Republican Assault on Executive Authority

The House will consider two bills aimed at obstructing the president’s ability to implement laws. H.R. 4138, the “Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act (“ENFORCE” Act); and H.R. 3973, the “Faithful Execution of the Law Act,” are both motivated by the Republican belief that President Obama has exceeded his authority in numerous respects, including the administration’s Deferred Action for Childhood Arrival Program (DACA), and several decisions by the administration to delay or clarify the implementation of certain provisions of the Affordable Care Act. However, these instances are grounded in the president’s well-established authority to exercise prosecutorial discretion and are consistent with prior practices by previous administrations.

H.R. 4138, the “Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act (“ENFORCE” Act) would provide a mechanism for one House of Congress to enforce the “take care” clause in article II, section 3 of the United States Constitution, which requires the president to “take Care that the Laws be faithfully executed.” This legislation would permit one House of Congress to file a lawsuit seeking declaratory and other relief to compel the president to faithfully execute the law. Any such decision would be reviewable only by the Supreme Court.
- H.R. 4138 is likely unconstitutional as applied: Congress is unlikely to be able to satisfy the requirements of Article III standing, by which the Supreme Court has required that the party bringing suit to have suffered a concrete injury caused by the challenged conduct.
- H.R. 4138 violates separation of powers principles: It will inappropriately require courts to decide political questions that are best left to the other branches to decide.
- H.R. 4138 empowers one House of Congress to be a general enforcement body able to direct the entire field of administrative action: It will enable the House or Senate to unilaterally file a lawsuit whenever it deems a president’s action to constitute a policy of non-enforcement.
- H.R. 4138 has the potential to impose limitless costs on taxpayers: The legislation includes no limitations on the costs, expenses or process by which the House or Senate may bring these legal actions, whether by use of outside counsel or otherwise. Due to the rushed process on this legislation the Congressional Budget Office has not yet been able to determine what these costs might be.
- H.R. 4138 could seriously undermine efforts to protect civil rights: Several of the most critical civil rights milestones could have been subject to unnecessary congressional challenge in the courts if this legislation had been law, such as the 1863 Emancipation Proclamation, which conflicted with the federal Fugitive Slave Act; and President Truman’s Executive Order 9981desegregating the U.S. Military in 1948.
H.R. 4138 Dissenting Views

H.R. 3973, the “Faithful Execution of the Law Act of 2014” would require the attorney general to report to Congress any instance when any federal officer establishes or implements a formal or informal policy to refrain from enforcing, applying, or administering any federal law as well as to state the grounds underlying any policy of non-enforcement. Current law only requires the attorney general to report instances when he or another Justice Department Official establishes or implements such a policy due to unconstitutionality.
- H.R. 3973 is a fundamentally flawed solution to a non-existent problem: This legislation is based on the false premise that President Obama has failed in his duty to take care that he faithfully execute the laws. The examples that proponents of H.R. 3973 cite merely illustrate the president’s exercise of enforcement discretion in light of limited available resources, which is not only within the president’s constitutional authority, but is required by the Constitution’s “take care” clause.
- H.R. 3973 presents political question problems: Requiring the courts to force the executive branch to explain its decision not to enforce a statute may in many circumstances pose serious problems of separation of powers.
- H.R. 3973 is impractical and costly to apply: The requirement of the attorney general reporting every single decision by thousands of federal officers regarding failure to fully enforce a law, would be impossible as a practical matter. It would also stretch already-limited enforcement resources to the breaking point.
- H.R. 3973 could threaten national security: Applying this legislation to the State Department would put the United States in the untenable position of being forced to disclose certain critical legal and policy positions to other nations – including our enemies – when it is not in our best interest to do so. For example, consider current developments in the Ukraine and Egypt. Section 508 of the Foreign Assistance Act prevents the executive branch from expending any funds to assist a nation whose leader was deposed in a coup. For a variety of reasons, the State Department has not yet stated whether the situations in either of these countries constitute a coup, and as a result has not yet enforced this provision of the Foreign Assistance Act. H.R. 3973 could require the State Department to prematurely make such a legal determination.
H.R. 3973 Dissenting Views

Republican Assault on Executive Authority

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