August 7, 2014

Has Obama gone out of bounds?

GOP lawsuit should be seen as about more than executive orders.

The House has voted to authorize Speaker John Boehner, R-Ohio, to initiate lawsuits “to seek appropriate relief for the failure of the president … to act in a manner consistent with (his) duties under the Constitution.”

Underlying this battle are disagreements about the legitimate use of executive discretion.

The GOP maintains that Obama has failed to faithfully execute the law, as is his constitutional duty. The Democrats say either “things are not as clear as you think” or “we’re not doing anything Bush didn’t do.”

And both sides talk about how many executive orders Obama has or has not issued.

But this dispute cannot be resolved by counting the numbers of executive orders. On an annualized basis, Obama has issued fewer such orders per year than other presidents since 1933.

That tally is almost entirely irrelevant because executive orders are only one way a presidential administration can take action without congressional approval.

In the areas of his alleged abuses, Obama has taken almost no actions using executive orders. In many cases, he has conveyed orders in other written forms, principally with documents called “memorandums.”

In several of the most controversial instances, the White House issued no written directive at all. Instead, the discretionary action involved an executive branch agency, such as the Department of Homeland Security or the Internal Revenue Service, issuing a regulation about how a law would be interpreted.

The White House could have prevented agencies from taking these regulatory actions, but it did not do so.

Clearly, presidents do not have the unilateral authority to simply “fix” something that is wrong in a law. Normally, Congress and the president would work together to correct mistakes.

However, permissible agency discretion almost certainly includes delaying parts of a law’s implementation in the interest of achieving a better outcome for a program authorized by law.

It is noteworthy that House Resolution 676 authorized a court challenge rather than impeaching Obama. Traditionally this is the kind of political controversy that courts have declined to resolve.

If the House has a problem with the president, then it (together with the Senate) has all the legal resources it needs to restrain the president.

But Republican leaders understand that there is no chance of a conviction in the Senate, whereas there is some small chance of getting a favorable court decision in some court somewhere in the nation sometime between now and the midterm elections.

John T. Woolley, a professor of political science at UC Santa Barbara, is co-director of the American Presidency Project.

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