During this last week, the House of Representatives voted to enact the Enforce the Law Act by a vote of 233-181. The bill is unlikely to be adopted in the Senate, but it lends itself to conservative “talking points” about the Obama Imperial Presidency, so it struck republicans in the House as a worthwhile move. In the meantime, Senator Rand Paul, a potential candidate for the republican nomination as President, endorsed the attempt to counter the President’s choice of “writing his own laws whenever he feels like it.” Paul also complained that if the President likes a law, “he enforces it,” but if “he doesn’t, he won’t enforce it.” He concluded that the President thus needs to “be chastened, rebuked, and told that he needs to obey the constitution.” (See Erick Dolan, Rand Paul backs bill that could lead to crackdown on states where voters legalized weed, Mar. 24, 2014--www.rawstory.com/rs/2014/rand-paul-bakcs-bill-that c…)
The bill has generally been advertised as enabling Congress to “sue the president for failing to execute laws.” (Article II, Section 3 of the Constitution refers to the President and says: “he shall take Care that the Laws be faithfully executed.”) Members of the House have complained about, among other things, making what are deemed “unlawful” adjustments while implementing the Affordable Care Act, choosing to modify the circumstances when deportation will be pursued, and changed standards for implementing work requirements under welfare reform legislation. In addition, a committee report cited the administration’s decision not to intervene when states began to legalize marijuana use that conflicted with federal anti-drug laws. The Attorney General has stated that the Justice Department would not fight state marijuana legalization if the state “maintained an ‘appropriately strict regulatory system.’” (Erick Dolan, House GOP passes bill to force Obama to crack down on legal weed in states that allow it, Mar. 13, 2014). “The decision not to enforce federal drug laws is not a valid exercise of prosecutorial discretion,” the House committee report argues. The administration had infringed on Congress’s lawmaking authority by effectively amending the Controlled Substances Act.
But the ironies stemming from this bill, and especially of Senator Paul’s endorsement, abound. Senator Paul has supported states’ rights as to marijuana regulation in the past. One report I read insisted that he previously has supported the right to legalize marijuana. In 2013, Paul told Fox News that his goal was “not to legalize pot and synthetic recreational drugs,” but “not to incarcerate people for extended periods of time.” It was a fellow libertarian, the one who devised the commerce clause argument against the Affordable Care Act, who represented those who grew their own marijuana under a state’s “medical marijuana” act. But a conservative Supreme Court upheld the Bush administration decision to ignore state law and prosecute under the federal anti-drug statute. Now, despite supporting a federalism objection to the Affordable Care Act, and describing its individual mandate as an undue intrusion on personal freedom, a “libertarian” Senator endorses a proposed law that embraces enforcing federal legislation that seems to undermine both personal freedom and states’ rights.
Moreover, those on the right who have been most critical of the Obama administration have also complained bitterly about “activist” progressive judges who intrude too much on the decisions of the political branches. One result is that conservatives on the Supreme Court have generally defined the doctrine of “standing,” which limits who can bring various claims before federal courts, as broadly as possible. Such advocates historically have expressed the most skepticism of congressional attempts to perform “end runs” around the limits erected by the judiciary. But notice that one of the headlines of stories concerning the Enforce the Law Act is the one that says: “House Republicans Vote to Make it Easier to Sue the President.” Senator Paul is at least among the straightforward advocates on the right; he does not believe that the judicial restraint/judicial activism distinction helps us very much. So “right activism,” to retrieve the original meaning of the Constitution, is just fine with him.
Consistent with such premises, Paul endorsed the dissent by Justice Scalia in the case upholding the Affordable Care Act. But—as I often remind my law students—readers have to pay close attention to who is speaking in a given case: Scalia the “originalist,” or Scalia the “deferentialist.” As with most on the right, there is a general principle at work that explains how folks like Senator Paul can decide as they do: those who most strongly favor judicial restraint, and judicial and legislative rules that serve a restraining function, easily perceive another governing principle when they are seeking judicial enforcement of proposed rules they cherish rather than oppose.
There has been an important and meaningful debate during the last 40 years as to whether the nation has come to be plagued by a too-powerful President—what we often refer to as the “Imperial Presidency.” That debate continues, and some of President Obama’s critics are progressives who are convinced that he has acted with undue amounts of discretion in conducting both the war on terror and intelligence operations. They are, of course, now joined by conservative critics who fervently contend that the President now embodies the label of imperial. But notice that the conservatives were, with very rare exceptions, silent when President George W. Bush used so-called “signing statements” to basically assert a presidential power to ignore a law just enacted by Congress. The Senate, moreover, ratified the Convention Against Torture, that specifically requires nation-states to criminalize the act of torture. Yet there was not a peep heard when the Bush Justice Department contended that the President holds so much discretion as commander-in-chief, a federal statute prohibiting torture was actually unconstitutional because it invaded the President’s war-making power. This argument was made as to a law implementing a treaty that had been negotiated internationally by the Reagan administration—hardly an imposition on the power of the presidency.
Beyond these particular broad exercises of executive power, several defenders of Obama’s rather flexible approach to effectuating the Affordable Care Act, observe that the Bush administration made a number of similar adjustments when implementing the revisions to the Medicare statute enacted in its era. I confessedly have not done the minute comparisons that might be required to determine whether the Obama actions are at least analogous. What concerns me, however, is that I have never heard anything approaching an objective comparison between the administrations that could lead us to insights about how to strike the appropriate balances. It is difficult in such circumstances to resist the intuition that what may be going on here is more a manifestation of Obama derangement syndrome than a careful review of the exercise of executive power. It is certainly true that many Tea Party members of Congress were not in the Congress that sat silently by when debatable things happened during the Bush tenure; but this is not a group of legislators that inspires confidence as to their balance and objectivity.