Trey Gowdy to liberal law prof: If Obama can ignore parts of ObamaCare, could he ignore election laws too?

posted at 7:31 pm on December 4, 2013 by Allahpundit

The post on Jonathan Turley’s testimony at yesterday’s House hearing was well received, so here’s another seven minutes on executive power grabs from the same proceeding. Simple question from Gowdy to the legal panel: How far can Obama go? Now that he’s claimed the royal prerogative to not enforce immigration law against young illegals, not enforce O-Care’s employer mandate against businesses, and not enforce the new rules about “essential benefits” against insurers who un-cancel old plans, what else can he choose not to enforce? If Congress imposes a mandatory minimum sentence for certain offenses, presumably Obama could refuse to enforce that by granting blanket commutations for thousands of people convicted of those offenses. Presumably he could also refuse to enforce election laws. Why not? What’s the limiting principle?

If you watched last night’s clip, you can guess Turley’s response. The takeaway from all of this, really, isn’t that there’s no limit on the president, it’s that there’s no way of enforcing the limit. You might very well get a bipartisan group of federal judges to agree with Turley that Obama’s over the line. But they can’t issue that ruling without first hearing the case, and the vagaries of the law on standing to sue are such that often there’s no one who’s legally empowered to bring that challenge. The most productive thing that could come out of this hearing, I think, is an effort in Congress to expand standing for challenges to executive power. Two big problems there, though. One: Good luck getting Democrats to go along with it, especially at a moment when O’s power grabs are keeping some of the nastier political backlash to O-Care at bay. By covering his ass, they’re covering their own. Two: Even if the Senate flips next year and O is somehow pressured politically into signing a bill that would constrain his own power (good luck with that too), standing’s not a simple matter of passing a bill. There are constitutional components to it that can’t be changed by statute. You’d need an amendment, and there’s bound to be resistance both in Congress and in the state legislatures to the idea of expanding the Constitution to let private citizens potentially gum up the executive branch with lawsuits by making standing broader.

There’s an obvious compromise possibility, though. Why not pass an amendment expanding Congress’s right (and maybe the right of the state legislatures too) to sue instead? That would limit, if not eliminate, the risk of nuisance suits against the feds, and it would be true to the nature of separation of powers. When the president refuses to enforce part of a law duly enacted by Congress, Congress itself has suffered an injury. Pass an amendment to clarify that and you could potentially block O and his successors when they decide to expand the concept of prosecutorial discretion into de facto lawmaking power. No one’s keen on the idea of the judiciary having to referee fights like this, but it’s better than letting the president do whatever he wants whenever he feels it’s politically convenient to do so.


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Schadenfreude on December 5, 2013 at 11:41 AM

onomo on December 5, 2013 at 11:37 AM

Obama has essentially given himself the power of the line item veto. He knows that the Senate will never remove him from office while it is controlled by D’s. He also knows that if the R’s in the house impeach him it would almost certainly become a catastrophic political disaster for them. So, he is exercising raw power, just as Reid did by using the nuclear option.

The D’s are operating as though they will never be out of power. These new political realities they are creating will be used by the R’s when they win some elections. That is a prospect that none of us should look forward to with anything other than dread. They are setting precedents that are enormously dangerous to our future but they just don’t give a sh-t.

MJBrutus on December 5, 2013 at 11:44 AM

The checks and balances of the Constitution are premised around the acceptance of the checks and balances by each of the three entities. If one or more of the entities start to believe that they are not accountable to the checks and balances – then this will break down.

One of the challenges of the Founding Fathers was trying to anticipate how an usurper would attempt to circumvent the unique document they drafted. They appeared to consider that even someone seeking an unprecedented expansion of powers would be curtailed by either the other elements of government, or by those within the government whose loyalty would be towards the country and the constitution as opposed to an individual or a party.

Unfortunately, today, within one party in particular, the loyalty is more to the party and individual than to the Constitution which they see, as rockmom correctly notes, as flawed, old-fashioned, and far too limiting.

What makes this Administration’s movement into tyranny so challenging is that the votes needed to impeach, for Congress to reassert it’s role, will not be there because of the Democrats whose loyalty is to their party, not the country or constitution. Adding to this are the ideologues in key positions within the Executive Branch, like the AG, who provide additional ‘cover’ for the abuses of power by their decisions to selectively enforce the laws of the land.

We need to remember that with the Constitution, there was one entity that the Founding Fathers ultimately counted on to step up and stop an usurper from bringing tyranny and totalitarianism to the country – the people. They hoped that elections would be the primary step to hold the government accountable to the people…but as de Tocqueville noted, once the government started to bribe the people with their own money, the republic was at risk.

The last backstop against tyranny will remain the people, with the people taking up arms yet again to fight tyranny.

This Administration sees this – which is why they are trying to keep the people under their boot, divided and impotent.

Athos on December 5, 2013 at 11:55 AM

Athos on December 5, 2013 at 11:55 AM

Excellent write up, with the exception of your penultimate sentence. The idea of armed revolution as remedy is an anachronistic and quite frankly, in this day and age, crazy fantasy.

