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American presidents have been issuing executive orders since the founding of the country. Abraham Lincoln issued an order to prevent a constitutional crisis. And years later, President Harry Truman used executive orders to integrate the armed forces and seize control of the nation’s steel mills. President George W. Bush issued nearly 300 executive orders while in office. So far, President Barack Obama has issued 184 executive orders covering a range of issues including health care, gay rights and immigration. Supporters argue executive action is necessary in the face of a gridlocked Congress. But critics say issuing too many executive orders violates the separation of powers in the Constitution and creates an “imperial presidency.” Diane and guests discuss the constitutionality of Obama’s executive orders and the political fallout from them.
- Jonathan Turley professor of public interest law, The George Washington University Law School.
- Stanley Brand partner, Brand Law Group and distinguished fellow in law and government, Penn State University, Dickinson School of Law; former counsel to House of Representatives (1976-83)
- Jeffrey Rosen president and CEO, The National Constitution Center; author of the forthcoming book, "Louis D. Brandeis: American Prophet" (June 2016)
- Susan Page Washington bureau chief, USA Today
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Like his predecessors, President Obama has issued dozens of executive orders ranging from the environment to gay right and the White House is expected to issue a major order on undocumented immigrants in the coming weeks.
MS. DIANE REHMHouse Republicans voted to sue President Obama over his executive orders on the Affordable Care Act. And some in Congress have even called for his impeachment. Joining me in the studio to discuss President Obama's executive orders and the legal and political fallout, Jonathan Turley of the George Washington University School of Law, Susan Page of USA Today and Stanley Brand of the Brand Law Group.
MS. DIANE REHMJoining us from member station WHYY in Philadelphia, Jeffrey Rosen of the National Constitution Center. I do invite you, as always, to weigh in, be part of the program. Call us on 800-433-8850. Send us an email to firstname.lastname@example.org. Follow us on Facebook or send us a tweet. And welcome to all of you.
MS. SUSAN PAGEGood morning.
MR. STANLEY BRANDGood morning.
MR. JEFFREY ROSENGood morning.
MR. JONATHAN TURLEYGreat to be here.
REHMThank you. And Susan Page, let me start with you. Remind us of some of the executive orders President Obama has issue recently.
PAGEWell, there was a big one in 2012 before the election when he signed an executive order that provided some protection for kids who were brought here illegally by their parents. It protects them, at least for now, from being deported. We've really seen a flood of executive orders and executive actions, though, since the State of the Union address in January.
PAGERemember, the president said he wasn't able to get things through Congress. He was going to use the pen and the phone and he has definitely used the pen. In January, he signed an executive order on gun control, on making it -- on mental illness and gun control, making it easier to make mental history part of background checks.
PAGEIn May, perhaps his biggest executive action, this was EPA rules that are aimed at climate change to cut power plants, but emissions at power plants, including current coal-fired plants. That's been very controversial. In July, two big ones extending rights for same-sex couples, banning workplace discrimination against LGBT employees of the federal government and of federal contractors.
PAGEAnd finally, most recently, an executive order that requires companies that have federal contracts to disclose labor law violations. It makes them harder for firms that have a history of abusing labor unions from getting federal contracts. And I can tell you we should expect to see more of these over the next year or so.
REHMAnd certainly, perhaps another one on immigration to come soon.
PAGEWe expect the president, in short order, to sign an executive order that extends protections to more illegal immigrants, possibly the parents of those kids who qualified under his previous executive orders. This could be an executive order that affects perhaps 4 or 5 million illegal immigrants who are in this country today.
REHMJeffrey Rosen, what does the constitution say about executive orders. How are they defined and what gives the president the power to issue them?
ROSENThe constitution gives the president the power to take care that the laws are faithfully executed. And dating back to long in American history, from President Lincoln's decision to suspend habeas corpus during the Civil War to Franklin Roosevelt's decision to intern Japanese Americans, presidents have used this power to issue orders that involve unilateral executive action.
ROSENNow, in terms of quantity, the American presidency project says President Obama has issued the fewest executive orders per year, at about 33 percent annually since Grover Cleveland. But the real way to think about it constitutionally is in the following terms. Here's the leading Supreme Court case. In 1952, President Truman tried to seize the steel mills to avert a strike.
ROSENAnd this was challenged as being beyond his authority to take care the laws are faithfully executed. The Supreme Court, in a 6-3 decision, said the president didn't have the authority to issue the order 'cause no congressional statute authorized the president to seize private property and his military power as commander in chief didn't expand to labor disputes.
