There’s been a lot of discussion about the legality of President Obama’s actions WRT the prisoner swap. Without getting into whether in fact his actions in this particular case were legal or illegal (or constitutional or not, as per preference), I was wondering about the point of this type of law altogether, which seem to be completely unenforceable.
Using this law as an example, I see 2 problems.
[ol]
[li]Who has standing to challenge the president’s actions in matters of this sort? Does Congress? People who claim they might be harmed by released prisoners? I’m not a legal scholar, but I can see where that could be an issue.[/li][li]The cat’s out of the bag. This can’t be undone. And there are obviously no criminal penalties on the president for doing presidential actions that are technically illegal. So who cares? As a practical matter, there will always be enough fog from talking head legal pundits so that everyone can decide whether they believe it’s legal or not based on whether they approve of it on policy or other grounds, and whether in fact it’s actually legal or not is completely moot.[/li][/ol]
Is the above correct? And if so, what’s the point of such laws? ISTM that the only laws worth bothering with are those which can be enforced in court, whether before the fact via court orders and injunctions or after the fact via penalties for violators.
Yes, Congress can challenge executive action via the courts (generally.) You seem to be suggesting that there is no point passing a law restricting executive authority because the POTUS can ignore it. Well, no. If Congress thinks they had the authority to require the POTUS to notify them of prisoner exchanges (the Administration, for its part, has always said that clause was unconstitutional) they can take him to court, and impeach if necessary.
Does Congress always have standing to take the POTUS to court? I’m not sure about that.
But in any event, in cases like this what’s done is done. A court can’t undo it. And there are no penalties on the Prez for ignoring the law, even if a court was to rule that this is what he did.
I don’t see that impeachment has anything to do with this. Congress can impeach for whatever they want. As a practical matter no president is going to be impeached over a technical question of whether something was against the law or not.
Congress generally has standing to take the POTUS to court (hence the parenthetical.) You may be thinking otherwise because individual members of Congress generally do not have standing. Or you might be thinking of the political question doctrine, which basically applies where the courts don’t think it will do any good for them to get involved.
Do you have a source for this? I’ve looked around a bit and find a lot of discussion about whether congresspeople have standing but have been unable to find the distinction you’re making. Thanks.
It’s sort of implied from the end of Raines v Byrd, where the court assumes that Byrd would have had standing if he was authorize to sue on behalf of one of the houses. As far as I can tell Congress has never actually tried to sue as a body.
“Sort of implied” doesn’t sound the same as settled law to me.
But regardless, if the only enforcement mechanism is something that has never been used in history then I still think that law is pretty close to moot if not actually that.
It’s my understanding that besides for a great expansion of executive power in granting waivers for, or just deciding not to enforce, any laws he doesn’t like, Obama has also used this as leverage to effectively create new laws, by making his waivers conditional on complying with conditions that he lays down.
On a related note, I have a question about the practical impact of the current Boehner/Republican lawsuit.
Would this lawsuit, if successful, have any impact beyond the specific case the court rules on? I would think each alleged presidential over-reach would be a completely separate issue from a legal perspective, so there would be no carryover from one to the next.
So as a practical matter, there’s no way to rein in a usurping president other that by congress suing again and again on each law. I don’t see that as practical, even if these lawsuits could be succesful to begin with.
Correct me if I’m wrong, but you seem to be backing away from that position here.
You explained the basis of your assertion here in post #6, saying: “It’s sort of implied from the end of Raines v Byrd, where the court assumes that Byrd would have had standing if he was authorize to sue on behalf of one of the houses.” (emphasis added).
So I did. I misspoke, then. The Raines court appears to have assumed that Congressional plaintiffs would need to be authorized to challenge on behalf of both houses:
I would note that the political context is a bit different than it was when you made your prior comment, and your inconsistent positions tended to support President Obama on both occasions.
When I made this this thread, though I tried to steer away from Obama specifically, there was an unspoken implication that if Obama’s expansion of presidential powers was allowed to stand it would render increasingly large portions of the law pointless. Pointing out that this expansion could be challenged in court had the effect of countering that.
Now that the Republicans have actually challenged Obama with an actual lawsuit, and Obama has declared it to be a frivolous political stunt, this naturally becomes the position of all Good and True Democrats.
Yes, you can call me cynical.
This does not follow from the text you quoted.
The lawsuit was filed by members of houses, so the court needed to say that both houses opposed the suit. (If anything, you could make the contrary inference, that one house opposing the suit would not have sufficed, since that would leave one house unapposed.)
