The House Judiciary Committee has held several hearings critical of President Barack Obama for acting in a manner that some members of Congress regard as a violation of his constitutional duty to see that the laws are faithfully carried out. One legislative remedy is HR 3857 (the Enforce the Take Care Clause Act). It would authorize either chamber of Congress, with a 60 percent majority, to file a lawsuit to compel the president to execute a law. The bill covers the promulgation of an agency regulation, issuance of an executive order and a presidential signing statement.
Some members of Congress have been successful in court. In the mid-1970s, Sen. Edward M. Kennedy was able to establish standing and prevail in court after President Richard Nixon had pocket-vetoed a bill with the Senate absent for four days and the House for five. Kennedy gained standing because the pocket veto deprived him of his constitutional right to override a veto and there were no legislative remedies available to safeguard his interests.
On other occasions, lawmakers were turned away in court because they could have obtained substantial relief from their fellow legislators through the regular legislative process. As the U.S. Court of Appeals for the D.C. Circuit explained in Melcher v. Federal Open Market Committee in 1987, in such cases it would be “an abuse of discretion for a court to entertain the legislator’s action.” Courts are likely to conclude it is an abuse of discretion for the judiciary to resolve the types of executive-legislative disputes identified in HR 3857.
Consider the current dispute over Obama’s public pledge to raise the minimum wage of federal contractors. His State of the Union message suggested he had some kind of independent authority to act if Congress failed to do so. In fact, it was widely understood that he would rely on statutory authority enacted in 1949 with regard to procurement policy.
That fact became plain on Feb. 12, when Obama issued an executive order to implement his policy. He cited this statutory authority: 40 U.S.C. 101. Congress is at liberty to amend that authority. The executive order also acknowledges that it is “subject to the availability of appropriations.” Congress could deny funding in part or in whole. Because legislative and institutional remedies are available, there is no reason to think that federal courts would agree to accept this type of lawsuit brought under HR 3857.
The willingness of federal courts to hear legislative cases is reflected in the current “Fast and Furious” lawsuit brought by the House. It responds to the decision of the Obama administration to withhold subpoenaed materials and its subsequent refusal to follow 2 U.S.C. 194, which requires the U.S. attorney to bring a contempt matter before a grand jury for possible prosecution. Instead of complying with that statutory procedure after the House held Attorney General Eric H. Holder Jr. in contempt, the administration decided that Section 194 does not apply when a president invokes executive privilege, as Obama did in this dispute.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.