ROSENBut the crucial concurring opinion that defines this entire debate was issued by the great Justice Robert Jackson and he identified three categories of presidential executive orders. He said when the president acts with Congressional support, his power is at its highest ebb. When he acts in the face of Congressional disapproval, his power is at its lowest ebb.
ROSENAnd when Congress hasn't spoken clearly, he acts in a zone of twilight, to use Jackson's wonderful phrase. So what we really might do is run through these executive orders and see where President Obama is acting in the face of Congressional disapproval and where he's acting in the zone of twilight. And my quick take is that most of these things are in the zone of twilight. There are a few examples where President Obama has explicitly and openly thwarted Congress' clear intent.
REHMAll right. And Jonathan Turley, we just hear that certainly compared with his predecessors President Obama has not issued that many executive orders. You're still very concerned. Talk about why.
TURLEYI am indeed. In fact, this came up. I've testified, I guess, in three congressional hearing where this has come up in every single hearing where members have looked at the quantity of executive orders and said, well, if you just look at the raw numbers, he's not so bad. And that's really a silly way to approach it because you can have a single executive order that effectively guts the authority of Congress or you could have 10,000 that mean nothing.
TURLEYAnd notably in the second hearing, the Democratic witness agreed on that point and said that it's silly to look at the numbers of executive orders, that that's not a measure of it. You have to look at what the executive orders actually say. Now, President Obama didn't create this shift of authority to the presidency, what I've referred to as uber presidency, but it has culminated under him, largely because of the great divide with Congress.
TURLEYBut it is a great concern and I think the Democrats are not seriously considering the implications of what we are creating within our system. This is not going to be our last president and the next one could use these very same arguments to suspend environmental laws or employment discrimination laws that every citizen has a great stake here in keeping a balance of the branches.
TURLEYI disagree with my colleague and friend Jeff in that I don't view most of these within the zone of twilight. I consider many of them to be clearly outside the lines of separation of powers. I'm also not a huge fan of Jackson, but the point is that we have lines of separation of powers and I think the president has clearly violated fair laws. I think he's clearly rewritten them.
REHMAt the same time, you would not disagree that the Congress itself has been in tremendous deadlock and has not been able to move very much forward.
TURLEYYeah. That's a curious argument that has come out of the White House, that, you know, we are living in divided times. The American people are divided in many of these areas and that is reflected in Congress. Congress is divided. And when a country is divided, less gets done. You either have to reach a compromise or you have to change Congress.
TURLEYBut what the president has suggested is that he simply resolving this division with Congress by ordering changes on his own terms, like a majority of one. And when he does that, he becomes a government unto himself.
REHMAll right. Let me turn to you, Stan Brand. You were counsel to the House of Representatives from 1976 to '83. How do you respond to what Jonathan has said? Do you think the president has gone too far?
BRANDLook. When we created the fourth branch of government, all these agencies, and we allowed the president and his delegees to fill up the details of how this legislation was going to be implemented, we created this system. This push and pull in every Congress, in every administration over how those laws are going to be interpreted, to me, the devil's in the details and how far he's gone in one case or another is an individual case.
BRANDI don't know how to measure it empirically. I don't try. I just think this is part of the inevitable push and pull between presidents and Congress. It happened in the Reagan years. Reagan exercised his authority in different ways. People in the Congress thought he was subverting the EPA by appointing people who didn't believe in it and didn't enforce the environmental laws.
BRANDAnd we had a major conflagration with the Reagan administration over that. We put Anne Gorsuch, head of the EPA, in contempt of Congress. So, to me, it's in the details. What authority has been given? What authority has he attempted to execute?
REHMSo would you, like Jonathan Turley, say that numbers don't matter.
REHMIt's really -- you would.
BRANDI would also say that what this does for me is a much greater issues, is in the war powers and the foreign policy area and the surveillance issue, which gets glossed over when we talk about these executive orders. To me, the much bigger threat is the war-making and war-initiating powers that presidents have exercised for 100 years without congressional consent.
REHMWhy do you think Republicans have come out so strongly here against President Obama?
BRANDBecause they sense he's weakened politically. When Richard Nixon, who's resignation 40 years we're celebrating this week, was president, two of the most important Congressional statutes, the War Powers Resolution and the Budget Empowerment and Control Act, were passed because Nixon was weakened. Those never would've been passed.
BRANDHe vetoed the War Powers Resolution. The Congress overrode his veto. So when a president is weakened politically, these attacks come more and they come more intensely.
