Republican Bill Boosts 'Imperial Presidency' It's Trying To Squash

Rep. Eric Cantor is more interested in taking shots at Obama than actually fixing the monstrous executive office.

"'Imperial Presidency' Becomes a Rallying Cry for Republicans," the New York Times headline blared in a story in the April 1 print edition. But the Grey Lady wasn't fooling: it's the GOP's "unified anthem" for 2014, reflecting "conservative philosophy about the appropriate role of government."

House Majority Leader Eric Cantor (R-Va.) is leading the charge. In March, he released an updated white paper on "The Imperial Presidency," and helped shepherd the adroitly acronymed ENFORCE the Law Act (for "Executive Needs to Faithfully Observe and Respect Congressional Enactments") through the House.

The bill, which tries to compel the courts to rule on issues like the president's repeated flouting of Obamacare deadlines, was necessary, Cantor insisted, because "the president's dangerous search for expanded power appears to be endless."

I've long argued that the right should rediscover its historic skepticism toward executive power, so the Republicans' new tune should be music to my ears. But while it's got a nice beat, I'm not sure I can dance to it.

For one thing, the GOP's latest legislative nostrum won't force President Obama to care about his duty to "take Care that the Laws be faithfully executed." As the Cantor report describes it, the ENFORCE the Law Act "mandates that the courts set aside their own court-created standing rules and… prevents courts from using procedural excuses" to avoid "important separation of powers cases."

In other words, it subverts separation of powers principles in an attempt to enforce them. The courts are unlikely to comply.

What's more, the Cantor Report mixes legitimate concerns with bogus and trivial ones: It condemns the administration's "extraordinary step" of refusing to defend the Defense of Marriage Act in the courts and "leaving that job to Congress." There's nothing especially "extraordinary" about that; President George H.W. Bush and President Clinton, among others, refused on occasion to defend statutes they considered unconstitutional, something the presidential oath arguably requires.

Also among the president's imperial sins, per the report: Obama "refused to abide by a statute requiring his State Department "to record ?Israel' as the place of birth on passports for U.S. citizens born in Jerusalem." Cantor fails to mention that it was President George W. Bush who first refused to abide by that requirement -- correctly, according to the U.S. Circuit Court of Appeals for the D.C. Circuit, which struck it down last year.

The GOP's latter-day anti-imperialists are absolutely right that Obama's "royal dispensations" in the areas of health care and immigration undermine the rule of law.

Still, surely his administration has provided more terrifying examples of executive unilateralism than the refusal to deport otherwise law-abiding people whose parents brought them here as children and the decision to delay the implementation of a scheme the GOP's denounced as socialism.

In his imperial parade of horribles, Cantor finds room for "withholding critical information about counterfeit goods"–but says nothing about major executive power abuses like illegal wars and dragnet domestic surveillance.

There's a reason for that. Rep. Cantor, truth be told, is rather sweet on the Imperial Presidency. As he sees it, the problem with Obama's Libyan war wasn't its lack of congressional authorization–it was that the president wasn't aggressive enough. Cantor's for a more aggressive approach to Syria, a more aggressive approach to Iran--a more aggressive approach to aggression. He's even given to quoting President Lyndon Baines Johnson's foreign policy wisdom.

And when Rep. Justin Amash (R-Mich.) moved to defund the National Security Agency's bulk collection of innocent Americans' calling records, Cantor threatened to kill the bill on a procedural technicality.

Ninety-four House Republicans later voted to end the program; Cantor wasn't among them. On these core Imperial Presidency concerns, the GOP rank-and-file are better than their leadership. They could use a better standard bearer.

This column originally appeared in the Washington Examiner.

Comments

[Steve G]

Oh noes!! He 'refused to defend' the DOMA. If that's part of the list of grievances, you watered down the whole thing Cantor.

[Swiss Servator, Fr?hling?]

TEAM RED now on a par with TEAM BLUE WARZ ON WIMMINZ type bills.

Bah.

[John]

For one thing, the GOP's latest legislative nostrum won't force President Obama to care about his duty to "take Care that the Laws be faithfully executed." As the Cantor report describes it, the ENFORCE the Law Act "mandates that the courts set aside their own court-created standing rules and... prevents courts from using procedural excuses" to avoid "important separation of powers cases."

