Forcing him to threaten a veto was, of course, the whole point of these bills in the first place.
STATEMENT OF ADMINISTRATION POLICY
H.R. 4138 – Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law (ENFORCE the Law) Act of 2014
(Rep. Gowdy, R-South Carolina, and 11 cosponsors)
The Administration strongly opposes H.R. 4138 because it violates the separation of powers by purporting to permit the Congress to challenge in court the exercise by the President of one of his core constitutional functions – taking care that Federal laws are faithfully executed.
Congress ordinarily has the power to define the bounds of the Executive Branch’s enforcement authority under particular statutes, and persons who claim to be harmed by the Executive Branch’s actions may challenge them as inconsistent with the governing statute. But the power the bill purports to assign to Congress to sue the President over whether he has properly discharged his constitutional obligation to take care that the laws be faithfully executed exceeds constitutional limitations. Congress may not assign such power to itself, nor may it assign to the courts the task of resolving such generalized political disputes.
If the President were presented with H.R. 4138, his senior advisors would recommend that he veto the bill.
Translation: Congress is violating the separation of powers by trying to make Obama stop violating the separation of powers. The executive can summarily re-write key provisions of a momentous health-care law that was written and passed by the legislature (while offering no legal justification for doing so), but if the legislature tries to get judges involved to hold him back, well, that’s a constitutional bridge too far. Essentially, he’s arguing that because Article II leaves it to the president to faithfully execute the law, only O gets to decide whether he’s “faithfully executing the law” by selectively ignoring portions of it that benefit him politically. Remember, this is the guy who ran in 2008 promising to roll back Bush’s executive overreach because he was a law professor and knew the Constitution ‘n stuff.
But let me ask you this: Would any president respond differently? Would any president sign a bill like the one the GOP’s proposing and then, duly chastened, start to comply? The novelty of O’s power grabs isn’t that he’d go to the mat constitutionally to defend them; presidents are forever claiming that attempts by Congress to rein them in violate Article II. (The War Powers Act is a perennial flashpoint.) You could, in fact, argue that this is all part of the checks-and-balances process: As different branches compete for power, they naturally seek to vindicate their supremacy in court. What’s novel about O is that, transparently, he’s refused to enforce parts of a major law (a law that’ll define his presidential legacy, by the way) not because of any constitutional problem but because they’re inconvenient to him politically. He needs to suspend the employer mandate for a few years, not because some unforeseen complication in enforcing it has arisen but because his party’s royally screwed at the polls as this boondoggle pisses off more and more voters and he’s frantic to minimize the damage. If he can define “faithful execution of the laws” to encompass an excuse as weak as that, then Jonathan Turley’s even more right than we thought. But, having made the leap to nonenforcement for reasons of pure political expedience, it’s no surprise that he’d now threaten a court battle over his constitutional powers. Presidents always do.
Still, good optics by the GOP to squeeze this threat out of him. The only thing I don’t get is why he’d play along. The bills will die in the Senate. Why would O give conservative activists a new reason to get their base excited to vote in November when he didn’t absolutely have to?