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“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”

  3. Nick Spinelli

    SWM, That’s an op-ed, OPINION EDITORIAL
    …
    ======================
    And Sqeeky said ” IMHO most of them are not racists” which makes it opinion too.

    Her opinion is a sacred opinion I suppose, because it agrees with your sacred opinion.

    Notice James Carrol, who SWM linked to:

    Carroll is Distinguished Scholar-in-Residence at Suffolk University, holder of the 2011 Alonzo L. McDonald Family Chair at Emory University, and a columnist for the Globe. He is author of ten novels and six works of non-fiction, including “Jerusalem, Jerusalem: How the Ancient City Ignited Our Modern World.”

    Something causes the mind to spin about from time to time.

    1. Dredd – he can be as distinguished a scholar as you want, but if it is not his field it is just an opinion based on limited information. If he has studied the area, then it would have been in the bio.

  4. And Squeeky, the use of quotation marks when you are paraphrasing is incorrect.

  5. Squeeky, excuse me? You expect me to treat you with kid gloves because we are both female?

    1. Squeeky – there are several attention whores on here. You have not risen to that level. What you have done is risen to the level of having to be demonized.

  6. Removed suspicious link:

    Nick Spinelli
    Lloyd, This has been a failed Presidency for several years. Worst President since WW@2.

    People always look in the rearview mirror and see better days.

    Let’s see what the historians think, since this is what they thought of GWB:

    Asked to rank the presidency of George W. Bush in comparison to those of the other 41 American presidents, more than 61 percent of the historians concluded that the current presidency is the worst in the nation’s history. Another 35 percent of the historians surveyed rated the Bush presidency in the 31st to 41st category, while only four of the 109 respondents ranked the current presidency as even among the top two-thirds of American administrations.

    A 2010 Siena ranking of presidential scholars rated Bush as one of the nation’s five worst presidents. A similar 2009 C-SPAN ranking put Bush in the bottom eight. http://theweek.com/article/index/243205/was-george-w-bush-the-worst-president-ever

    And when the GOP works so hard to make sure Obama fails,he is bound to take a hit. He has done many things that I disagree with. Using the Espionage Act too many times, threatening journalists with jail time, Afghanistan surge, trying to silence whistleblowers, not jailing banksters, bailing out failed institutions, Timothy Geithner, and others. But to say he is a failed president is hyperbole. He took a country on the precipice of an economic collapse and righted it. There has been 52 consecutive months of job creation – the longest job creation streak in history. He passed healthcare reform that could have been much better if GOP had at least contributed something. He ended the GOP, GWB, WMD Iraq war. Conflicts remain but at least American blood isn’t being spilled for nation building. For you ‘I hate immigrants’ fans, Obama has deported more than any other president. Improved energy efficiency standards, higher gas milage, cleaner air, fewer deaths and healthcare issues from coal plants, yet he dramatically increased fracking. He stopped fighting discriminatory actions against LGBT, ended DOMA, stopped the marijuana fight in states where it is legalized, consumer protections, fighting GOP voter suppression, the list goes on….. , as long as you aren’t blind.

    2. Jamie – when over 90% of college professors vote Democratic, I am surprised that Bush rated as highly as he did.

  7. Nick Spinelli

    SWM, That’s an op-ed, OPINION EDITORIAL. Come on, I expect BS from the clowns, but not you. Look @ Squeeky’s blog for chrissake. She knows more about birthers than anyone here.
    =====================
    Except their racism and denial thereof.

    1. Dredd – birthers are not racists. It is not racist to say that Obama was born in Kenya, even he claims a Kenyan father. Obama is more the racist by throwing his mother and grand-parents (white) who raised him, under the bus, so he could become ‘black.’ There are many things about the background of Obama that do not add up since he has hidden them from view.

  8. @Annie

    Geeeesh, talk about a “war on women “. I make a few very good comments , from my sick bed no less, and you imply that I am an “attention ho.”

    My goodness! Is it any wonder we keep bumping our heads on glass ceilings???

    Squeeky Fromm
    Girl Reporter

  9. Annie

    Dredd’s website is worth spending time reading it.
    ======================
    Thanks Annie.

    Like this blog, it is commercial free. And no cost.

    Somebody has to do it.

  12. SWM, someone is very very special here. We should all make sure we give her special attention.

  13. @Smarmmoremom

    No. I don ‘t think so. What you linked to is just an opinion. He has his. I have mine. Plus, I have my very own Think Tank on the subject with hundreds of articles I have written.

    Sooo, mebbe you should just believe ME rather than random op ed writer. OK ???

    Squeeky Fromm
    Girl Reporter

  14. SWM, That’s an op-ed, OPINION EDITORIAL. Come on, I expect BS from the clowns, but not you. Look @ Squeeky’s blog for chrissake. She knows more about birthers than anyone here.

    1. Dredd – there is no science in the social sciences. I do not care how hard you try and how many times you put that ‘cultural racism’ thing out there, it has no validity, unless you are self-identifying.

  18. @Smarmmoremom

    Well I am kind of a Birther expert. Sooo, IMHO most of them are not racists. Some are delusional. Some are purely dumb as a bag of hammers. Some are just overly suspicious.

    People who have that “inner klansman ” mojo going on tend to see them as racists .

    Squeeky Fromm
    Girl Reporter

  19. Thanks Nick. If this dialog had no value I wouldn’t participate.

  20. Annie

    The Bush Cheney regime were exposed for the liars and war criminals they are, but no one cared enough to do a damn thing.
    ========================
    Which is evidence that The Chain and The Bush II are members of the 1% epigovernment (Follow The Immunity). That this administration, the next one, and the one after that, cannot prosecute them is evidence that they control government.

    Which makes sense because “epi” means “over” or “above.”

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