President Obama violated his oath of office (hardly for the first time, alas) when he issued an “executive order” forbidding deportation of millions of illegal immigrants. Indeed, regarding immigration laws, it turns out Obama has been operating outside the law for some years, having provided work permits for literally millions more immigrants than provided for by statute. His actions clearly violate the law, which declares that illegal immigrants are to be deported. He also clearly is intent on continuing this illegal conduct. Congress, as a result, is in a very difficult position. The president has declared he will veto any attempt to undo his illegal actions, and his supporters among Democrats in the Senate have succeeded, and will continue to succeed, in stopping the majority from stripping funding for those actions from the budget for the Department of Homeland Security. Should the impasse continue, past experience makes clear that the president will use the opportunity, and the Department of Homeland Security, to score political points. He no doubt will bring as much pain as possible to the American people (mile-long lines at airport security checkpoints come to mind) while continuing funding for his own priorities, thus forcing the Republicans to surrender.
Under such circumstances it is perhaps understandable that Congress would seek recourse in court. After all, the constitutional violation does not result from congressional legislation, but from the president’s choice to violate the law. And no attempt to pass a law fixing the problem seems likely to pass, let alone to survive a presidential veto.
Speaker of the House John Boehner has decided there is another option: sue the president. On the surface, this option may seem a good one. The ability to sue the president is an important means of maintaining the people’s freedom; one we share with surprisingly few free or semi-free governments, and one of which we should be very proud. One may recall, here, that when Bill Clinton was president, he was sued by a former state employee named Paula Jones. Upon being sued, Clinton claimed that he was too busy and too important to answer such charges. But the Supreme Court, to its credit, informed Clinton that he was susceptible to legal process like any other American. And the suit continued.
But does any of this really mean that the Speaker of our House of Representatives should be suing the president over his unconstitutional, illegal executive order on immigration? Of course not.
The president’s susceptibility to legal process arises from the praise-worthy fact that in our nation it remains the case, for now at least, that no one is truly and fully above the law. Not even high officers or government agencies can completely escape liability for their actions. One can sue the government, albeit within sometimes excessively narrow statutory limits. And one can sue the president in his personal capacity for acts done outside the duties of his office. But the idea that one branch of government would sue another branch over a dispute regarding the exercise of constitutional (or unconstitutional) powers is contrary to the logic of a government of separated powers.
We have been here before, of course. Back in the 1970s, Senator Barry Goldwater (among others) tried to sue President Jimmy Carter to prevent him from reneging on our treaty with the Republic of China (Taiwan) as Carter was seeking to normalize relations with the regime in Beijing. The suit was, properly, thrown out of court on the grounds that it raised a “nonjustifiable political question.”
The political question doctrine, like most court formulae of relatively recent origin, is twisted and convoluted in its principles and application. But its various prongs and elements come down to the determination that not all questions of public policy and governmental powers are specifically legal in nature. Indeed, most questions regarding the distribution of powers in our constitutional system are specifically placed within the purview of either the executive or (much more often) the legislative branch.
The longstanding determination on the part of the court that it should not decide on “political questions” agitating relations between president and Congress reflects an obvious point of constitutional government: no one branch gets the final say as to what the other branches can and cannot do. That is, despite the wide misuse of Chief Justice Marshall’s statement in the seminal case of Marbury v. Madison, it is not solely the court’s duty “to say what the law is.” All government officials have this duty, and each branch must make of the Constitution what it honorably can. That the leader of one such branch may lack honorable intentions toward our charter of government and our liberties does not empower another branch to make sweeping declarations regarding “what the law is.” Rather, it is up to each branch to defend its own turf through the means provided in the Constitution.
In the past, this fact of constitutional life has had tragic results, as when President Andrew Jackson refused to abide by the Supreme Court’s order forbidding removal of the Cherokee from their lands—an act leading to his apocryphal statement, “[Chief Justice] John Marshall has made his decision, now let him enforce it.” The result was a horrendous, unjust act and stain on the honor of our country—the removal of the Cherokee from their homeland on “the trail of tears.” It is easy, and necessary, to say that this should not have happened. But it is wrong to say that the Supreme Court could have prevented it. President and Congress (and state government) were united in a determination to commit an unjust act. At such a time mere declarations from the courts cannot possibly be effective. The result was tragedy. But such tragedies are the price of constitutional government; the remedy to such injustices rests, as it must, with those who hold the true, final measure of power in our system of government, members of Congress. If they refuse to act to protect the Constitution, institutions, and people of America the fault lies nowhere but with them.
This hardly leaves governmental officers or branches of government without tools for protecting themselves, the people, or the republic. The Supreme Court has the option of refusing to apply laws that have been improperly promulgated or that violate provisions of the Constitution. That is, the court can refuse to enforce a law that is not, in fact, the law of the land. The president has powers himself; in addition to the veto power, he has, most relevantly, the power of “prosecutorial discretion,” to refuse to expend funds and efforts in promotion of a law he believes takes too much effort and attention from enforcement of other laws. Some may think it improper to mention this last power of the president. Should he not enforce all properly promulgated laws? After all, his duty is to see that the laws (all the laws) are faithfully executed. And, of course, this is true, for the most part. But the president does have the power to defend his turf through his internal actions in running the executive agencies.
And Congress? Congress has the power to make laws, and to impeach and remove from office those who refuse to apply, enforce, and interpret them as they ought. The fact that Congress long ago abdicated its responsibilities as the primary governing body in our republic is a sad one. But there can be no substitute for the power of Congress to make laws and to demand on pain of removal that they be properly interpreted and executed by officers of the other branches of government. Running to the Supreme Court for help with a recalcitrant president merely empowers another branch with illegitimate power; it does not answer the problem of misapplied powers.
The president’s illegal, unconstitutional actions constitute a challenge to Congress to take back its control over the legislative process, the budget of the United States government, and the enforcement of minimal standards of conduct on the part of members of the other branches. While it certainly is true that no move to impeach President Obama would be successful under current circumstances, Congress should be spending its time fighting this president on the political level, through the budget and lawmaking processes, at the same time its members seek to remind the people (and their colleagues) that Congress has the right and the power, should it have the nerve to use it, to settle such disputes with finality.