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

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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Jazz Shaw 5:31 PM on February 04, 2023