REHMSo you think that that's what's going on here.
BRANDWell, clearly, it's what's going on because when they voted to sue the president, they voted to sue him over the most narrow fetish that they've had since the beginning of his administration, which is the Affordable Care Act. They haven't challenged any of his other supposed excesses.
REHMStanley Brand, Susan Page, Jonathan Turley, Jeffrey Rosen, they're all here to answer your questions after a short break.
REHMAnd welcome back as we talk about the various presidents issuing executive orders, how meaningful, how powerful that ability on the part of a president is. You'll hear from Jeffrey Rosen. He's in Philadelphia at the National Constitution Center. Stanley Brand, he's a partner in the Brand law group. He was former council to the House of Representatives. Susan Page, Washington bureau chief at USA Today. And Jonathan Turley, professor of law at George Washington, University.
REHMI know, Jeffrey Rosen, you wanted to weigh in on some of the things that were said in the last segment.
ROSENI do. I think my friend and colleague Jonathan Turley well sets out the terms of debate. Are the president's executive orders in Justice Jackson's zone of twilight or are they in the face of congressional opposition? So very briefly here's what I would say. Susan Page nicely laid them out. I would say that the ones involving the EPA and the labor orders and the antidiscrimination provisions against gays and lesbians are pretty clearly supported by previous congressional statutes like the clean air act and President Nixon and Johnson's orders prohibiting discrimination and congressional labor laws.
ROSENI think the ones that are maybe closer to the zone of twilight involve the gun orders and arguably the immigration orders. After all, congress refuses to enact the Dream Act and it is not an act of the kind of gun control that President Obama sought. But a refusal to enact a law doesn't mean that congress has exclusively forbidden in the presidential action.
ROSENAnd that's why I don't -- I can't really think of a single example that is clearly and explicitly in the face of a congressional statute to the contrary. And that's why I put all of President Obama's actions somewhere between the zone of twilight and where he's at his lowest ebb. The bottom line is that courts are not going to rule against the president unless he is openly and explicitly thwarting congress's will, and that's not the case here.
ROSENAnd then finally we ended up talking about this fascinating lawsuit that the House Republicans are threatening. I think most people believe the courts will not hear this lawsuit because of so called standing barriers where members of congress don't have standing to challenge it. Broadly these things are viewed as political questions. Courts are reluctant to intervene in disputes between the president and a congress about enforcement decisions. And therefore, if we were just laying odds, I would not expect this lawsuit to proceed very far.
TURLEYYeah, I can respond to a couple of those points. First of all to my friend Stan's point when he referred to why is this lawsuit focused on ACA which he described as a Republican fetish. The reason is this is actually the subject of three separate hearings. And when all of us were asked what is the strongest basis upon which to proceed, I and others said ACA is -- the Obamacare issues are probably the strongest.
TURLEYThe point is that this lawsuit also tries to establish access to the court. The Supreme Court has never rejected legislative standing, even though Jeff is right, the odds are always against the question on standing. But part of this lawsuit is to try to bring stability by getting the courts to do their job, to get more involved in minding the lines of separation. On those ACA questions, I think there's where you find the strongest cases.
TURLEYBut before I say that, the Dream Act issue that Jeff referred to I think is part and parcel to the problem here. The president asked for these changes in the Dream Act. He didn't succeed and so he ordered them unilaterally. That raises serious separation issues. But if you look at the ACA, we have very significant changes in the law that the president has ordered. These include changes that represent billions of dollars that are different in terms of the federal treasury. He has essentially rewritten those rules.
TURLEYNow, Stan is right. We've had this rise of the fourth branch where agencies are doing this increasingly in the areas of regulations. But that is quite worrisome. The center of gravity has moved.
REHMAll right. I want to read to you an email from Kevin who says, "If I understand Republican lawsuit correctly, they're claiming President Obama has exceeded his authority by extending deadlines for the Affordable Care Act. Has anyone attempted to explain how this action was different from President Bush's extension of various deadlines during the implementation of Medicare Part D," Stan Brand?
BRANDNo. But again I think the major issue is, can they get access to courts to referee this dispute. Traditionally the courts have been reticent as in somebody with a real personalized concrete injury, a plaintiff. They don't want to referee these disputes and typically they'll say, the president and the congress have adequate power to fight it out in the political realm. And we're not going to get into it unless there's some plaintiff who's been harmed.
REHMDo you personally think that President Obama has gone too far?
BRANDLegally or politically?
