Why not even Congress can sue the administration over unconstitutional executive actions

Elizabeth Price Foley Law Professor, Florida International University
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What happens if a president refuses to “take care that the laws be faithfully executed” as required by Article II of the Constitution? The Framers assumed that neither Congress nor the courts would tolerate such usurpation. In Federalist No. 48, James Madison said power was “so divided and balanced among several bodies … that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Madison’s confidence assumes a wayward president could be reversed by the courts, reigned in by Congress or — as a last resort — impeached. But what if none of these checks and balances works? Americans may soon find out.

First, courts have limited ability to check a president’s failure to execute. The primary obstacle is “standing,” a doctrine that requires a plaintiff to have a concrete, personal injury in order to sue. Citizens can’t file generic lawsuits to enforce the Constitution; they must prove that the government has harmed them in a personal, palpable way.

When a president delays or exempts people from a law — so-called benevolent suspensions — who has standing to sue him? Generally, no one. Benevolent suspensions of law don’t, by definition, create a sufficiently concrete injury for standing. That’s why, when President Obama delayed various provisions of Obamacare — the employer mandate, the annual out-of-pocket caps, the prohibition on the sale of “substandard” policies — his actions cannot be challenged in court.

Similarly, when the president decided not to deport certain young people, not to prosecute most marijuana users, and rewrote the work requirement of welfare reform, courts cannot rule on these acts’ constitutionality because no individual has suffered the personal harm required for standing. Sure, the Constitution and its separation of powers are tremendously harmed. But the Supreme Court has made clear such generalized societal harms won’t suffice.

Congress probably can’t sue the president, either. The Supreme Court has severely restricted so-called “congressional standing,” creating a presumption against allowing members of Congress to sue the president merely because he fails to faithfully execute its laws.

If courts can’t be counted on to check the president, couldn’t Congress just enact another law reversing him, or even impeach him? In today’s hyper-partisan climate, the answer appears to be no.

Even if the House passed a bill undoing presidential action — for example, a bill that declared, “We don’t want individuals brought into this country illegally to be exempt from deportation, and we really, really mean it this time” — the Democrat-controlled Senate wouldn’t likely allow a vote on the measure. House Republicans passed a spending measure this fall to keep the government operating. But because the bill included a one-year delay in Obamacare — something the president threatened to veto — Senate Majority Leader Harry Reid refused to even bring the bill to the floor.

Indeed, why should Congress even bother to legislate in the current environment? If it somehow miraculously passed something the president opposed, it would be promptly vetoed, and getting two-thirds of both Houses of Congress to overrule his veto — particularly in the Senate — is as likely as a snowstorm in Miami.

Even when a congressional majority agrees with the president and passes a law the president signs, there’s little confidence he will faithfully execute the law as written. Why pass comprehensive immigration reform, for example, if it includes tight border security or deportation measures with which the president disagrees and may ignore? As Congressman Paul Ryan put it, “Here’s the issue that all Republicans agree on: We don’t trust the president to enforce the law.” The president’s failure to faithfully execute has made Congress grind to a halt and with it, democracy itself.

If the president’s actions are so bad, why not just impeach him? Presidential impeachment has occurred only three times. Reconstruction President Andrew Johnson narrowly escaped conviction after the House impeached him for firing the Secretary of War in contravention of the Tenure of Office Act. Richard Nixon resigned after being impeached for obstructing an investigation into the Watergate break-in, and using the IRS and other executive agencies to target political opponents. Bill Clinton was impeached for abusing the judicial process and executive power to cover up his extramarital relationships. The Democrat-controlled Senate acquitted him.

The one thing all three attempts at presidential impeachment share is this: An assertion that the president was failing to faithfully execute the laws. Each situation involved — to a greater or lesser degree — a president intent on ignoring or manipulating the law for his own political or personal advantage.

Has President Obama committed similarly serious acts? Some Americans believe his unilateral changes to various laws and use of the IRS to target tea party and conservative groups are just as serious as Clinton’s, Nixon’s, or Johnson’s transgressions. But even assuming this is true and the House passed articles of impeachment, would two-thirds of Harry Reid’s Senate convict the first African-American president? The question seems to answer itself.

Sadly, in the Washington of 2014, partisanship trumps constitutional principles. While President Obama’s pattern of failing to execute laws is serious, the ability of courts and Congress to stop him is shockingly limited. The Framers relied on the other branches of government to jealously guard Congress’s prerogative to make laws and the president’s duty to faithfully execute those laws. Unfortunately, the Framers may have been wrong.