The White House issued veto threats on Wednesday for a pair of bills reining in executive overreach that debuted and were debated on the House floor.
The Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law (ENFORCE the Law) Act of 2014 puts in place a procedure that would expedite the ability of the House or Senate to sue the executive branch for failure to faithfully execute the laws. Rep. Trey Gowdy (R-S.C.), a former prosecutor who introduced the bill, said a three-judge panel at the federal district court level followed by direct appeal to the Supreme Court is necessary so that the president can’t stall litigation until his term is up.
The Office of Management and Budget said in the veto threat that it “strongly opposes” the bill “because it violates the separation of powers by purporting to permit the Congress to challenge in court the exercise by the President of one of his core constitutional functions – taking care that Federal laws are faithfully executed.”
“Congress ordinarily has the power to define the bounds of the Executive Branch’s enforcement authority under particular statutes, and persons who claim to be harmed by the Executive Branch’s actions may challenge them as inconsistent with the governing statute,” the veto threat continues. “But the power the bill purports to assign to Congress to sue the President over whether he has properly discharged his constitutional obligation to take care that the laws be faithfully executed exceeds constitutional limitations. Congress may not assign such power to itself, nor may it assign to the courts the task of resolving such generalized political disputes.”
Gowdy responded to the threat by citing a quote Obama said at a forum in 2008: “One of the most important jobs of the Supreme Court is to guard against the encroachment of the Executive Branch on the power of the other branches,” Obama said. “And, I think [the Chief Justice] has been a little bit too willing and eager to give an administration, whether it’s mine or George Bush’s, more power than I think the Constitution originally intended.”
“What’s changed?” Gowdy said. “How do you get before the Supreme Court if you don’t have standing?”
On the House floor, Rep. Shelia Jackson Lee (D-Texas) said the intent of Gowdy’s bill is to “abolish the powers of the presidency because you disagree with policy.”
“Although I never attribute any malfeasance” to Republicans in the House, she said, “…we never did this with President Bush.”
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) reminded Democrats that they sued George W. Bush in 2008 over onetime Supreme Court nominee Harriet Miers when they wanted to call her before the committee.
The second bill, the Faithful Execution of the Law Act of 2014 from Rep. Ron DeSantis (R-Fla.), focuses on the Justice Department and expands the number of circumstances when the attorney general is required to report non-enforcement of the law to Congress.
“The bill would inordinately expand current law, which already requires reports to Congress when non-enforcement of Federal law is based on constitutional grounds. H.R. 3973 would further require reporting to Congress each time any Federal officer establishes or implements a formal or informal policy to refrain from enforcing or administering any provision of a Federal law, rule, regulation, program, or policy on any grounds,” the OMB said in a veto threat.
“Federal agencies are continually engaged in the process of determining how to concentrate limited enforcement resources most effectively. The vastly expanded reporting scheme required by the bill would be unduly burdensome and would place the Attorney General in the unprecedented position of having to be kept informed of and report on enforcement decisions made by every other Federal agency.”
Democrats on the floor expressed concern that this would dial back deferred immigration enforcement against young illegal immigrants. Rep. Zoe Lofgren (D-Calif.) said there is a “well-established use of prosecutorial discretion” in immigration cases and accused GOPs of a “voracious” urge to deport young people.
Gowdy used drug cases subject to selective prosecution as an example of how Eric Holder was not using prosecutorial discretion, but “anarchy.”
Propping a picture of the Constitution up on the floor, Goodlatte argued that the bills are necessary as the administration has been tweaking or subverting the laws through blog posts and letters, circumventing congressional authority.
Judiciary Committee Ranking Member John Conyers (D-Mich.) compared the debate to the Emancipation Proclamation. “President Lincoln made a decision to not enforce existing laws,” Conyers said, which was “not only legal and a military turning point but morally correct.”
Conyers said passage would “make it far more difficult to protect our citizens’ rights.”