MJBrutus on December 5, 2013 at 12:01 PM

Its not Obama’s fault he didn’t know about the Constitution until he read about it in the same article that you saw it in.

pwb on December 5, 2013 at 12:02 PM

The solution is either amendments to spending bills or budgets that restrict spending on such behavior, or cuts to budgets as punishment for the Presidents actions, or other riders to bills or budgets that give standing that will be hard for the President to veto.

There is also impeachment, first of the inferior officials that implement the illegal Presidential policies, or of the President himself.

Don’t expect John Boehner to do any of that because he supports Obama.

federale86 on December 5, 2013 at 12:20 PM

This is only possible with the collaboration of both, the media and the opposition (both of which are in the Dems pockets).

neuquenguy on December 5, 2013 at 12:27 PM

The last backstop against tyranny will remain the people, with the people taking up arms yet again to fight tyranny.

This Administration sees this – which is why they are trying to keep the people under their boot, divided and impotent.

Athos on December 5, 2013 at 11:55 AM

Also trying to get the guns away from the people.

This Administration has also systematically attacked not just the separation of powers, but most of the Bill of Rights. The First, Second, Third, Fourth, and Fifth Amendments which are the real guarantors of liberty in our Constitution are under constant attack. This is entirely intentional.

Our Constitution is really just a piece of paper. It is dependent on people of good will who believe in it to follow and enforce it.

rockmom on December 5, 2013 at 12:44 PM

Excellent write up, with the exception of your penultimate sentence. The idea of armed revolution as remedy is an anachronistic and quite frankly, in this day and age, crazy fantasy.

MJBrutus on December 5, 2013 at 12:01 PM

Uh huh. Suck it MJBarackus

Nutstuyu on December 5, 2013 at 12:51 PM

Constitutional Amendment giving Congress and States standing, v. Rule-7.62!

The choice is theirs.

Another Drew on December 5, 2013 at 12:54 PM

Several folks have mentioned the R’s using these same bits when they next come to power. I don’t foresee them using it to achieve conservative ends, sadly. However, I would suggest that GOP leadership read Piers Anthony’s Bio Of A Space Tyrant series in preparation. Especially the fourth book, Executive.

GWB on December 5, 2013 at 1:09 PM

Why can’t we just impeach the SOB?

Maddie on December 5, 2013 at 1:25 PM

Nutstuyu on December 5, 2013 at 12:51 PM

LMFAO! Oh, look, Mr. Big-and-Brave-Tree-of-Liberty has showed up to anonymously call others names. Yeah, I’m sure that you’ve got your armed revolution to overthrow the US government all planned out and ready to go.

MJBrutus on December 5, 2013 at 1:30 PM

Gowdy is uncharacteristically subdued here.

verbaluce on December 5, 2013 at 1:35 PM

I want the Democrats destroyed, publicly, painfully, humiliatingly, financially, etc – to the point that *no one* ever wants to publicly associate themselves with that party or ideology for generations for fear of what awaits them.

Midas on December 4, 2013 at 8:52 PM

The Democrat Party needs to become like the Nazi party–banned in most European countries.

Nutstuyu on December 5, 2013 at 1:59 PM

LMFAO! Oh, look, Mr. Big-and-Brave-Tree-of-Liberty has showed up to anonymously call others names. Yeah, I’m sure that you’ve got your armed revolution to overthrow the US government all planned out and ready to go.

MJBrutus on December 5, 2013 at 1:30 PM

“armed revolution to overthrow the US government all planned out”

You keep using this word ‘revolution’. I do not think it means what you think it means.

Nutstuyu on December 5, 2013 at 2:02 PM

The real kicker here is that there’re basically two people to blame for the lack of standing to challenge executive action (or inaction). And they are, Antonin Scalia and Samuel Alito.

As required reading, consider this but, more so than anything, an earlier paper by Scalia:

Antonin Scalia, “The Doctrine of Standing as an Essential Element of the Separation of Powers,” 17 SUFFOLK U. L. REV. 883 (1983).

As well as his foundational opinion in Lujan v. Defenders of Wildlife, here.

Succinctly, Scalia’s point in all of the above is that standing, and the limitations it imposes, are constitutional in nature. So this windmill against which you choose to joust is one of the conservative legal academy’s own creation.

It might be worth putting this problem in the larger political context. Several of our institutions are being stretched to the breaking point. The filibuster was never intended to be used as often as it has been lately; nor was the executive intended to have this wide-ranging power of enforcement and non-enforcement. But both sides have indulged them over the years — remember Bush and “signing statements”?? — so now it’s part of the constitutional landscape.

If you want to push a reset button, I encourage you to do so. But I doubt it will happen, because to put us back on path, both sides will have to lose a little.

Marius23 on December 5, 2013 at 2:21 PM

“What election laws?”

Ward Cleaver on December 5, 2013 at 2:22 PM

Glad to see the press covering the fast food strikes and Obowma’s pledge to tackle income inequality for the little guy…

… Did you see who will be judges on American Idol this year?

I wonder what Kim Kardashian is up to today…?