BRANDAs I say, I think we are glossing over a much bigger issue when we gloss over the foreign policy, the drone killings and some of the other issues. These domestic issues, which are to me issues of statutory construction and delegation, are much more -- much less the nerve center issues for us. On the immigration point I'd just say, congress has the power to write immigration and nationality rules. The president has no inherent authority to act in this area. He only has what congress has given him. So to the extent they haven't given it to him, I don't think he can just pick up his pen and decide to make law.
PAGEYou know, one thing to remember is this was not President Obama's preferred course of action on almost any of these fronts. These are issues on which -- including the -- on the clean air issue on the limits on CO2 emissions and on the immigration issue, where the White House initially thought they might be able to get legislation through. Now on climate change, that died in 2010. On immigration, it's only been in recent months where it's clear that nothing will happen on immigration during the rest of his tenure.
PAGEAnd that's the point where they turned to executive actions and executive orders, which they don't prefer because number one, there's legal questions about whether he can --how far he can go, and also because it's less permanent. The next -- what the president does with a stroke of the pen, the next president can undo with a stroke of the pen. So this is an expression really more of weakness than strength on the part of the White House. They're doing what they think they can do because they have been unsuccessful in getting things through congress.
TURLEYBut, you know, to answer you -- since you asked whether anyone could explain to your listener why the change of the deadline is different, it's because it's not just a deadline. People keep on referring to that because it's a spin. That date is also the date in which congress said you could not sell certain types of insurance policies. Those policies become unlawful.
TURLEYWhen the president unilaterally suspended that date, which was the subject of great debate in congress, when that date would be placed on the calendar, he effectively told companies, you can go ahead according to my authority and sell unlawful policies that the congress has said must stop at this date. It's not just simply some rollout date that you find in average regulations.
REHMAll right. And -- pardon me -- here's an email from Jesse in Maryland who says, "I'm as concerned as anyone about the growth of executive power but after the Bush Administration instructed the CIA to ignore the Geneva Convention, instructed the NSA and the HS to ignore the Fourth Amendment and began an unaccountable drone program that's been expanded by the Obama Administration, House Republicans now have the temerity to declare that delaying of deadline has threatened a rule of law," Jonathan Turley.
TURLEYWell, Stan and I have always been in agreement when it has come to the national security issues. You know, I represented both Democratic and Republican members in opposing the Libyan war. And then we -- that case failed on standing. But it is not an excuse to say that other presidents have violated these principles of separation. I have no dog in the political fight between these parties.
TURLEYBut Democrats have to understand that I believe they will rule the day when they remain silent and even support this president's expansion of authority. And when the next president comes around, they may find they have only hypocrisy left when they object to when the attention of the president turns to law they like.
ROSENThere's no question that my colleague and friend Jonathan has been principled in opposing the expansion of presidential authority when it comes to both parties. But as the question suggests, there's a huge difference between President Bush and more recently President Obama's decision to ignore clear statutory restrictions on NSA surveillance. Statutory restrictions that are so clear that the authors of the Patriot Act themselves, including Representative Sensenbrenner and Senator Leahy who said that they never intended to authorize the mass blanket collection of data.
ROSENThose are clearly within Jackson's lowest ebb category where the president is openly flouting explicit congressional restrictions. There's a big difference between that and the decision to delay implementation of the effective date of the Affordable Care Act. Simon Lazarus of the Constitutional Accountability Center has the best defensive of the decision to delay. He said that there are limited resources for implementing the law. And it's perfectly within the president's prerogative to phase in certain provisions before others that's not a flouting of the law. It's a mere prioritization of it.
ROSENSo I think the email is excellent because it clearly identifies the difference between openly flouting clear restrictions and operating in the zone of twilight.
REHMSusan Page, now there's been talk of impeachment. How much support is there on Capitol Hill for impeachment?
PAGEThere's not much support on Capitol Hill for impeachment. Three are some Republicans who talk about impeachment. And there are some Democrats who like to promote the fact that there are some Republicans talking about impeachment because it helps raise money from Democrats. It helps Democratic voters...
REHMWho first brought up the word?
PAGEGee, I don't know who first brought up the word, which is now referred to as the I word by many on the Hill. You know, I'll tell you who's not interested in impeachment and that would be John Boehner and the Republican leadership in the House. Because they understand that while politically speaking talking about impeachment helps gen up the most conservative Republicans across the country, it drives away independent voters.
