criminal law there are of course aspects that are discretionary. But imposing a tax or something, I don’t think so. The mandate wasn’t to be assessed as a criminal or even civil fine, but just part of the tax filing process. Essentially automatic with the extant tax infrastructure, so if your company would have receive $150m back or would have owed $150m, now you receive only $130m or owe $180m etc.

So this is more like a Republican President agreeing to say, a special 4% higher tax on investment income for persons with say, over $200k AGI, saying “don’t worry about it, this is no longer required to be part of your tax payment calculations so don’t pay it.” Then all the tax preparers would just act as though that tax doesn’t exist because the President has just said the IRS isn’t going to actually collect it or care about it.

If the President really has that power then he’s omnipotent within the context of government activity.

16

And the remedy for such actions is impeachment. The idea that Congress can sue the president for “not enforcing a law” flies in the face of the idea of “standing”. Congress simply does not have standing here.

17

I don’t think that’s accurate. Instead it’s accurate that Congress has never really done this before, and you’re trying to apply common rules of “standing” to something for which there is almost no precedent. But there are some precedents that suggest:

  1. SCOTUS is willing to get involved in intrinsic checks and balances issues
  2. SCOTUS has said the executive branch can be compelled to act, back to Marbury v. Madison SCOTUS acknowledged that a writ of mandamus could be issued forcing executive action, even though the law under which Marbury brought suit was unconstitutional and thus his request immaterial at that point, Marshall did lay out that such a thing could be done and was within the court’s power.
  3. The SCOTUS has regularly seen that intrinsic constitutional balances can be violated in the Federal/State relationship, even when its initial view may have gone in the opposite direction. For example they refused to help the States Garcia v. San Antonio Metropolitan Transit Authority(1985), when the States protested Federal wage & hour regulations being applied against them as employers, stating that the “political process” was how the States could solve that problem. The logic being, since Congress is made up of representatives of the States they have the opportunity to fight against things like this. This is essentially your “impeachment” argument, as impeachment is similarly a political process remedy and a denial that there can be any court remedy.

But the SCOTUS realized fairly quickly that treating the States as though they had no court-protected rights (as opposed to political process rights) could quickly create a loophole by which the Federal government could destroy all Federalism and essentially all State sovereignty. So in New York v. United States (1992) they basically reversed themselves and recognized that the political process alone isn’t sufficient in these matters.

Under your theory, Congress is like some argued the States were in 1985, not an institution with rights to have the judiciary protect its constitutional powers. The judiciary initially agreed, but quickly reversed its course because it recognized the impractical nature of the political remedy for the States would have basically detonated our entire framework of government from within.

I think we are now in a similar scenario, in which this “loophole” would allow the President to ignore the Constitution unless he was impeached. I think the courts will recognize this is just as ludicrous as expecting the States to have protections in terms of their rights vs the Federal government solely through the fact that there are members of Congress from their State to represent their interests in legislation. Just like assuming impeachment is the only proper redress, that argument basically makes it so only the most insane, egregious violations of the constitution can ever be righted. It basically says the Presidency is entitled to engage in a series of minor violations over time, because none alone will rise to the political level required to secure an impeachment. Thus is how tyrannies are born and individual liberties destroyed.

Aside from the State/Federal relationship, the court has also interceded between the branches of government, such as when it denied Congress’s attempts to transfer judicial functions to non-judicial branch judges (Northern Pipeline Construction Company v. Marathon Pipe Line Company (1982)).

The court is willing to step in to maintain constitutional balance between the Federal government and the state, and has previously done so for branch to branch issues as well.

18

Wiki has a good summation of parts of Marshall’s argument in Marbury:

While there is certainly some discretion in the law, if the executive branch were to essentially stop enforcing all law or even just large parts of the law that wouldn’t arise anger by enough people to see an impeachment it’s all but certain the executive would not be exercising required, purely ministerial functions. The courts could certainly then issue a writ (the accepted correct method as mentioned in Marbury) to perform these ministerial functions. I’d argue something like ordinary implementation of the tax code would be a ministerial function. Prosecuting specific crimes probably not.

I also point that in Raines v Byrd, several Senators and two House members lead by Robert Byrd sued over the Line Item Veto Bill. When it made it to the SCOTUS, the SCOTUS found these six members of Congress lacked standing, but they noted some important things in doing so:

It is not a settled question how this would have gone if Congress as a whole were acting, or if the court felt that Congress did not have an adequate remedy. The court explicitly says it would view the situation differently, though, but has no need to determine it because it already determined the six individuals lack standing. (Later the City of New York sued over specific harm from the LIV and was found to have standing and the law was declared unconstitutional.)

19

I disagree. I think the SCOTUS is loathe to insert itself into fights between the executive and legislative branches unless there is some real constitutional crisis involved. There is not the same tension that SCOTUS has fought between the feds and the states here. That’s not a good analogy at all.

20

I’m not sure I understand the last few posts.

Marbury vs Madison said that Marbury was entitled to his commission according to the law, and it should be delivered.
Then it went on and reneged on that, saying that the law itself was unconstitutional; apparently saying that the constitution defined the ultimate limit of the powers of congress and the court.

I actually don’t see anything in the constitution that obliges the president to enforce laws; generally the constitution seems to be limiting the executive’s ability to enforce what is NOT in law. Congress has to sole authority to MAKE laws. The executive can fail to enforce them, and anyone directly and materially affected can then sue.

I suppose if someone gets a judgement and the entire apparatus of the state (executive) refuses to enforce it, then the problem is lack of democracy. If the court says “pay this man $1,000,000 for his damages” and the government fails to do so, the police fail to enforce the order, the banks refuse to debit from the government accounts when presented with a court order… Then the rule of law has fully collapsed.

Perhaps we’ll see a semblance of this when the courts start ordering the government to drop the pretence of “national security” on everything. But… not with Affordable Care.

We see executive discretion all the time. A person is charged with 20 crimes, then pleads down to 5 charges and a lesser sentence. The other 15 charges are ignored. Is this unconstitutional? As I said, the feds ignore enforcement of the federal marijuana laws in Colorado. Is this unconstitutional?

The question then - at what point is executive discretion unconstitutional?