In other words, it subverts separation of powers principles in an attempt to enforce them. The courts are unlikely to comply

Let me give you a tip, there is nothing about "standing" in the Constitution. All the Constitution says about the subject is

The judicial Power shall extend to all Cases, in Law and Equity,

That is it. Courts have interpreted that language to mean "actual cases or controversies" and built the entire doctrine of standing around it. It doesn't have to be interpreted that way. And moreover, even if you read it that way, that doesn't mean that every aspect of the standing doctrine is necessary to meet the requirement.

If Congress wants to pass a law telling the court what constitutes standing, I don't see that as an infringement on the Court's power. The Congress and the President have a say in how the Constitution works too.

[Ivan Pike]

Let me give you a tip, there is nothing about "standing" in the Constitution. All the Constitution says about the subject is

I would argue that the First Amendment gives you standing.

and to petition the government for a redress of grievances

[Gabriel Hanna]

Congress has the explicit power to determine Supreme Court jurisdiction, Article III Section 2:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

[John]

I was going to mention that but the squirrels ate my original post. If Congress has authority over jurisdiction, which they clearly do, they certainly have the power to tell the Courts that they will hear cases involving the President's failure to enforce or abide by the law.

[Notorious G.K.C.]

I would think one workaround was to impose damages for ignoring the law and letting any private plaintiff come in and get an informer's fee if (s)he wins. In that way, since the plaintiff has a concrete interest in winning the case, (s)he ought to have standing, like with the False Claims Act.

[R C Dean]

As the Cantor report describes it, the ENFORCE the Law Act "mandates that the courts set aside their own court-created standing rules and... prevents courts from using procedural excuses" to avoid "important separation of powers cases."

In other words, it subverts separation of powers principles in an attempt to enforce them.

I'm not really seeing this. The courts always have to apply the law as written. If a new law gets passed, even one that repeals "court-created" rules, then having the courts enforce that new law isn't a violation of separation of powers, any more than any other law is.

[John]

Exactly. If Congress wants to pass a law creating a private cause of action for times when the President fails to enforce the law, they certainly can.

Indeed, Congress has done this in the past. There is a private cause of action available under the ESA for times when the federal government is not enforcing it properly. All you have to do is prove some kind of tangential interest in the species, literally something like "I like to go bird watching and seeing this endangered bird" and you can sue if you feel like Fish and Wildlife or NMFS isn't properly enforcing the law.

What Congress is doing here is no different. This article is a good example of why Reason needs to hire a lawyer. Healy just doesn't know what the fuck he is talking about, doesn't understand standing and doesn't understand much if anything about federal law.

[Pro Libertate]

Fuck, I don't understand standing. Not as it's actually applied, anyway.

[John]

Most don't Pro. I feel like I understand it pretty well. And it is a valid and valuable doctrine. The base of it is that both sides need to have an actual and conflicting interest in the case. If they don't, it would allow litigants to create sham cases for the purpose of denying real claimants access to courts by the application of res judicata.

Frankly, in my opinion, courts don't understand it either. If they did and why the doctrine was created, they would have allowed third parties to step in and defend the gay marriage statutes when the state AGS refused. The state AGs refusing to defend the statutes so that the case against them became sham cases is exactly the kind of shenanigans that standing is designed to prevent. Instead, standing was used to allow such to go on.

[Pro Libertate]

I meant in constitutional cases. Even in some of those, I think there are clear candidates for those with standing and those without it. But in many cases involving civil liberties and/or unconstitutional actions by government, I'm not sure tossing the case on standing grounds makes any sense.

[John]

I don't see how any citizen objecting to the government not following the law isn't an actual case or controversy.

Really what is going on is the courts are just saying "we don't want to adjudicate political disputes, so we just won't hear anything that concerns whether the government is following its own rules if we can possibly avoid it". That is a terrible cop out on the courts' part.

[Pro Libertate]

Yes, that's the crux of my problem. The court has a real knack for avoiding issues that are clearly in its jurisdiction.

I get that some matters are truly nonjusticiable, but they go to the well too often to avoid making decisions.

[Swiss Servator, Fr?hling?]

"We don't want to hear your case" = lack of standing

"OK, we'll take it, we don't have anything else to do this month" = standing

[Notorious G.K.C.]

Wow, you're so cynical!

[Loki]

You mean Cantor's just an establishment crap weasel? I'm shocked, shocked I tell you!