What Options Do Republicans Have to Counter Obama's Pen?

Members of Congress generally have no standing to challenge a president’s constitutionally questionable actions in federal court. Writing for the Daily Caller, Elizabeth Price Foley, a law professor at Florida International University, said 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.”

If an individual lawmaker is wasting his time trying to sue the president, so is Congress as a whole. The Supreme Court over the decades has imposed restrictions on what has been termed “congressional standing,” rejecting efforts to file suit against the White House based on a claim that the president failed to faithfully execute the law as required by the Constitution.

With the courthouse doors closed, congressional options are severely limited. One possibility is legislation, a strategy that has worked before over the issue of impoundment.

Presidents, again dating back to Jefferson, have on occasion refused to spend funds appropriated by Congress, thus exercising a back-door line item veto, a practice held unconstitutional by the courts.

Jefferson refused to spend $50,000 in funds appropriated for the acquisition of gunboats for the U.S. Navy. In 1972, President Richard Nixon vetoed the Federal Water Pollution Control Act. Congress overrode the veto but Nixon reacted by impounding funds intended to aid in the development of water quality management plans. A year later, Nixon impounded $13 million in traffic and highway safety funds.

By that time Congress had had enough. It passed the Impoundment Control Act of 1974, effectively eliminating the president’s impoundment powers and requiring him to obtain congressional approval to rescind specific appropriations. Nixon signed the bill. He had little choice -- the administration was up to its eyeballs in the Watergate scandal by that time and it sought to avoid ruffling congressional feathers.

To that end, Rep. Tom Rice (R-S.C.) has introduced the Stop This Overreaching Presidency (STOP) Act, which directs the House to institute legal action to require the president to comply with the law. This resolution does not require a vote in the Senate since its directive involves only the lower chamber. More than 100 House Republicans have co-sponsored the measure.

Rice said the nation’s founders “designed a system of government based on a separation of powers. The legislative branch makes the laws and the executive branch enforces our laws. They did this to protect our very, very fragile freedom and we cannot allow those separations to be eroded.”

Regardless, should the Rice bill successfully make its way through the Republican-controlled House, the lower chamber will still lack standing, meaning it will face a federal judiciary that has traditionally sought to avoid getting caught in the middle of legislative-executive spats.

What might be the lone avenue left to Republican lawmakers, if they determine the president’s actions warrant it, is impeachment. A number have voiced some degree of support for the effort -- Rep. Paul Broun (R-Ga.), who is looking to replace the retiring Sen. Saxby Chambliss, being the latest.

Only two presidents have been impeached. Andrew Jackson avoided removal from office for firing his secretary of War in violation of the Tenure of Office Act by one vote in the Senate. President Bill Clinton was impeached for lying under oath about an affair. He likewise was acquitted. Nixon had articles of impeachment imposed on him but he resigned before a Senate trial could be conducted.

Even in this case, the probability that a Democrat-controlled Senate would vote to convict a president of its own party is hard to imagine. The only hope Congress might have is a voluntary retreat by Obama.

Under the Constitution, Turley said, Congress was provided with the power to establish federal law and the executive branch was obliged to faithfully execute those laws.

“For decades, however, Congress has allowed its core authority to drain into a fourth branch of federal agencies with increasing insularity and independence,” he said. “It has left Congress intact but inconsequential in some disputes.”