PAGEWe know this from the impeachment of President Clinton that -- President Clinton's impeachment led to historic gains by Democrats in the 1998 midterm election because voters were so turned off by what Republicans were doing. So I think it's become -- impeachment's become kind of cheap proxy for opposing the president, not a realistic prospect.
REHMSusan Page, Washington bureau chief at USA Today. And you're listening to "The Diane Rehm Show." Jeffrey Rosen, what does the Constitution say about impeachment? Who decides what is an impeachable offense?
ROSENWell, it doesn't say much. Of course it specified impeachment in cases of high crimes and misdemeanors. And Congressman Gerald Ford famously said that impeachment is whatever the congress thinks that it is. But there are those including Jonathan Turley -- and I agree with him here -- who argue that the history has come to a different verdict. We've had two impeachments. Both have failed in the Senate and that's because the Senate has decided that although you don't need a technical violation of criminal law to have a successful impeachment, it has to be a serious and intentional desire to openly flout congress's will.
ROSENAnd President Lincoln's fights with congress during reconstruction, and certainly President Clinton's tussles with the independent counsel, reviewed not to have risen to that level. For all those reasons, although the house can impeach someone for whatever reason it likes, if it has the votes, it's pretty clear from history that the Senate is extremely unlikely to convict unless you have a president who's openly, willfully, flamboyantly refusing to enforce the law. And I don't think that anyone argues that that is what President Obama is doing.
REHMJonathan Turley, do you believe that the president's writing of these executive orders constitute impeachable offenses?
TURLEYI don't believe he's crossing an impeachment line, as Jeffrey talked about with what Ford quoted. It really makes my hair stand on end. You know, I testified during the Clinton impeachment and represented the last judge impeached in front of the Senate. And that line keeps on coming up. Very few people understand that Ford said that in his effort to impeach Justice Douglas, one of the most frivolous efforts in the history of congress. And you need a standard like that to achieve what he was trying to achieve. It was a clown-like effort.
TURLEYI -- the suggestion that just because the House can impeach by a certain vote, that it has no meaning, is ridiculous. The fact that the Supreme Court is the final word on the interpretation of law doesn't mean it has license to render arbitrary decisions. They all take an oath to the constitution. What President Obama has done I believe does cross the line in some cases. I've also testified that he does not cross the line in other cases. I think we'd probably all agree on some of those.
TURLEYBut those controversies have divided judges in lower courts. They are interpretive differences or disagreements. I think the president's wrong on some of them but that doesn't make for impeachment.
REHMAnd yet, Stan Brand, polls show that some 33 percent of Americans favor impeachment.
BRANDI think that's just the Republican Tea Party base who again has focused on all these things as part of a case against President Obama. You know, I think we've cheapened the impeachment currency ever since 1998. And I think that result has convinced the Republicans that it's a politically dangerous way to go. And that's why candidly I think they invented the lawsuit was to relieve the pressure on them to take the impeachment threat seriously and say, no, we're going to sue the president and deal with their own base in the House of Representatives.
PAGEYes, I think that's right. I think it's a way to satisfy the calls for impeachment without actually impeaching him. And, you know, someone, perhaps it was Jeff, said that there'd be a question of standing and this lawsuit may not go anywhere. I can tell you, that would probably be the preferred outcome of every participant in this whole charade except for the most fervent opponents of President Obama.
REHMWhat about Jonathan Turley? How would you feel if there were no standing for this lawsuit?
TURLEYWell, I've always been what you might call a standing dove. Walter Dallinger (sp?) , a friend of mine, is probably the greatest standing hawk. I've always believed that the standing rules have become much too stringent. In fact, it was a truly other worldly experience to watch Democrats on the floor embrace Scalia's view of standing. You wanted to call up and say, you do realize that Scalia represents the far extreme on standing. And that rule he was articulating has been used for decades to block environmental groups, public interest groups, and the Democrats were embracing it.
REHMJonathan Turley, professor of law at George Washington University. Short break. When we come back, your calls, comments. I look forward to hearing from you.
REHMAnd welcome back as we talk about executive orders, the prospect of lawsuits, where those lawsuits go from here, and even the prospect, however dim, of impeachment. Let's go to Billy, in Chicago, Ill. Hi there. You're on the air.
BILLYHi. Thank you so much for taking my call.
BILLYMy -- I'm going to pull off the road quickly. I'm driving back to Chicago. But my question was…
REHMGood. I'm glad you're pulling off.
