“So Sue Me”: Presidential Taunts and Constitutional Consequences

President_Barack_ObamaBelow is my column yesterday in the Sunday New York Daily News on the unfolding controversy over President Obama’s unilateral actions to circumvent Congress. The pledge of the President to “go it alone” has already resulted in court losses for the Administration and a growing separation of powers crisis. I testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. I ran another column recently listing such incidents of executive over-reach that ideally would have included this potentially huge commitment under Obama’s claimed discretionary authority. I happen to believe that the President is right in many of these areas but that does not excuse the means that he is using to achieve these goals.

The unanimous decision of the Supreme Court late last month that President Obama violated the separation of powers in appointing officials is the type of decision that usually concentrates the mind of a chief executive. Obama, however, appeared to double down on his strategy — stating in a Rose Garden speech on Tuesday that he intended to expand, not reduce, his use of unilateral actions to circumvent Congress.

Summing up his position, the President threw down the gauntlet at Congress: “So sue me.”

George-W-Bush_jpegThe moment was reminiscent of George W. Bush’s taunting Iraqi insurgents over 10 years ago by saying, “Bring ’em on.” It was irresponsible bravado from a man who was not himself at the receiving end of IEDs and constant attacks that would go on to cost us thousands of military personnel. I imagine some lawyers at the Justice Department may feel the same way about Obama’s “sue me” taunt. They are the ones being hammered in federal courts over sweeping new interpretations and unilateral executive actions.

The renewed promise to go it alone is a familiar refrain from this President. He even pledged to take unilateral action to circumvent Congress in front of both Houses, in his State of the Union address this year — to the curious delight of half of Congress, which applauded wildly at the notion of being made irrelevant.

The President was as good as his word. When Congress failed to pass the Dream Act loosening immigration laws for certain groups, the President ordered the same result unilaterally. His administration also ordered massive changes in Obamacare — from lifting statutory deadlines, to exempting classes of business, to shifting hundreds of millions of dollars from appropriated purposes to other uses.
The political slogan of “no compromise” has migrated into legal strategy with disastrous results. That is precisely what happened in the recess appointments decision in NLRB vs. Canning. I testified on the President’s recess appointments in Congress after they were made and said that the nominations in my view were flagrantly unconstitutional.

The fact that the administration decided to force a confrontation on such a weak case shows not just a lack of judgment but a cavalier attitude towards the costs of such losses. While he clearly has authority to set enforcement priorities in areas like immigration law, Obama has repeatedly stepped well over the line of separation.

These acts of defiance of Congress often come with chest-pounding acclaim, but they also come with costs. For example, by violating the Constitution on recess appointments, a huge array of rulings out of the National Labor Relations Board could be invalid — creating havoc in the area.

Likewise, the President’s recent loss in the Hobby Lobby case, regarding contraception provisions of Obamacare, will require huge changes in such coverage . In a case that may be issued any day now in Halbig vs. Burwell, the D.C. Circuit could strike down another unilateral policy on tax credits under Obamacare that would mean that the administration wrongly committed billions of dollars without authority. That decision could jeopardize the very viability of health-care reform.

In our system, there is no license to go it alone. Rather, the Republic’s democratic architecture requires compromise. The process is designed to moderate legislation and create a broader consensus in support of these laws. Nor is congressional refusal to act on a particular prescription of how to fix the economy or repair immigration laws an excuse. Sometimes the country (and by extension Congress) is divided. When that happens, less gets done. The Framers understood such times. They lived in such a time.

While Obama did not create the über-presidency, he has pushed it to a new level of autonomy and authority. It is a model that Democrats may soon regret. Just as Obama has unilaterally rewritten federal laws and ordered the nonenforcement of others, the next President could use the same authority to gut environmental or employment discrimination laws. An über-President is only liberating when he is your über-President.

And whether it is “sue me” or “bring it on,” presidential taunts tend to play better politically than practically. The invitation for a congressional lawsuit may sound on its face like it’s welcoming judicial review, but it’s not. Obama’s administration has fought to block such review by challenging the right of members and citizens to be heard in federal courts.

