‘The Nation has “no right to expect that it will always have wise and humane rulers,’
As you know, House Republicans, minus five, passed HRES 676 authorizing the Speaker of the House to sue the President “the head of any department or agency, or any other officer or employee of the executive branch, to act in a manner consistent with that official’s duties under the Constitution and laws of the United States with respect to implementation of any provision of the Patient Protection and Affordable Care Act, title I or subtitle B of title II of the Health Care and Education Reconciliation Act of 2010, including any amendment made by such provision, or any other related provision of law, including a failure to implement any such provision.”
This resolution, while put forth by supporters to save the Nation from an imperial president putting us in a handcart to Hell, is seen by opponents as a non-starter, nothing more than a political ploy to rally the base.
The legal arguments seem weighed against a suit, the resolution now authorizes, gaining any traction in the courts because the courts have traditionally shied away from political conflicts between the branches. Scholars see no reason to believe such a suit would prevail if it were even heard and cite one opinion or case or another where what Obama is accused of is just normal tweaking of a complicated law, not a violation of anything.
But the real passion surrounding this resolution comes from supporters who, one after another, presented the need for the bill as an almost desperate attempt to stop a president who is writing his own laws, going his own way and who is only a few steps away from a fascist president inclined to take away our rights on any whim.
Whichever is true, or if both or neither are true, the resolution stirs some old contentions in both parties; that of a president ignoring the will of Congress expressed in legislation. That is a real issue about separation of power and one to be scrutinized, but to assign such a significant action as authorizing a lawsuit against the president over his waiving the employer mandate is not the vehicle. Certainly not when the issue of presidential power has been discussed regarding the behavior of just about all presidents since George Washington and was concerned with major issues like war and other tense foreign policy matters.
Politics catered to from the House and Senate floors is an easy thing to do with passion and hyperbole. Such a bully pulpit can make a president taking even minor initiatives look like a demon aiming to destroy the country. Americans, though, were not so influenced by the fear and loathing such rhetoric inspires. As Arthur Schlesinger, Jr. wrote 40 years ago in his book The Imperial Presidency, Americans seem to have held that the electoral and political party process would weed out any potential bad presidential candidate actors. But confidence in those processes has waned sharply in the past several years of partisan divide when all one has to do to be seen as Satan incarnate is be attached to an issue one party or the other opposes.
That might be exactly what we need to watch out for, though. An earlier Supreme Court Justice Davis wrote in ex parte Milligan, ‘The Nation has “no right to expect that it will always have wise and humane rulers, sincerely attached to the principals of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln.”
HRES 676 opens the door to discussion of a serious matter but the triviality of the issue bringing it to the floor (Obama’s waiver) leaves separation of powers an issue that continues unaddressed in any sober and practical way.
Why Incumbents Keep Getting Reelected
By Lee H. Hamilton
“…nearly three-quarters of Americans want to throw out most members of Congress, including their own representative, yet the vast majority of incumbents will be returning to Capitol Hill in January.”
It’s no news that Congress is unpopular. In fact, at times it seems like the only real novelty on Capitol Hill would be a jump in its approval rating. In June, a Gallup poll found members’ standing with the American people at a historic low for a midterm-election year. Which might have been notable except, as The Washington Post pointed out, that “Congress’s approval rating has reached historic lows at least 12 times since 2010.”
Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.