BILLY…to Mr. Turley and those who have that opinion that he has. Because I feel like I hear it all the time. President Obama has gone far beyond his reach, that, you know, it's a potential problem for "future presidencies." I don't know a lot about executive order, but if I'm correct and it really was created as a way to insure that our president of the United States can move the country along, can make decisions that better the country, then really I don't feel like the debate really should be as to whether he has gone beyond his reach or not, but really why is he doing it.
BILLYAnd the answer is because our Congress is completely inept. They do nothing. So it forces the president. It forced President Bush, it forced President Clinton. It forces all of the presidents of the United States to make these executive orders when you have a Congress that does nothing.
REHMWhat do you think, Jonathan Turley?
TURLEYWell, I'm happy to answer. I'm from Chicago and we'll have to disagree on this and just agree on the Cubs. But the problem with that argument, it's the siren's call of every president that I can get it done, that you don't have to worry about Congress. Congress represents a division in this country. The president does not like what Congress has produced. There have been many bills sent from the House to the Senate where the Democrats have opposed it.
TURLEYThey disagree. And when you disagree you don't get as much done. That's not a license to go it alone. And what I would suggest is that when the Framers created this Constitution, one of the things they looked at most seriously was called the Royal Prerogative. This was the argument the English kings, that they could take laws passed by parliament and use a type of reason -- natural reason is what James I called it -- and rewrite it or implement it in different ways.
TURLEYThat was the rallying point for Thomas Jefferson, Roger Sherman, James Wilson. They all raised that as saying we're going to carefully define executive powers to avoid this. There's no mention in the Constitution of executive orders. That's a creation that we all accept because the president does have to speak to his agencies. But it has ballooned now into this argument that if the Congress doesn't give the president what he wants, he has the license to go it alone. And there is no such license in the Madisonian System.
BRANDI think there's a lack of appreciation for how many obstacles the Framers put in the way of getting things done. And when we get into these political fights -- and I agree with Jonathan -- it's a deeply divided country. It's not just a divided Congress. And so the Congress reflects the country. The Framers made it very, very difficult to get things done.
BRANDWe don't have a parliamentary democracy. And so the difficulties are built into the system. And so it's not enough to say, well, they can't get anything done and therefore the president can occupy the vacuum. That isn't the way it works.
ROSENYou know, it doesn't really make sense to talk about the Constitution not explicitly authorizing executive orders, because it also doesn't authorize the post-New Deal administrative state. And there are those in the Tea Party and even on the Supreme Court who call into question the Constitutional validity of the EPA and the Federal Reserve and much of what the federal government does, but that's a radical view. It's really not accepted by most judges or most Americans.
ROSENThis incarnation of the executive prerogative, rooted in John Locke's "Second Treatise Of Government," which inspired the American founders and said that the legislative branch stands above the others because there can be one supreme power, which is the legislative, to which the rest must be subordinate -- has been overtaken by nearly 200 years of history in which we've had a post-New Deal administrative state grow. And all of that has been blessed by the Supreme Court.
ROSENBut I do agree with Jonathan and maybe would question the excellent questioner who says President Obama has to do this. The truth is every time presidents have tried to act in the face of Congressional opposition or without Congressional support, they've gotten beaten back by the courts. That's what happened to President Bush when he tried to establish military commissions without Congressional support, and with the surveillance and so forth.
ROSENThe courts kept beating him back. Then President Bush went to Congress and Congress gave him everything he wanted. So, although I think that everything President Obama is doing is Constitutional, it's not a great political strategy because, in the end, unilateral action is not likely to produce good results.
REHMAll right. Now, tell me about this lawsuit, Susan, and what the lawsuit accuses the president of and what's going to happen next.
PAGEWell, Republicans have -- in the House, have voted to approve this lawsuit, which accuses the president of overreaching his authority when it comes to implementation of the Affordable Care Act. Now, Republicans make a much larger argument about overreaching in general on whole host of fronts, but this lawsuit is more narrowly drawn. We think the lawsuit is not going to be filed.
PAGEIt will go into the process of trying to figure out if the courts will hear it. And then if it gets heard and decisions are made we think they'll be appealed. If this lawsuit goes forward, beyond the filing, if the courts agree to consider it, we think this'll take a couple years and it will be a -- not only a new Congress, it'll be a new president dealing, likely, with the final outcome of this lawsuit.
BRANDDoes anyone remember Fast and Furious? The House of Representatives sued Eric Holder over two years ago. And that's a narrow case of a subpoena enforcement. That case is still in the district court. Hasn't even emerged yet from there.
