Strassel: The Next Prez and the Obama Way

Wall Street Journal Washington correspondent Kimberley Strassel lets her imagination run wild in a brilliant fantasy staff memo to the next Republican president outlining a plan — using Obama's  executive order precedent — to usher in a conservative agenda in his first four months in office.

What really counts in this town is precedent. And the ace news is that your predecessor blew up about 230 years of it. We’ve attached an 87-page list (check your spam box) of President Obama ’s unilateral actions: altering the ObamaCare statute; refusing to enforce federal drug laws; granting waivers to education reforms; using Justice Department suits to impose new industry rules; drafting agency regulations to go around Congress. Don’t forget 2014, when he rewrote federal immigration law. Like, all of it. By himself.

And here’s where it gets sweet. We’ve been analyzing the Obama team’s justifications. Some are p-r-e-t-t-y creative, but they boil down to this: Whenever a law is “unworkable,” or inadequately “funded”—and Congress won’t do anything—the president gets to act!  ... That’s you, boss. That’s you.

So here’s our plan for getting your entire agenda done—all of it!—by May:

Prosecutorial discretion: Love this. Your top item? Cutting taxes. We have two words and one number for you: Tax Code, 73,954 pages. Is there a more unworkable law? ROFL! We’ve got an executive order ready instructing IRS agents not to enforce the code on any person or company who refuses to pay more than our new rates. Goodbye Alternative Minimum Tax, death tax, capital gains, restrictions on nonprofits. Hello, flat tax on a postcard.

Speaking of taxes, do remember to thank Chief Justice John Roberts for declaring the ObamaCare individual mandate a tax. Not enforcing that one, either! That’s O-Care repealed. Check. You ran on reducing the regulatory burden. We’re sending a list of rules under major laws that you can instruct agencies and the Justice Department to no longer uphold. You know, the damaging stuff buried in the Clean Air Act, Clean Water Act, the Endangered Species Act, the National Labor Relations Act, Dodd-Frank, McCain-Feingold. All unworkable!  [snip]


Agencies: Justice now has time on its hands, so we’re setting up a task force to bring criminal charges against slippery characters (folks who, bonus, Americans love to hate): trial firms, union shops. Obama showed with his banking and BP suits that if we go big and ugly, we won’t even have to test legal theories; the targets will roll, and agree to new restrictions. That’s tort and labor reform done. And we’re already directing your agencies to start authorizing moves that Congress won’t: drilling off the East Coast and in ANWR; health insurance across state lines; school vouchers. Sky’s the limit!

The fantasy memo closes with this:

We could do the right thing; arguably should.  Then again, who will they be to complain if we don’t?

Boehner Considering House Lawsuit Against Obama

Speaker of the House John A. Boehner, R-Ohio, is considering a lawsuit on behalf of the U.S. House of Representatives against President Obama, "challenging the executive actions that have become the keystone of the administration," reported RollCall last week.

Boehner told the House Republican Conference during a closed-door meeting Tuesday morning that he has been consulting with legal scholars and plans to unveil his next steps this week or next, according to sources in the room. [snip]

Boehner’s legal theory is based on work by Washington, D.C., attorney David Rivkin of Baker Hostetler LLP and Elizabeth Price Foley, a professor of law at Florida International University College of Law.

Rivkin said in an interview that in addition to proving institutional injury, the House would have to prove that as an institution, it has authorized the lawsuit. A vote by the Bipartisan Legal Advisory Group would do so.

The suit would also have to prove that no other private plaintiff has standing to challenge the particular suspension of executive action and that there are no other opportunities for meaningful political remedies by Congress, for instance by repeal of the underlying law.

“Professor Foley and I feel that if those four conditions are met, the lawsuit would have an excellent chance to succeed. This is particularly the case because President Obama’s numerous suspensions of the law are inflicting damage on the horizontal separations of powers and undermine individual liberty,” Rivkin said.

Rivkin and Foley have argued in op-eds that most of Obama’s executive orders have been benevolent — that is, they have exempted classes of citizens from the law, for instance through deferred action for childhood arrivals. Therefore, no individual has standing to sue because the actions have helped people. Congress as an institution, however, can sue because the actions flout the laws it has have passed.

They have argued that short of impeachment, there is no other check to the president’s issuance of executive actions.

In Stopping a Lawless President, George Will argues a lawsuit remedy is preferable to an impeachment proceeding:

Advocates of extreme judicial quietism to punish the supine people leave the people's representative no recourse short of the extreme and disproportionate "self help" of impeachment. Surely courts should not encourage this. The cumbersome and divisive blunderbuss process of impeachment should be a rare recourse. Furthermore, it would punish a president for anti-constitutional behavior but would not correct the injury done to the rule of law.