Rather than take action under its own constitutional authority to curb what it believes are unconstitutional acts by the president, the Republican majority will now ask federal judges to curb the president.
Article 1, Section 9, Clause 7 of the Constitution says: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The Constitution thus gives the House the power to shut down any action by the Executive it deems wrongheaded, illegal or unconstitutional.
If the House refuses to permit funding for an action, the president cannot take money from the Treasury to pay for it.
The current government funding bill expires on Sept. 30—the last day of the fiscal year. If the House does not pass new legislation permitting funding for an Executive Branch activity after that date, the president cannot continue that activity.
At a press briefing on July 17, in response to a question from CNSNews.com, Speaker Boehner indicated he did not intend to use Congress’s power of the purse to defund actions by Obama that exceed the president’s legal authority.
“Now, when it comes to that issue, some of these actions that you could defund, there clearly isn’t, I wouldn’t guess, an appetite in the United States Senate to withhold those funds,” Boehner said. “That’s why we’ve decided that the more direct approach of suing the president is the right path to go down here.”
Boehner brought H. Res. 676 up for a vote on Wednesday evening. A report issued by the House Rules Committee explained its purpose and the reasoning behind it.
“This resolution authorizes the Speaker, on behalf of the House, to take legal action against the President or other executive branch officials for failing to faithfully execute the law with respect to the implementation of the Patient Protection and Affordable Care Act and related statutes,” says the report.
“The alarming increase in executive overreach has made such litigation necessary,” says the report. “House-authorized litigation serves as a direct and proportionate response to unilateral executive actions that have diluted Congress’ Article I power.
“Congress is the sole entity entrusted by the Framers with power to make law, as it is the body closest to the people by virtue of elections that take place every two years,” says the report. “This resolution seeks to protect Congress’ constitutional prerogative and asks the Court to fulfill its duty to guard the lines of separation between the branches as it has done since Marbury v. Madison.”
If Boehner moves forward to file suit against the president for usurping Congress’s legislative authority, it will then be up to federal judges to decide whether to stop the president from exercising authority Congress says he does not have—or give their judicial stamp of approval to what the House declares a usurpation by the president.
The Rules Committee report on H. Res. 676 cites a number of instances in which the committee concluded Obama exceeded his authority. These include, among others, delaying Obamacare’s employer mandate, releasing five captured Taliban from Guantanamo Bay without giving Congress advanced notice as required by law, and unilaterally acting to suspend enforcement of the immigration laws against some illegal aliens.
The Rules Committee’s report rejected the idea that the House should use its own constitutional power of the purse to prevent Obama from abusing his authority.
“Critics of the litigation have argued that the House could attempt to use tools otherwise available to the legislative branch to remedy executive encroachment into legislative powers,” says the report. “However, those options are inappropriate remedies to address the president’s unilateral actions, as none of them force the president to reverse course. One suggestion was to defund agencies or legislate again ‘for emphasis.’ However, the Founders never intended that Congress legislate twice just to ensure its laws have meaning.”
The Democrats on the House Rules Committee published dissenting views in the report. They rejected the substance of the Republicans’ complaint against Obama for exceeding his authority. But they also noted that the Constitution gives Congress it is own powers to curb excesses by the Executive Branch.
“Likewise, Article I of the Constitution gives to Congress powers such as those to: legislate (including to repeal statutes or disapprove of regulations, and including the incidental authority to conduct oversight and investigations); impeach; override vetoes; borrow money; regulate commerce; declare war; appropriate (and therefore condition the appropriation of) money; and, make all laws that are necessary and proper for carrying out their other powers,” said the dissenting Democrats.
“The Senate also has the power to ratify treaties and confirm presidential appointees,” they said. “Each of these powers has been used at one time or another to check the power of the president. The Framers of the Constitution as well as the courts ever since have said that these powers, and not civil actions brought in court, are the instruments with which these two political branches are to settle disputes between them.”
“In fact, one of the most dangerous possible consequences of this lawsuit would be an unprecedented aggrandizement of the Judicial Branch,” said the dissenting Democrats. “If Congress starts relying on judges, instead of the tools the Constitution actually gives us to check executive power, we will effect a transfer of a great deal of our authority to the judiciary.”