ROSENIt's true that the precedents are completely against this lawsuit. People sued Clinton for his executive order establishing environmental protections. And that was dismissed for lack of standing. The line item veto was challenged and the Supreme Court rejected that as well. Just to put the opposite -- the arguments on the opposite side on the table, the lawyers for the House say this time is different, especially if there's formal authorization for the lawsuit, which is supposed to be the case in the House here.
ROSENThe Supreme Court has said that we attach some importance to the fact that members of Congress have not been authorized to represent their Houses. The claim here is when they are authorized that should be different. The other argument is that if there's no feasible political remedy, then court should step in. But, again, neither of these arguments have gotten much traction in the courts so far.
PAGEYou know, one other point we might make about the argument over implementation of the Affordable Care Act and the delay in some deadlines was -- is that the White -- of course Congress passed the Affordable Care Act and there were some fixes that usually happen in big pieces of legislations, things that they got wrong or that you want to tweak or with the passage of time you need to adjust. And under kind of a normal course of business…
BRANDWhat we used to call technical and conforming (word?) .
PAGEExactly. Under the normal course of business. The administration might have been able to go back to Congress and say, "Let's fix these things so the Affordable Care Act works better." And Republicans who oppose the Affordable Care Act with every fiber of their being have refused to do any of these fixes. And that's one reason, I think, the White House went ahead with doing some of these changes on their own volition and not with Congressional authority.
REHMSo here's an email from Robert, "Can Congress override executive orders?" Stan Brand?
BRANDWell, in a sense they could rewrite the law more clearly. And they could…
REHMTake another few years.
BRANDYeah, and they could call back the delegated authority in some concrete way. That rarely happens. It just -- Congress passes these statutes often with broad delegations of authority because they can't come to consensus on exactly what the remedy is. So they kick the can to the agency to say, well, you figure out the details. You're the experts.
REHMSo how do you, Stan, see all this playing out? Will Republicans make any progress at all on stopping President Obama?
BRANDI don't think so. Certainly not in the courts. They have other tools, which they've used in other circumstances. They have oversight power. We all know about the IRS scandal. And they've spent a lot of time and effort on that. They have the appropriations power, which they've used at times. And those are heavy clubs.
TURLEYWell, first of all, I would just -- I don't it's entirely fair to Republicans -- and I have to say I agree with most of these changes. I voted for President Obama. But I don't think it's fair to the Republicans to say, well, you know, they wouldn't make these changes. Some of the changes that President Obama later implemented unilaterally, the White House initially opposed when the Republicans went forward to suggest some of these changes.
TURLEYAnd then there became this deadlock. But that's really not the issue. The question is not what is being done, but who should make these changes. Now, what Stan said is you've got the power of appropriations or the power of the purse. One of the reasons this lawsuit is happening is because President Obama has demonstrated vividly that the checks and -- on the executive branch, have largely eroded. You know, the power of the purse I think is one of the greatest Constitutional mythologies.
TURLEYYou know, in one of the complaints against President Obama is that he took $454 million from one part of the ACA and simply transferred it to another part, even Democrats denounced it. But he demonstrated that even when you use the power of the purse presidents can get around it because of modern appropriation realities. There's a huge amount of money sloshing around that the president can use.
TURLEYAnd then finally, I think in fairness to the Republicans, the provisions we're talking about we're not ambiguous. These are not the areas you normally find fixes. They could not be more clear from the perspective of Congress. And I also disagree that the president made these changes because there were limitations in resources. Many of these changes occurred after there was an outcry about the loss of insurance, the raising -- the rising costs of insurance and some of these changes took political pressure off the White House.
TURLEYI haven't seen any evidence that there was serious implementation problems on things like state versus federal exchanges in Section 1401, which two courts have just ruled on. One in D.C. said the president did violate the separations and did violate the statute. One across the river in Virginia said that he did not.
PAGEYou know, just thinking about what's ahead. One thing to look at is when this new immigration executive order comes forward, that the president has signaled he'll do sometime this summer. If you think things are inflamed now, they're going to be more inflamed, I think, with this action which will go further than he's gone before.
PAGEAnd he may be doing things that he has been saying for a couple years he didn't have the power to do when he spoke before audiences that wanted him to take some of these steps. So that will be an interesting and important debate to see. Another thing to watch for is in the November midterm elections it's entirely possible, perhaps likely, that Republicans will take control of the Senate, as well as the House. That will give Republicans a bigger ability to push back against the administration on some of these issues.
