Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, explains why there may be no early constitutional resolution to lawsuits against the Obama administration for everything from Obamacare to immigration.
THE STATEMENT AT ISSUE:
“I believe that judicial review is needed to rebalance the powers of the branches in our system after years of erosion of legislative authority….The Executive is barred from usurping the Legislative Branch’s Article I powers, no matter how politically attractive or expedient it is to do so. Unilateral, unchecked Executive action is precisely the danger that the framers sought to avoid in our constitutional system. This case represents a long-overdue effort by Congress to resolve fundamental Separation of Powers issues.”
– Excerpt from a statement November 17 by Jonathan Turley, a constitutional law professor at George Washington University in Washington, D.C., discussing his acceptance of the task of filing a lawsuit by the U.S. House of Representatives against the Obama Administration. The lawsuit was filed in federal court on November 20. It does not name President Obama specifically, but he clearly is the symbolic target of the case. The President has been named in another new lawsuit, and probably will be in others to come.
WE CHECKED THE CONSTITUTION, AND…
The Founders who gathered at the Philadelphia Convention, and the delegates who later assembled in the state conventions to consider ratifying the new Constitution, spent many fevered hours debating how strong to make the presidency in the new government. With still-fresh memories of the abuses by the English Crown, that early generation wanted the new American Executive to have energy and the ability to act swiftly if needed, but it also wanted that power limited by a variety of structural obstacles – that is, checks and balances.
No one today can say, with any certainty, just how the Founders expected the clashes that they knew would inevitably come in the national power structure to be resolved, although it was not long before it became obvious that the new federal courts would play a key role in keeping order and maintaining constitutional balance.
At least since the time of President Franklin Roosevelt, in the aftermath of the Great Depression, the fears of an “imperial presidency” have been a part of America’s civic psyche. The Supreme Court so often thwarted Roosevelt’s uses of power – initiatives aided by a compliant Congress – that he ultimately retaliated with a plan to overwhelm the resistance by packing the court with what he hoped would be compliant Justices.
The court, of course, fought back, and the Roosevelt plan was foiled. But the constitutional struggle would not end at that point. President Harry Truman was just as smartly smacked down by the court as Roosevelt had been when, during the Korean War, Truman sought to nationalize the steel mills to keep them active in the midst of a labor union strike, to produce the sinews of war.
In perhaps the most famous Supreme Court opinion ever written on checking presidential power, Justice Robert Jackson in the Steel Seizure Case in 1952 spoke of presidential power being at its “lowest ebb” when the president acts in open or implied defiance of Congress.
Even that was not the last word, but the clashes between the authorities at the two ends of Washington’s Pennsylvania Avenue have not again been as intense or as consequential in constitutional terms as they were in those days some six decades ago. The cry of imperialism in the White House is still heard today, but it is not so apocalyptic.
It may be about to grow more raucous, however. The lawsuit that the House of Representatives launched against the Obama Administration last week – focusing on the alleged Executive excesses in implementing the national health care law (the Affordable Care Act) – arrived at a courthouse on the day after President Obama announced he was taking action on his own to change immigration policy.
When everyone else, on both sides of the immigration debate, was attacking or defending President Obama, it seemed odd that the House was only complaining about “Obamacare.” But there was a reason: that was the only issue on which the House had formally voted when it authorized a lawsuit against the White House. In time, that lawsuit may well be expanded to add complaints about the immigration initiatives.
But, even within its limits, the House’s lawsuit used all the provocative language about how a President had “usurped” the legislative authority of Congress. The usurpation claim was made after each of the specific legal challenges made to presidential action on health care.
The race to the courthouse, though, had actually been won, not by the House, but by a county sheriff in Arizona, who has been at the storm center of immigration policy for years – Sheriff Joseph Arpaio of Maricopa County. His lawsuit, reaching a federal courthouse in Washington within hours after President Obama had finished addressing the nation on immigration, directly named “Barack Obama” as the first “defendant.” And, in very strong language, the legal complaint accused the President of arranging for criminal aliens to be roaming the streets of Maricopa County.
The first two lawsuits, though, are not going to be the last. The secretary of state of Kansas, Kris Kobach, said publicly last week that he is putting together one or more lawsuits in which state governments will be suing, protesting the burdens of costs and governance that they will insist has been thrust upon them by the White House. Kobach, of course, has gained national notoriety as the architect of laws in several states to impose strict new controls on undocumented immigrants – made deliberately stringent in order to encourage those immigrants to “self-deport.”
The attorney general of Oklahoma, Scott Pruitt, has also vowed to get involved in court cases, saying the night of the Obama speech: “The executive action that the President proposed tonight is ill-advised, unworkable, unlawful, and brazenly political. The administration will be held accountable.”
Whatever legal merit any of the first or the later lawsuits may have, and lawyers and scholars are actively debating that now, they do have one significant drawback: unless the courts move with unusual speed, the cases may take at least a year, and perhaps a good deal longer than one year, to reach a resolution – even assuming that the courts allow them to go forward. In other words, there may be no early constitutional resolution of this fight.
In the meantime, other arenas of protest – mainly, Congress’s own legislative processes – may be considerably livelier than the sometimes ponderous pace and decorous demeanor of lawsuits.
