The Conservative Caucus Foundation recently released the following analysis of H Res 442.
Analysis of H Res 442
Stop This Overreaching Presidency (STOP) Resolution
This resolution, introduced on December 12, 2013, by Rep. Tom Rice (R-SC) and 29 cosponsors (now up to more than 100), would require the leadership of the House of Representatives to bring suit in the Federal District Court of the District of Columbia. The suit would challenge one or more of several actions taken by the Executive Branch under President Obama on the grounds that they represent a “continuing failure to faithfully execute the laws” of the United States.
This resolution does not require Senate action since it applies only to the House, and Section 1(d) directs that it be funded from amounts already appropriated for the use of the House of Representatives. Passage by the House would compel the House leadership to proceed with the lawsuit.
H Res 442 designates four actions of the Executive Branch for possible challenge. These are (1) failure to enforce the ObamaCare provision making certain health insurance policies illegal after 2013, (2) suspension for one or two years of the employer mandate in ObamaCare, (3) the treatment of some illegal aliens as if the DREAM Act had passed Congress, and (4) the waiver of work requirements in the 1996 welfare reform bill.
The foundational assumption of this resolution is found in Article II, Section 3 of the U.S. Constitution, which assigns to the president the responsibility that “he shall take Care that the Laws be faithfully executed . . . .” If the president believes that there is a problem with the law which requires change, he is to go to Congress and “recommend to their Consideration such measures as he shall judge necessary and expedient” (Article II, Section 3). The president himself is not given any legislative power by the Constitution. He cannot pass or amend laws. Instead, Article I, Section 1 clearly states that “all legislative Powers herein granted shall be vested in a Congress”.
Given the clear guidance of the Constitution, the remaining question is whether President Obama and his administration have exercised legislative power, rather than merely administering the laws passed by Congress. The facts in the four matters cited by this resolution make a strong case that constitutional violations have occurred.
The ObamaCare cancelation of health insurance policies
In the fall of 2013, as insurance companies began sending out the cancelation notices required by ObamaCare, it became obvious that supporters of ObamaCare had not spoken accurately when promising that anyone who liked his policy could keep it. Public opinion demanded that something be done. Members of Congress began introducing bills to allow insurance companies to continue offering the policies, at least temporarily, and the House of Representatives scheduled a vote on HR 3522 for November 15.
The President had an obvious opportunity to work with Congress and amend the law. Instead, one day before the House vote, he announced that he would allow state insurance commissioners to “extend current plans that would otherwise be canceled into 2014”. The law continued to say that such policies were illegal, and the President was unwilling to support any change in the law. Instead of following the constitutional process of amendment, President Obama simply made it know that he would refuse to enforce the law, and he encouraged the state insurance commissioners to follow his example.
Suspension of the ObamaCare Employer Mandate
Obama announced on July 2, 2013, that he would not enforce the law’s requirements for employer-provided insurance and the associated penalties beginning January 1, 2014. Instead, he suspended that portion of the law for at least one year. (He later announced that, for some employers, it would be suspended for a second year.) Section 1513 of the Act, which mandates the penalty, contains nothing that gives the President any discretion as to whether he will enforce the law. Nor was there any need for the President to act unilaterally. The House of Representatives passed legislation to make the one-year delay fully legal (HR 2667), but President Obama called on the Senate to reject the House bill and promised a veto if the bill reached his desk. Rather than follow the only appropriate constitutional procedure, he insisted on acting outside of his constitutional authority.
The DREAM Act
The supporters of the DREAM (Development, Relief, and Education for Alien Minors) Act, believe that children who were brought into the United States illegally by their parents should not be held accountable for the actions of their parents, and should not be treated as illegal aliens. Repeated attempts to persuade Congress to enact the bill have failed, leaving the laws regarding illegal immigration in full force against the bill’s intended beneficiaries.
As the 2012 presidential election approached, the President decided to proceed administratively as if the DREAM Act had been approved by Congress. The official announcement came from the Department of Homeland Security on June 15, 2012, affirming that illegal immigrants who met the standards of the DREAM Act could gain immunity from deportation and the ability to legally accept employment.
This decision was a clear refusal to enforce the existing law. The Obama administration has defended it on the grounds that the government has “prosecutorial discretion”. However, while prosecutors do have some discretion in deciding who should be prosecuted, this is normally applied to specific individuals in cases where mitigating circumstances exist. It is very unusual, and perhaps unprecedented, to exempt an entire class of more than one million people from prosecution. Furthermore, the administration’s actions go beyond mere refusal to prosecute, and actually provide the legal documentation needed to seek legal employment.
The 1996 Welfare Reform Act, passed by a Republican Congress and signed into law by a Democratic president, contained a requirement which forced many welfare recipients to go to work. The increased employment was regarded by many as one of the great successes of welfare reform.
The Obama administration has been granting waivers to states, allowing them to cease enforcing the “workfare” requirement, even thought the law itself remains on the books.
Given the above facts, the House appears to have a strong case that the Obama administration has acted in defiance of the Constitution. The Federal courts are the proper place in which to seek a remedy. However, those courts have been reluctant to take sides in disputes between the Legislative and Executive branches, and have avoided taking up the cases by declaring that a member of Congress lacks the “standing” to bring suit. This is a strong argument against proceeding with H Res 442, since attempting such a lawsuit could easily take more than a year and end without a trial on the merits. However, Rep. Rice argues that a suit brought by the House as an institution, rather than an individual member, might compel the courts to accept the case. Given the lack of precedent, his argument appears to have merit.
Anyone wishing to read the testimony given at the February 26, 2014 Judiciary Committee hearing on H Res 442 can find it on the Committee’s website, at http://judiciary.house.gov/index.cfm/hearings?ID=4B00641F-3944-4308-BF89-F68AA9FF4653
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