President Obama’s taunt will no doubt be answered in kind. Indeed, the House is preparing just such a lawsuit. And so, our national politics have finally descended to the politics of the schoolyard playground. However, unlike on the playground, presidential taunts have constitutional consequences.

Jonathan Turley is a law professor at George Washington University.

New York Daily News June 6, 2014

185 thoughts on ““So Sue Me”: Presidential Taunts and Constitutional Consequences”

  1. http://www.msnbc.com/rachel-maddow-show/unfortunate-political-stunt-goes-awry “Earlier this year, Sen. Ron Johnson (R-Wis.) thought he’d come up with a great idea: he’d file a lawsuit against the Affordable Care Act in the hopes of making coverage more expensive for Capitol Hill staff. Rep. Jim Sensenbrenner, a Republican from Johnson’s home state of Wisconsin, conceded the senator’s lawsuit was “frivolous” and an “unfortunate political stunt.”

    Yesterday, in a development that was arguably even more important than it appears at first blush, a federal judge threw out the case.

    A federal judge based in Green Bay has tossed a Sen. Ron Johnson’s Obamacare lawsuit targeting the health benefits for members of Congress and their staff.

    The court dismissed the lawsuit, which contended the Obama administration decision to grant employer contributions for health plans purchased through the District of Columbia’s Obamacare health exchange ran afoul of the law.

    Chief Judge William C. Griesbach of the Eastern District of Wisconsin ruled that Johnson and fellow plaintiff Brooke Ericson lacked standing, siding with the argument made by the government’s lawyers.

    The hurdle for Johnson’s lawyers was always going to be difficult to clear: how would the Republican senator demonstrate he’d been harmed by the health care policy he doesn’t like? Remember, when filing a lawsuit challenging the legality of a law, plaintiffs can’t just say, “I don’t like it.” They need to show how they’ve been adversely affected by it.

    Johnson couldn’t, so his case was dismissed. But this is more than just a setback for one Republican senator with a partisan axe to grind; this is also likely the start of things to come for the GOP’s anti-Obama litigation.”

  2. The sad fact is that the President is now acting the same way the Congress has acted for the past 4.

    Obama is wrong to think he can just do whatever he wants because Congress refuses to do their job, but can we focus on that second part? The Minority leader of the Senate vowed to obstruct, and as history has shown, his petty hate for the President has been the very cause of the President taking this new-ish dictator role. The House is no better. How many times do we watch the Congress vote to repeal healthcare reform before we do something other than complain about it?

    The President is wrong, and so is Congress. Why isn’t Congress’ proclamation to not do the nation’s business until after Obama is out of office (if even then) tolerated? Let’s just call it what it is, the end of the American experiment with a Constitutional Republic. It has not gotten any better in my 40+ years, and I cannot understand why anyone would be stupid enough to think that one more election would do anything but push the failure along until the next election.

    This is our failure to uphold our duty as Americans to vote for people based on skill, character, and ideals. You can lie as say you don’t vote party, but the situation of being screwed regardless of which animal is in charge should be all the proof you need.

    The nation can be saved, but if we refuse to hold to the ideals of the Constitution and continue to allow our government to be bought like sport team endorsements, then we are doomed and it is our own damn fault.

  3. Squeeky, There’s something I notice about cultists, be they Dem or Rep. They are CLUELESS on even coming close to understanding free thinkers. They are in a very tiny box and find some weird comfort in it. So, they think everyone else must be in a box, either theirs, or those “other people’s” box. It is sometimes fascinating to watch, more often tedious.

  4. Die Löwen der Zwietracht sind zurückgekehrt.

    Ihr Lieblingsessen ist Apfelstrudel mit Streitereien.

  5. @Annie

    Oh, she gave me that about an hour ago. Then I drank and ate the peanuts. The pill is for pain but really just to help me sleep because my mind races all over the place when I am somewhere strange. I swear I hear voices in the wall up here and weird buzzings.

    Squeeky Fromm
    Girl Reporter

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