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

WASHINGTON – Congressional Republicans, seething over what they view as President Obama’s continued rule by fiat, are continuing to search for a way to stem a perceived blizzard of executive orders that dilute their legislative powers.

There’s only one problem -- lawmakers have few tools to curtail any White House overreach.

Stymied throughout much of his five-year term by Republicans bent on derailing his agenda, Obama declared 2014 to be “a year of action” and said he would “act on my own” to move his plans if the GOP continued to get in the way, noting that “I have got a pen and I have got a phone, and I can use that pen to sign executive orders.”

And he has, to a degree, carried through on that vow, especially when it comes to implementing the Affordable Care Act, Obamacare, by unilaterally delaying some of the law’s dictates. He also has moved to basically institute the DREAM Act, a bill that failed to pass Congress that affords protections to undocumented aliens who entered the U.S. as children.

Obama also moved to raise the minimum wage for new federal contract workers to $10.10 an hour, from the current $7.25, without seeking congressional consideration. The action was intended to pressure lawmakers into approving an increase for all minimum-wage workers, something Congress has yet to do. And then there were administration decisions to refuse to prosecute many low-level marijuana users and rewrite the work requirement found in welfare reform.

House Speaker John Boehner (R-Ohio) and others maintain the president, by employing executive orders to circumvent Congress, is tiptoeing around the separation of powers as outlined in the Constitution.

Boehner said Republicans are “going to watch very closely because there's a Constitution that we all take an oath to, including him."

"We have a Constitution,” Boehner said. “We abide by it. If he tries to ignore it, he's going to run into a brick wall."

Democrats generally dismiss GOP objections. Rep. John Conyers (D-Mich.), ranking member on the House Judiciary Committee, insisted that the president’s actions are “not really that much out of the ordinary.”

“Unfortunately, it appears that some here view policy disagreements as constitutional crises and proof of possible wrongdoing,” he said.

But some constitutional scholars disagree. Jonathan Turley, a professor at the George Washington University School of Law – who admittedly shares much of the president’s politics – acknowledges that Obama has breached normal boundaries, asserting that “when a president claims the inherent power of both legislation and enforcement, he becomes a virtual government unto himself.”

“A president is not required to enforce all laws equally or dedicate the same resources to every federal program,” Turley said. “Even with this ample allowance, however, I believe that President Barack Obama has crossed the constitutional line between discretionary enforcement and defiance of federal law. Congress is given the defining function of creating and amending federal law. This is more than a turf fight between politicians. The division of governmental powers is designed to protect liberty by preventing the abusive concentration of power. All citizens – Democratic or Republican or independent -- should consider the inherent danger presented by a president who can unilaterally suspend laws as a matter of presidential license.”

Tension between the executive and legislative branches of the federal government has existed since the founding of the republic. President Thomas Jefferson’s purchase of the Louisiana Territory was accomplished with dubious constitutionality and without congressional support – although a House vote to reject the acquisition failed by two votes. President Andrew Jackson closed the Second Bank of the United States in the face of strong congressional opposition, leading to his censure for what lawmakers considered his abuse of presidential power during what was called “The Bank War.”

There exists a long history of presidents expanding their authority and, thus, circumventing Congress. Obama’s direct predecessor, President George W. Bush, pushed the envelope by signing legislation passed by Congress into law while simultaneously issuing a “signing statement” that immediately modified the intent of said legislation.

Bush used signing statements to challenge about 1,200 sections of bills during his eight years in office -- about twice the number issued by all previous presidents combined, according to Christopher Kelley, a political science professor at Miami University in Ohio.

That practice drew stern objections from Democrats, but they faced the same barriers Republicans today confront in attempting to challenge Obama’s executive orders.

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.”