ROSENYou asked, "Will Republican succeed in stopping Obama?" I would say, if history suggests anything, it's that they will get some traction in the courts. Judges are always likely to buy some argument, no matter how off the wall it is. We saw just last week that the D.C. Circuit bought the claim that the decision to grant federally established exchanges tax exemptions was a violation of the clear text of the law.
ROSENWe had a wonderful debate here at the National Constitution Center where the author of that theory, Jon Adler, of Case Western University -- a friend and very distinguished professor -- predicted that it would not succeed in the courts. And yet the D.C. Circuit unexpectedly bought it. So as the lawsuits proliferate we'll also see related lawsuits over executive privilege and those often do succeed. There'll be arguments about obstruction of justice. Generally, we're going to see a big legal mess. Bad news for the country. Great news for Constitutional lawyers.
REHMAnd you're listening to "The Diane Rehm Show." Let's go now to Birmingham, Ala. Hi, Beth.
BETHThank you so much for hearing my opinion. I've listened to your show regularly.
BETHReally, it's valuable. I am ready for statesmen to be working together in Washington. All of this blaming is useless. It went back, you know, Republicans, Democrats, I don't care. There are things that people need to cross the aisle to come up with the best solution for. It all started with Newt Gingrich shutting down stuff. There's just no point in this stand-your-ground refusal to compromise and do the best for the country. That's my opinion.
REHMAll right. Thanks for your call. Susan?
PAGEBeth, I think you speak for a lot of Americans who look at how…
REHMI think exactly.
PAGE…Washington doesn't work and just wonder how much longer this can forward at a time when there's no question we've got big national problems that need to be addressed.
REHMAll right. And to Charlotte, N.C. Steve, you're on the air.
STEVEHey, thank you for taking my call.
STEVEI love your show.
STEVEI guess my statement or my question is why wouldn't the executive office want to go to the Supreme Court? Yeah, it's a waste of money, it's a distraction, it's a waste of time. Washington generally doesn't care about those things. But the Carter administration took the census to the Supreme Court just to solidify it, to make sure it was a more solid law.
BRANDWell, you never know the answer you're going to get in the Supreme Court. And so I think both the president and the Congress sometimes step back, rather than pursue a case in the Court because it could go against them. And they're stuck with the precedent. Look at the recess appointment case, which now has shackled the presidency with restrictions on use of the recess appointment power.
TURLEYWell, I think that the answer is partially that when the president said, "Sue me," to everyone, he didn't really mean it. He wants to go to court to oppose standing, to prevent judges from looking at these merits. I think he'd lose on some of the merits. I don't agree with Jeffrey as to the D.C. Circuit opinion. I thought the D.C. Circuit opinion was extremely well written. And I could see exactly why they reached that decision. I also like the 4th Circuit opinion.
TURLEYThis is an issue of what's called legisprudence. It involves how you define statutes. But the real issue here in my view is when you object to what's happening in Washington, I think much of it has to do with the fact that the courts have removed themselves from this process. They're there. Perhaps their most sacred duty is to mind the lines of separation so that the two political branches have a structure within which to work.
TURLEYThe courts, over the last few decades, have removed themselves. And that's left the two parties with just muscle politics and what we see in Washington. And that's the reason I lay a lot of blame on the standing doctrine that has become grotesque in my view.
REHMSo how are we going to see things stay the same or change moving forward, Susan?
PAGEI think, sadly, to have to tell Beth and everyone else, that I don't see much prospect for a change in the kind of political climate and dysfunction that we have in Washington, at least until the next presidential election. We thought the last presidential election…
REHMAnd even then?
PAGEWell, and then every time you have a presidential election you end up with a new president and sometimes with new control of Congress. So that -- but I would have to say that in the last presidential election, which was only a year and a half ago, you know, it was less than two years ago -- there was a feeling that maybe it would break the fever, that it would -- people would come to their senses. We've just had more of the same. And I see, really, no prospect -- absent some national crisis that we don't foresee -- for things to be different for the next two years.
REHMDiscouraging. Do you feel that way, Stan?
BRANDI just think it's the pendulum of history. And that's the period we're in now. I think Susan's right. It'll take some external threat or challenge to put us back on some median course. It will take redistricting these districts so that they're competitive, instead of all blue and all red. And that's going to take a while.
REHMGoing to take a long while. Stanley Brand, Susan Page, Jonathan Turley, Jeffrey Rosen, thank you all so much.
REHMAnd thanks for listening all. I'm Diane Rehm.
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