Executive Power

Obama the Unchallengeable, on ISIS and Obamacare

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Whitehouse.gov

Yesterday afternoon, a federal appeals court tossed a lawsuit against the Obama administration filed by a consortium of doctors opposed to the president's delay of Obamacare's employer mandate.

The court did not rule that President Obama's decision to delay was legal. It did not rule on the merits of the delay at all. Instead, the three-judge panel in the 7th Circuit Court of Appeals said the doctors had no standing to sue, because they could not demonstrate that they would be directly harmed by the delay.

The question of standing has always plagued challenges to the administration's multiple delays of the employer mandate. Even though liberal legal scholars who support the health law have suggested that it is likely an overstep of executive authority, it is hard to find anyone with the legal status to sue.

The appeals court decision suggests that a similar suit against the mandate now in the works from House Republicans will face the same problem. President Obama's move may be illegal, but there's no one who can stop him.

A few hours after the appeals court decision was released, American forces began bombing targets inside Syria. Obama had foreshadowed the strikes in a speech earlier this month, and had invited Congress to officially approve the action, in the way that one might invite a friend over at the last minute for a long-planned dinner. The table was already set, the meal already cooking. It was all going to happen, whether or not Congress decided to show up. 

Congress did not approve the strikes. The administration maintained it had the authority to wage war in Syria anyway under the Authorization to Use Military Force passed in the wake of the September 11, 2001 attacks.

It is, at best, a dubious proposition. That authorization allowed the use of military force against Al Qaeda and affiliated forces. The current strikes are aimed at ISIS, which is no longer part of Al Qaeda, which has disowned ISIS.

As such, the strikes are probably illegal.

At minimum, they do not meet the standard laid out by Barack Obama on the campaign trail in 2008, when he told The Boston Globe that "the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

In his recent speech on the strikes, President Obama suggested that ISIS "could pose a growing threat beyond" the Middle East "if left unchecked," but also said that "we have not detected specific plotting against our homeland." By Obama's own admission, ISIS does not meet the test he himself laid out while running for president.

But who can challenge the president's decision to wage war? The answer is almost certainly no one. Certainly not elected officials in Congress. Since 1973, with the passage of the War Powers Resolution, a law intended to restrain the executive branch's capacity to wage war, there have been multiple attempts by legislators to challenge a president's legal authority to wage war. None have made a dent in executive authority. In four cases, as the Congressional Research Service noted in 2012, the courts refused to render a decision on the merits, labeling the suits as fundamentally political in nature. Two cases were dismissed for lack of ripeness, and two more were tossed for lack of standing.

As with the delay of the mandate, the recent strikes are probably illegal, and yet no one can mount a challenge. President Obama is unchecked, and uncheckable.

Obama is the only one with the power to stop himself. Indeed, while running for president, that's exactly what he promised he would do.

"The biggest problems that were facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that's what I intend to reverse when I'm President of the United States of America," he said at a televised campaign event in 2008.

A year before that, he voiced explicit support for the War Powers Resolution. "The government of this country is not based on the whims of one person," he said.

The public liked Obama's vision, and voted him into office. But the promised reversal never arrived. And now, on too many policy issues, in too many significant decisions both at home and abroad, it seems all too clear that the whims of one person are what matter most.