Seven Percent Solution on December 5, 2013 at 3:20 PM

The checks and balances of the Constitution are premised around the acceptance of the checks and balances by each of the three entities. If one or more of the entities start to believe that they are not accountable to the checks and balances – then this will break down.

One of the challenges of the Founding Fathers was trying to anticipate how an usurper would attempt to circumvent the unique document they drafted. They appeared to consider that even someone seeking an unprecedented expansion of powers would be curtailed by either the other elements of government, or by those within the government whose loyalty would be towards the country and the constitution as opposed to an individual or a party.

Unfortunately, today, within one party in particular, the loyalty is more to the party and individual than to the Constitution which they see, as rockmom correctly notes, as flawed, old-fashioned, and far too limiting.

What makes this Administration’s movement into tyranny so challenging is that the votes needed to impeach, for Congress to reassert it’s role, will not be there because of the Democrats whose loyalty is to their party, not the country or constitution. Adding to this are the ideologues in key positions within the Executive Branch, like the AG, who provide additional ‘cover’ for the abuses of power by their decisions to selectively enforce the laws of the land.

We need to remember that with the Constitution, there was one entity that the Founding Fathers ultimately counted on to step up and stop an usurper from bringing tyranny and totalitarianism to the country – the people. They hoped that elections would be the primary step to hold the government accountable to the people…but as de Tocqueville noted, once the government started to bribe the people with their own money, the republic was at risk.

The last backstop against tyranny will remain the people, with the people taking up arms yet again to fight tyranny.

This Administration sees this – which is why they are trying to keep the people under their boot, divided and impotent.

Athos on December 5, 2013 at 11:55 AM

This is the crux of the problem, all right. The Founding Fathers tried to balance one power against another, and the assumption was that the Congress would not let the president get away with subverting the laws they passed by simply declining to follow them.

But there were some things they failed to anticipate. One was the rise of political parties, which means, in this case, Congress is more loyal to the Democratic party than to their own prerogatives and powers.

The only structural remedy I can see is to make it easier for a minority of Congress to force oversight of the president.

The other thing that the Founding Fathers really failed to anticipate was the rise of judicial activism, but that may not be relevant to this particular problem.

There Goes the Neighborhood on December 5, 2013 at 4:05 PM

The democrats have made winning elections a science yet the media is deaf and the republicans are mute. The facts point out that fraud was rampart when 158% of the population in some district voted for Obama also districts voted 100% for Obama. Up there in Wisconsin they recounted the votes until they won, replacing a Congressman.

mixplix on December 5, 2013 at 6:00 PM

Excellent write up, with the exception of your penultimate sentence. The idea of armed revolution as remedy is an anachronistic and quite frankly, in this day and age, crazy fantasy.

MJBrutus on December 5, 2013 at 12:01 PM

Why, because people are just dumber today? How is this day and age any different? You still need water, food, and shelter right?

46blitz on December 5, 2013 at 6:30 PM

This Law Professor testified before Congress that Obama:

1) Has violated the Constitution NUMEROUS times to date…
2) Has total disregard for the Rule of Law and Constitution, as has been proven by his violating both…
3) Has no problem continuing to do so…
4) Is the very same threat to this nation that the Founding Fathers sought to prevent through the very creation and passage of the Constitution, the world’s 2nd greatest document every written, that has been the envy of the world and our guiding light for over 200 years…
5) Is creating an extremely dangerous atmosphere within the United States that could very well result in the nation’s destruction…

…and yet STILL no one has begun IMPEACHMENT procedings against this SOB! What are they waiting for?!

easyt65 on December 6, 2013 at 10:04 AM

@easyt65

Their cojones to drop perhaps?

astrocanis on December 6, 2013 at 2:13 PM

The D’s are operating as though they will never be out of power.

MJBrutus on December 5, 2013 at 11:44 AM

Or, they are operating as if it doesn’t matter if they are technically in power or not. Unfortunately, they are probably right. Certainly the current Republican leadership is far too “gentlemanly” to take up the precedents set by the Democrats, and it’s not as if they have the stones to roll back anything the Democrats have done so far.

Aitch748 on December 6, 2013 at 4:06 PM

Veto by bullet is one answer to executive tyranny…

Big John on December 6, 2013 at 5:00 PM

There’s an obvious compromise possibility, though. Why not pass an amendment expanding Congress’s right (and maybe the right of the state legislatures too) to sue instead?

This congress isn’t about to do something like that.

paulsur on December 7, 2013 at 11:01 AM

Trey Gowdy to liberal law prof: If Obama can ignore parts of ObamaCare, could he ignore election laws too?

Just when you think the republicans cannot possibly get any dumber….they surprise you again.

Hey Amnesty Lovin’ Trey Gowdy, why don’t you talk to your dumber than possum shinola gop leadership if you really really believe this crap you’re shoveling.

These republicans are just despicable. GET OFF YOUR ARSES YOU PIECES OF ______ AND DO SOMETHING BESIDES TALK ABOUT IT. Until then, you suck.

P.S.
You’re not getting a dime or time from me until we purge the party of these faux conservative skanks like Boehner, McConnell, Cornyn, Graham, Cantor, Paul Ryan, etc.

PappyD61 on December 8, 2013 at 7:17 PM

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